Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F18130
ELIA, J.Yasin Almalik (Almalik) pleaded no contest to one felony count of possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and to one misdemeanor count of resisting or obstructing an officer. (Pen. Code, § 148, subd. (a).) He admitted that he had served a prior prison term (Pen. Code § 667.5, subd. (b)), and had two prior narcotics/controlled substance convictions within the meaning of Health and Safety Code sections 11370, subdivisions (a) &(c), 11370.2, subdivision (a) and Penal Code section 1203.07, subdivision (a)(11).
The trial court imposed the mitigated term of three years on the felony possession count, plus one year for the Penal Code section 667.5, subdivision (b) allegation, and struck the punishment for the Health and Safety Code prior convictions. The court imposed a 180-day jail sentence for the misdemeanor resisting or obstructing an officer, to run concurrently with the prison sentence.
Almalik filed a timely notice of appeal in pro per based on the denial of a motion to suppress under Penal Code section 1538.5. Subsequently, appellate counsel filed an amended notice of appeal challenging the validity of Almalik's plea and requested a certificate of probable cause based on improper judicial plea bargaining, which counsel claimed had induced Almalik to waive his right to a jury trial.
On May 7, 2010, the trial court denied the request for a certificate of probable cause stating that the court "did not make any 'offer' to Defendant for resolution of this case. Rather, this court indicated a sentence were Defendant to enter a plea to the charge and admit all allegations before trial. A court giving an indicated sentence is not prohibited plea bargaining. [Citation.]."
Almalik sought a writ of mandate to compel respondent superior court to grant his application for a certificate of probable cause in this pending appeal. After reviewing preliminary opposition and the appellate record, we informed the parties we were considering issuing a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.) The People, real party in interest, chose not to file further opposition. We concluded that respondent superior court abused its discretion in denying Almalik's application for a certificate of probable cause. (Pen. Code, § 1237.5.) Accordingly, on December 8, 2010, we ordered the issuance of a peremptory writ in the first instance directing the superior court to vacate its post-judgment order and to issue a new order granting the certificate of probable cause. On January 19, 2011, the trial court issued the certificate of probable cause. Thereafter, on February 8, 2011, this court granted Almalik leave to brief the issue raised by the certificate of probable cause.
Subsequently, Almalik filed a supplemental brief in which he contends that Judge Marigonda engaged in improper judicial plea bargaining thereby inducing him to waive his jury trial right and enter a plea. Almalik requests that we reverse the judgment and remand the matter to the superior court to give him the opportunity to withdraw his plea.
Alternatively, Almalik asserts that because the trial court erred in denying his motion to suppress evidence (Pen. Code, § 1538.5), we must reverse the judgment and remand the matter to the trial court with directions to vacate the guilty plea and enter an order granting Almalik's motion to suppress evidence and thereby dismiss the case.
For reasons that follow, we agree that Almalik should be given the opportunity to withdraw his plea. However, we find that the superior court was correct in denying Almalik's motion to suppress evidence.
Facts and Proceedings Below
Motion to Suppress Evidence
Before he entered his pleas, pursuant to Penal Code section 1538.5, Almalik moved to suppress evidence seized as the result of a purported "warrantless detention" that occurred on July 21, 2009. In his memorandum of points and authorities Almalik argued that he was detained without reasonable suspicion that he was engaged in criminal activity and therefore all evidence that was seized subsequent to his detention was fruit of the poisonous tree. (Wong Sun v. United States (1973) 371 U.S. 471 [83 S.Ct. 407].)
In response, the prosecution filed a memorandum of points and authorities opposing Almalik's motion. The prosecution argued that there was reasonable suspicion to detain Almalik.
As Almalik pleaded no contest and is challenging the trial court's denial of his motion to suppress, we derive the facts from the transcript of the motion hearing. In accordance with our scope of review, we recount as true the officer's testimony. (See People v. Ayala (2000) 23 Cal.4th 225, 255 [on review of ruling on motion to suppress, appellate court applies deferential substantial evidence standard of review to historical facts found by trial court].)
At the hearing on the suppression motion, the prosecution stipulated that there was no warrant in this case. The evidence presented at the hearing shows the following.
At approximately 2:20 p.m. on July 21, 2009, Santa Cruz Police Officer Bill Azua was on routine patrol driving southbound on Front Street when he looked into the rear parking lot of the "yoga place" at 1106 Pacific Avenue. Officer Azua saw a "black male" later identified as Billy Davis, talking to the occupants of a green truck; the man was standing on the passenger side of the truck. Officer Azua described the place where the green truck was parked as "a great location to sell and purchase narcotics." Officer Azua had instructions to patrol this particular area because the business owners were requesting extra patrols due to the narcotics activity that was occurring in the area.
As Officer Azua passed by the parking lot, he saw that Davis interrupted his conversation and "tracked" him as he was driving by. As the officer continued to look at him, Davis continued to "track" him. It appeared to the officer that Davis was watching him as he drove slowly past the area; Davis never averted his eyes.
Previously, Officer Azua, a 14-year veteran of narcotics investigations, knew that during the time he was working with the Santa Cruz Narcotics Enforcement Team, under-cover officers had been sent to this particular parking lot as well as to the corner of Pacific Avenue and "Soquel" to purchase narcotics. The parking lot was adjacent to Pacific Avenue. Accordingly, he decided to investigate whether Davis and the occupants of the green truck were engaged in a drug-related activity in violation of Health and Safety Code, section 11532—loitering with intent to purchase or sell narcotics.
Health and Safety Code section 11532 provides "(a) It is unlawful for any person to loiter in any public place in a manner and under circumstances manifesting the purpose and with the intent to commit an offense specified in Chapter 6 (commencing with Section 11350) and Chapter 6.5 (commencing with Section 11400). [¶] (b) Among circumstances that may be considered in determining whether a person has the requisite intent to engage in drug-related activity are that the person: [¶] (1) Acts as a 'look-out.' [¶] (2) Transfers small objects or packages for currency in a furtive fashion. [¶] (3) Tries to conceal himself or herself or any object that reasonably could be involved in an unlawful drug-related activity. [¶] (4) Uses signals or language indicative of summoning purchasers of illegal drugs. [¶] (5) Repeatedly beckons to, stops, attempts to stop, or engages in conversations with passersby, whether on foot or in a motor vehicle, indicative of summoning purchasers of illegal drugs. [¶] (6) Repeatedly passes to or receives from passersby, whether on foot or in a motor vehicle, money or small objects. [¶] (7) Is under the influence of a controlled substance or possesses narcotic or drug paraphernalia. For the purposes of this paragraph, 'narcotic or drug paraphernalia' means any device, contrivance, instrument, or apparatus designed or marketed for the use of smoking, injecting, ingesting, or consuming marijuana, hashish, PCP, or any controlled substance, including, but not limited to, roach clips, cigarette papers, and rollers designed or marketed for use in smoking a controlled substance. [¶] (8) Has been convicted in any court within this state, within five years prior to the arrest under this chapter, of any violation involving the use, possession, or sale of any of the substances referred to in Chapter 6 (commencing with Section 11350) or Chapter 6.5 (commencing with Section 11400), or has been convicted of any violation of those provisions or substantially similar laws of any political subdivision of this state or of any other state. [¶] (9) Is currently subject to any order prohibiting his or her presence in any high drug activity geographic area. [¶] (10) Has engaged, within six months prior to the date of arrest under this section, in any behavior described in this subdivision, with the exception of paragraph (8), or in any other behavior indicative of illegal drug-related activity. [¶] (c) The list of circumstances set forth in subdivision (b) is not exclusive. The circumstances set forth in subdivision (b) should be considered particularly salient if they occur in an area that is known for unlawful drug use and trafficking, or if they occur on or in premises that have been reported to law enforcement as a place suspected of unlawful drug activity. Any other relevant circumstances may be considered in determining whether a person has the requisite intent. Moreover, no one circumstance or combination of circumstances is in itself determinative of intent. Intent must be determined based on an evaluation of the particular circumstances of each case."
Officer Azua drove around and entered the parking lot where Davis and the occupants of the green truck were not able to see him. As Officer Azua drove in, however, Davis turned and noticed him. The officer was about 10 yards away from the truck and he had a clear view of Davis. At this point in time, Davis was leaning into the passenger side of the truck with his hands extended inside. As Davis noticed the officer he quickly pulled his hands from the truck, moved away, turned and walked away from the officer. Officer Azua could see two people in the front seat of the truck.
Officer Azua stopped his patrol car and stepped out of it. He asked Davis to come back. At first Davis hesitated, but then he came back. The officer could not see any money or narcotics in Davis's hands, but Davis placed his right hand in his pocket. Officer Azua told Davis to take his hand from his pocket; he did, but then Davis put his hand back into his pocket. At the time that Officer Azua told Davis to come back to him, within seconds, the driver of the green truck started the engine and began backing out of the parking stall.
Officer Azua told the driver of the truck to park and turn off the engine. The driver of the truck was identified in court as Almalik. As the officer started talking to Almalik and the other occupant of the truck he noticed that Davis continued to put his hand into his pocket. Officer Azua asked for another officer to assist him as he feared for his safety.
The officer identified the defendant as "Mr. Whitehead." It appears that Almalik is also known as Yasin Whitehead.
Officer Azua asked Almalik for his identification; he remembered him from "previous contacts." At this time, Davis, Almalik and the female occupant of the truck began "yelling" at Officer Azua; they accused him of racial profiling. It appeared to the officer that they were attempting to distract him.
The preliminary hearing transcript reveals that Almalik immediately got out of his truck, turned his back on Officer Azua and started pulling items out of his pockets. Officer Azua told him to get back into the truck, but Almalik explained that he could not get his identification without getting out of the truck. Almalik got back into the truck. Subsequently, after other officers arrived, Officer Azua asked Almalik to get out of the truck and explained to him that he was going to conduct a parole search. Almalik said he would not consent to the search and Officer Azua told him he had to consent because he was on parole and had a probation search clause. Officer Azua tried to grab Almalik's hands and Almalik pulled away. At this time Officer Huynh came to assist him and as they were trying to place Almalik in handcuffs he started "tensing up not allowing" the officers to place the handcuffs on him. At this point, Officer Azua arrested Almalik for a violation of Penal Code section 148, subdivision (a)—resisting or obstructing a police officer. At this time, Officer Azua found $427 and a cell phone in a blue fanny pack that was around Almalik's waist. At the police station, Almalik was given jail clothing and Officer Azua searched his clothing. In the pocket of Almalik's white boxer shorts, Officer Azua found a plastic sandwich bag containing four individually wrapped bindles of crack cocaine. The preliminary hearing transcript was not before the trial court and we may not consider it in reviewing the trial court's ruling. (Wilder v. Superior Court (1979) 92 Cal.App.3d 90, 94.)
Officer Azua asked Almalik and Davis if they were on parole or probation. As Almalik was becoming agitated, Officer Azua asked him to place his hands on the steering wheel of the truck. Almalik admitted that he was on parole. No further evidence was adduced at the suppression hearing.
The trial court denied the motion to suppress finding that "this all began because this particular officer among others was informed that they had to patrol this particular area because there were complaints of narcotic activity going on from business owners. So they were focused on this particular area. [¶] Timing is everything. This is an officer who by his experience probably one of the more experienced officers in the area of being able to identify suspicious activity as far as drug activity. Whether it's use, sales, transactions you name it. Five Years in the County Narcotics Enforcement Team. One-and-a-half years working with the D.E.A. Six months working with the FBI. Three years in the Neighborhood Enforcement Team. Over 100 search warrants, selling fake narcotics. Experienced police officers have an ability to perceive the unusual and suspicious which is what the People cited on page five of their responsive brief. [¶] And an experienced officer may draw inferences and make discussions [sic] that might well allude [sic] an untrained person. That's citing out of [the] Cortez... case. [¶] Now a distinguishing fact here is 11532(c) list of circumstances set forth in subdivision B is not exclusive. The circumstances should be considered salient if they occur in an area that is known for unlawful drug use, but any other relevant circumstances may be considered in whether determining a person has the requisite intent. [¶] Moreover, no one circumstance or combination of circumstances is in itself determinative of intent. [¶] Intent must be determined based on an evaluation of the particular circumstances of each case. [¶] You have officer Azua driving slowly. Seeing Mr. Davis leaning into this car, not at the window, not rapping the door but leaning into the car and he... and he is an experienced officer patrolling this area where there have been complaints of narcotics activity. As soon as he comes around back out, Mr. Davis immediately pulls his hand out. Immediately on seeing the officer come[] in and the truck immediately pulls away within ten seconds. And Officer Azua based on his experience, his training, his knowledge of the area, his knowledge of transactions, probably saw and recognized so much more than anyone else would. [¶] The cases that have been cited Wilkins... Terrusquia... and Jones... are all distinguish[able] in this case. The defendant was not blocked by Officer Azua. And in this case Mr. Davis was actually leaned [sic] into the car and pulled his hand out and I do see distinguishing features there. [¶] The Court will deny the motion to suppress."
Waiver of Jury Trial Right
After Almalik's motion to suppress evidence was denied, the court set January 5, 2010, for jury trial. On that date, as noted, Almalik entered a plea of no contest to one felony count of possession for sale of cocaine base (Health & Saf. Code, § 11351.5), and one misdemeanor count of resisting or obstructing an officer. (Pen. Code, § 148, subd. (a).)
Before Almalik entered his pleas, the court said that it had told the parties earlier that "upon entry of a plea to the charges in this case, the Court would sentence the defendant to the term of four years... which would be based on a mitigated term as to Count 1 in F18130, the 11351.5 a Health & Safety Code charge enhanced by one year for the prior prison commitment under Penal Code Section 667.5. [¶]... The Court would be dismissing the other [allegation enhancements under the Health and Safety Code] in the interest of justice...."
Thereafter, the court asked the prosecutor, "[W]hat is the People's position with respect to Count 2 [the misdemeanor]?" The prosecutor replied, "[M]y understating is that this is a plea to the Court." The court then said that it "will simply impose concurrent time on that charge obviously because it's a county jail sentence."
Almalik told the court that he "wanted to see if I can't wait until tomorrow" to decide whether to enter a plea. The court said that it would not be available the next day and asked Almalik, "Are you prepared to enter into the disposition in this case, sir?" Almalik replied, "I have to, I guess." The court said, "You don't have to. We can go ahead and proceed to trial tomorrow and see what happens at that time. When a jury decides your case and - - do you want a few more minutes to talk to [counsel]?" Almalik replied, "No. I'm going to go ahead and do it. I was shooting for, like, three years, though."
Thereafter, the court explained how it had calculated the four year sentence, telling Almalik, "For the Court to grant a mitigated sentence and to strike the punishment on all of the allegations, I did consider the fact that you had an arrest in 2006; however, you did successfully complete [P]roposition 36. But you also did have the arrest from 2008 and you were presently on probation for the Prop 36 case in F16893 at the time that you committed this.... [¶]... [T]he most significant factor in coming to the four years as opposed to five or six at this point is that there was an indication that you would like to resolve this case and there was a small amount involved. [¶] At the end of a trial if you are convicted of this charge, obviously anybody talked to you, the Court cannot make that guarantee; that is the Court's indication."
Almalik asked, "What if I take it to trial, though?" The court replied, "Well, once you take it to trial, then there are no guarantees. It becomes much more difficult once the Court hears the facts and circumstances even more. I mean, you're not someone who's new to the process. And you know that there are significant risks in running the trial. And the most significant risk that you face in going to trial is that the Court may not then strike the three year enhancement [for the Health and Safety Code allegations]. Which even - - as you know, I do not have the ability to grant you probation in this case. So you could be looking at potentially six years if the Court even imposed the mitigated term on the main charge, but the Court may not be as understanding to strike the punishment. [¶] And, again, part of the reason for the four years is that there was expression that you did wish to get this resolved short of a trial."
Almalik replied immediately, "I'm going to go ahead and take that now." Almalik waived his right to a jury trial and all of his other rights before entering his pleas and admitting prior prison term and prior narcotics/controlled substance allegations.
Discussion
Motion to Suppress Evidence
Almalik contends that the trial court erred in denying his suppression motion because Officer Azua's unlawful detention of him resulted in an unconstitutional search and seizure in violation of his Fourth and Fourteenth Amendment rights.
Specifically, Almalik argues that he was detained when Officer Azua told him to stop driving the truck and turn off the engine. Further, because Officer Azua had no reason to suspect him of criminal activity, his detention violated the Fourth Amendment.
In reviewing the denial of a motion to suppress, this court defers to the trial court's express or implied factual findings when supported by substantial evidence (People v. Ayala, supra, 23 Cal.4th at p. 255). However, independently we determine, based on relevant legal principles, whether the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362; see also People v. Leyba (1981) 29 Cal.3d 591, 596-597.)
Whether relevant evidence obtained by unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art I, § 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562; In re Lance W. (1985) 37 Cal.3d 873, 885-890.)
The Attorney General concedes that Almalik was detained when he complied with Officer Azua's direction to park the truck. Thus, the only question we must answer is whether or not Almalik's detention was reasonable under the Fourth Amendment.
A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts, which considered in light of the totality of the circumstances provide some objective manifestation that the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231, (Souza); see also In re Tony C. (1978) 21 Cal.3d 888, 893.) The reasonable suspicion that justifies a detention is simply a particularized and objective basis for suspecting the person stopped of criminal activity. (Ornelas v. United States (1996) 517 U.S. 690, 696 [116 S.Ct. 1657].) It is, however, a fluid concept that takes its substantive content from the particular context in which the standard is being assessed. (Ibid)
Almalik argues that the fact that Davis had his right hand extended into the passenger side of the truck while leaning and talking into the truck, the fact that after he noticed Officer Azua, Davis immediately pulled his hand out of the truck and walked away from the officer, and the fact that he attempted to drive away after the officer ordered Davis to stop walking away and to return to the area was insufficient considered together or separately to give rise to a reasonable suspicion that he was committing a violation of Health and Safety Code section 11532, let alone any other type of criminal activity.
Respectfully, we disagree with Almalik. "The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his [or her] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal...." (In re Tony C., supra, 21 Cal.3d at p. 894.) Though a mere hunch cannot establish reasonable suspicion, the standard is considerably less demanding than a preponderance of the evidence. (See People v. Osborne (2009) 175 Cal.App.4th 1052, 1058, citing United States v. Arvizu (2002) 534 U.S. 266, 273-274.)
In support of his contention that Officer Azua did not have reasonable suspicion that he was engaged in criminal activity, Almalik relies on People v. Jones (1991) 228 Cal.App.3d. 519 (Jones). In Jones, the officer saw three men standing in a group at night in an area known for very high narcotics activity. He saw one man hand the defendant what appeared to be money; but he did not see anything given in exchange. (Id. at pp. 521-522.) The detention of the defendant was held to be improper, because "the mere fact that respondent received money from another person on the street in an area known for drug activity is insufficient justification for a detention." (Id. at p. 524.)
In contrast to Jones, Officer Azua witnessed an extended contact between Davis and a passenger in a truck parked in a parking lot known for drug trafficking. An "area's reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment." (Souza, supra, 9 Cal.4th at p. 240; see also People v. Limon (1993) 17 Cal.App.4th 524, 532 [presence in high crime area is a factor that can lend meaning to the person's behavior].) Davis interrupted his conversation with the occupants of the truck and maintained eye contact with the officer as he drove by the first time. While eye contact alone would not be sufficient to raise reasonable suspicion (Wilsonv. SuperiorCourt (1983) 34 Cal.3d 777, 785 [no reasonable suspicion when the only proffered basis for articulable suspicion was the defendant's eye contact with the officer and continuing to look in his general direction]), the fact that Davis continued to watch the officer until he was out of sight distinguishes the activity in this case. Here, Davis was not just glancing at the officer, but continued to watch to see when he was gone—something that appears to this court not to be the norm for the vast majority of the general public.
Thereafter, when Officer Azua drove into the parking lot he could see that Davis had his hands inside the truck and immediately on seeing the officer withdrew his hands and began to walk away. When the officer told Davis to stop, Almalik started the engine of the truck and he too began to move away. In Souza, supra, 9 Cal.4th at page 228, an officer on patrol in an area known for frequent car thefts observed the defendant speaking with someone in a parked car in almost complete darkness, at 3:00 a.m. When suddenly illuminated by the patrol car's spotlight, the occupants of the car ducked down and the defendant fled, but was quickly apprehended. (Ibid.) A pat-down revealed drugs, leading to the defendant's conviction. (Ibid.) The California Supreme Court rejected the defendant's claim that his flight could not furnish the reasonable suspicion required to detain him. (Id. at pp. 227-228, 242.) The court held that evasive conduct could serve as a key factor in determining whether a particular detention was justified by reasonable suspicion. (Id. at pp. 227, 240-241.) The court explained that the area's reputation, the defendant's presence near a parked car very late at night and in total darkness, when considered along with the evasive conduct of the defendant and those in the parked car, furnished police with reasonable suspicion that criminal activity was afoot. (Id. at pp. 240-242.) The defendant's flight at the sight of a uniformed officer "show[ed] not only unwillingness to partake in questioning but also unwillingness to be observed and possibly identified, [which] is a much stronger indictor of consciousness of guilt." (Id. at pp. 234-235.)
Similarly, the United States Supreme Court has recognized "nervous, evasive behavior [as] a pertinent factor in determining reasonable suspicion." (Illinois v. Wardlow (2000) 528 U.S. 119, 124 [120 S.Ct. 673].) In Wardlow, police in a high-crime area observed the defendant standing in the shadow of a building holding an opaque bag. (Id. at pp. 121-122.) The defendant looked in the officers' direction, and then fled. (Id. at p. 122.) Officers apprehended the defendant and conducted a protective search that revealed a handgun and live rounds hidden in his bag. (Ibid.) The Supreme Court held that the detention that uncovered the gun was supported by reasonable suspicion. (Id. at p. 125.) The court explained that flight, as "the consummate act of evasion, " is "certainly suggestive" of criminal wrongdoing. (Id. at p. 124.)
Relying on People v. Perrusquia (2007) 150 Cal.App.4th 228, 233 (Perrusquia), Almalik argues that even if the Fourth Amendment permitted Officer Azua to suspect him of criminal activity through his observations of Davis, the circumstances did not justify the detention because reasonable suspicion cannot be based solely on factors unrelated to the defendant.
In Perrusquia, the court recognized that "Reasonable suspicion... cannot be based solely on factors unrelated to the defendant, such as criminal activity in the area. [Citation.]" (Peoplev. Perrusquia, supra, 150 Cal.App.4th at p. 233, citing Wardlow, supra, 528 U.S. at p. 124.) The facts the police officer relied on in Perrusquiawere that the defendant was parked near the exit to a 7-Eleven parking lot with his car running; the police officers approached; thereupon, the defendant attempted to avoid contact with them. (Id. at p. 234.)
We find Perrusquia distinguishable. In that case, the factors upon which the police relied were completely unrelated to the defendant—the nature of the location and a recent string of robberies in the area. (Perrusquia, supra, 150 Cal.App.4th at p. 233.) The court found that the detention was unlawful because it was based merely on the location of the stop and was unrelated to the defendant's activities. (Id. at p. 234.) Here, Almalik was observed in the truck with Davis, who appeared to be acting as a lookout, standing right by it. Thus, Almalik's detention was based on activity that was not completely unrelated to him. Although Almalik and Davis were in an area where they could reasonably be expected to be found—the parking lot behind some stores—the circumstances did indicate possible involvement in criminal activity.
"In considering the validity of the challenge to the detention, we must consider that in the course of training and in the exercise of their duties, experienced officers develop an ability to perceive the unusual and suspicious which is of value in the performance of their task of protecting the rights and safety of law[-]abiding citizens. Indeed the failure of an officer to investigate conduct suggestive of criminal activity based upon his expertise acquired by training and experience would constitute a breach of his obligation to properly discharge the duties of an officer of the law." (People v. Peterson (1978) 85 Cal.App.3d 163, 168-169.)
It must be remembered that activities that in isolation may seem innocuous, in proper context, can indicate criminal activity to an officer with special training and experience. (People v. Carvajal (1988) 202 Cal.App.3d 487, 496.)
Given the totality of the circumstances of this case, we are convinced that the activity Officer Azua witnessed constituted " 'some objective manifestation' that criminal activity [was] afoot and that the person to be stopped [here Almalik] [was] engaged in that activity." (Souza, supra, 9 Cal.4th at p. 230.) In other words, we believe that it was "objectively reasonable" for Officer Azua to order Almalik to park his truck and turn off the engine, because the facts were "such as would cause any reasonable police officer in a like position, drawing... on his training and experience... to suspect the same criminal activity and the same involvement by the person in question." (In re Tony C., supra, 21 Cal.3d at p. 893.)
Almalik's detention was based on observations that taken together indicated that he might be engaged in criminal activity. Accordingly, the superior court properly denied Almalik's motion to suppress.
Waiver of Jury Trial Right
As noted, Almalik asserts that the court engaged in improper judicial plea bargaining. He argues that because Judge Marigonda made an offer of benefits in exchange for his no contest plea, without the consent of the prosecutor, the offer was inherently coercive and thus his waiver of jury trial was involuntary. Specifically, he asserts that Judge Marigonda promised a more lenient sentence if he entered a plea. Thus, Almalik argues, he did not voluntarily and intelligently waive his constitutional right to a jury trial.
The Attorney General counters that what happened in this case was not improper judicial plea bargaining. Rather, the court indicated what Almalik's sentence would be and then provided a more detailed explanation of the indicated sentence; thus Almalik's plea was not involuntary.
We begin our review with a brief summary of some applicable legal principles. The voluntariness of a jury trial waiver is a question of law that we review de novo. (People v. Vargas (1993) 13 Cal.App.4th 1653, 1660.)
A criminal defendant may waive fundamental rights, including the right to a jury trial. (People v. Collins (2001) 26 Cal.4th 297, 305, (Collins).) "A defendant's waiver of the right to jury trial, as with other fundamental rights, may be accepted by the court only if knowing and intelligent -- made with a full awareness of the nature of the right being waived and the consequences of the waiver. In addition, the waiver must be voluntary." (People v. Smith (2003) 110 Cal.App.4th 492, 500.) Coercion, either in the form of penalizing a defendant for exercising a constitutional right or promising leniency to a defendant for refraining from exercising a right, renders a waiver involuntary. (Collins, supra, 26 Cal.4th at pp. 306-309.)
Often, criminal defendants waive the right to a jury trial in connection with plea bargains. In People v. Orin (1975) 13 Cal.3d 937 (Orin), our Supreme Court explained: "The process of plea bargaining which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions contemplates an agreement negotiated by the People and the defendant and approved by the court. [Citations.] Pursuant to this procedure the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he [or she] were convicted of all offenses charged. [Citation.] This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment [citation], by the People's acceptance of a plea to a lesser offense than that charged, either in degree [citation] or kind [citation], or by the prosecutor's dismissal of one or more counts of a multi-count indictment or information. Judicial approval is an essential condition precedent to the effectiveness of the 'bargain' worked out by the defense and prosecution. [Citations.] But implicit in all of this is a process of 'bargaining' between the adverse parties to the case -- the People represented by the prosecutor on one side, the defendant represented by his [or her] counsel on the other -- which bargaining results in an agreement between them. [Citation.]" (Id. at pp. 942-943.)
While plea bargaining is an acceptable method of resolving criminal cases, only the prosecutor is authorized to negotiate a plea agreement on behalf of the state. "[T]he court has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of 'plea bargaining' to 'agree' to a disposition of the case over prosecutorial objection. Such judicial activity would contravene express statutory provisions requiring the prosecutor's consent to the proposed disposition [fn. omitted], would detract from the judge's ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be intimidated by the judge's participation in the matter." (Orin, supra, 13 Cal.3d at p. 943.)
On the other hand, a trial court may give an "indicated sentence." (People v. Allan (1996) 49 Cal.App.4th 1507, 1516.) "In an indicated sentence, a defendant admits all charges, including any special allegations and the trial court informs the defendant what sentence will be imposed. No 'bargaining' is involved because no charges are reduced. [Citations.] In contrast to plea bargains, no prosecutorial consent is required. [Citation.]" (Ibid.)
In Collins, supra, 26 Cal.4th 297, the trial court gave the necessary advisements before taking the waiver of a jury trial, but also made statements to the defendant prior to taking the advisements that " 'there might well be a benefit in [waiving a jury trial]. Just by having waived jury, that has some effect on the court.' " (Id. at p. 302, italics omitted.) The court indicated it was not specifying any particular benefit but confirmed that there would be " 'some benefit.' " (Ibid.) The California Supreme Court concluded that the trial court's promise of " 'some benefit' " was an improper inducement that rendered the waiver involuntary. (Id. at pp. 304, 312.)
The Collins court explained that "the objective of the trial court's comments was to obtain defendant's waiver of a fundamental constitutional right that, by itself (when defendant elects to go to trial), is not subject to negotiation by the court. In effect, the trial court offered to reward defendant for refraining from the exercise of a constitutional right. [Citations.] The circumstance that the trial court did not specify the nature of the benefit by making a promise of a particular mitigation in sentence, or other reward, does not negate the coercive effect of the court's assurances. The inducement offered by the trial court to defendant, to persuade him to waive his fundamental right to a jury trial, violated defendant's right to due process of law." (Collins, supra, 26 Cal.4th at p. 309, fn. omitted.) Where an improper inducement leads to a waiver of a jury trial, there is structural error requiring reversal. (Id. at p. 312.)
Nevertheless, in the case of a true plea bargain, one in which the prosecutor and the defendant negotiate a plea of guilty or no contest, the defendant relinquishes the constitutional rights attending a trial, including the right to a trial by jury. "As the high court has explained in examining the prerogative of the state, through the prosecutor, to offer such a plea: '[N]ot every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right is invalid. Specifically, there is no per se rule against encouraging guilty pleas. We have squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea, ' which may obtain for the defendant ' "the possibility or certainty... [not only of] a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty..." [citation], but also of a lesser penalty than that required to be imposed after a guilty verdict by a jury.' [Citations.] (Collins, supra, at p. 309, fn. 4.)
As noted, the Attorney General argues that the court in this case gave an indicated sentence and an explanation of how the court would arrive at the sentence. It does appear that initially the trial court started out by giving what appeared to be an indicated sentence. Although the prosecutor did not object when the trial court announced a total four-year state prison term for resolution of two cases, it does not appear that the prosecutor's comment that the plea was "to the court" was explicit consent to a plea bargain of which the prosecutor had been a part. Nevertheless, even a perfunctory reading of the transcript reveals that the trial court was attempting to settle the case short of trial. There is no suggestion that the court intended to impose the same sentence if the matter went to trial.
Although this does appear to be an indicated sentence, in order to reach the four year maximum the court had to strike the punishment on all the prior narcotics conviction allegations.
Taking the exchange between the court and Almalik as a whole, it appears to this court that the trial court promised not to sentence Almalik on certain enhancements in exchange for his agreeing to plead guilty or no contest, but if Almalik chose to go to the jury, the four-year sentence was no longer available. As the court put it, "the most significant factor in coming to the four years as opposed to five or six at this point is that there was an indication that you would like to resolve this case.... [¶] At the end of a trial if you are convicted of the charge, obviously anybody talked to you, the Court cannot make that guarantee; that is the Court's indication. Are you prepared to accept that indication from the Court?" When Almalik asked what would happen if he took the case to trial, the court told him that "[i]t becomes much more difficult once the Court hears the facts and circumstances even more. I mean, you're not someone who's new to the process. And you know that there are significant risks in running the trial. And the most significant risk that you face in going to trial is that the Court may not then strike the three year enhancement [for the Health and Safety Code allegations]. Which even -- as you know, I do not have the ability to grant you probation in this case. So you could be looking at potentially six years if the Court even imposed the mitigated term on the main charge, but the Court may not be as understanding to strike the punishment. [¶] And, again, part of the reason for the four years is that there was expression that you did wish to get this resolved short of a trial." Immediately thereafter, Almalik said he would "go ahead and take that now."
We reject the Attorney General's assertion that there was a significant lapse of time between the court's comments and the formal entry of plea, such that Almalik was not induced to plead no contest by the court's comments.
"In formulating the constitutional procedural doctrines that permit waiver, and in many instances forfeiture, of constitutional rights, the [United States Supreme] court long has recognized that the state may not punish a defendant for the exercise of a constitutional right, or promise leniency to a defendant for refraining from the exercise of that right. [Citations.] Coercion in either form has been rejected, whether its source is executive, legislative, or judicial in nature. [Citations.]" (Collins, supra, at pp. 305-306.)
We are persuaded that the entire colloquy in this case left Almalik with the impression that if he exercised his jury trial right the court would not then strike the punishment on the three-year enhancement for the prior narcotics conviction. Implicitly, the court was saying that Almalik would receive a benefit from pleading guilty before trial. Explicitly, the court said that after a trial, Almalik could be facing six years, because the court might not be as "understanding" after a trial with regard to striking the enhanced punishment for the prior narcotics convictions. The form of the trial court's negotiation with Almalik in this case presented a "substantial danger of unintentional coercion." (Orin, supra, 13 Cal.3d at p. 943.)
While we recognize that the trial court's motive was not to deprive Almalik of his constitutional right to a jury trial, by implicitly offering to benefit him with a more lenient sentence if he pleaded to the charges then and there and forego his right to a jury trial, the trial court in effect "offered to reward defendant for refraining from the exercise of a constitutional right." (Collins, supra, 26 Cal.4th at p. 309.) However well intentioned the court's "explanation" may have been, it violated the court's obligation to remain neutral and effectively coerced Almalik into entering the plea. This is a structural defect in the proceedings warranting reversal without a determination of prejudice. (Id. at pp. 312-313.)
Disposition
The judgment is reversed. The matter is remanded to the trial court with instructions to allow Almalik to withdraw his no contest pleas, if he so chooses.
WE CONCUR: RUSHING, P. J.PREMO, J.