Opinion
F074222
01-22-2018
THE PEOPLE, Plaintiff and Respondent, v. MARC CHARLES AUSEMA, Defendant and Appellant.
Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1465960)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Joseph R. Distaso, Judge. Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Smith, J.
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Pursuant to a negotiated plea, appellant Marc Charles Ausema pled no contest to count 2 possession of heroin for sale (Health & Saf. Code, § 11351). In exchange, the count 1 charge of transportation of heroin (Health & Saf. Code, § 11352, subd. (a)) and an allegation that he had been previously convicted of sale or transportation of a controlled substance (Health & Saf. Code, § 11370.2) were dismissed. Ausema was sentenced to three years' formal felony probation, with the condition that he serve 120 days in county jail. He contends the trial court erred in denying his suppression motion at the preliminary hearing, or alternatively that defense counsel rendered ineffective assistance by failing to renew the motion in the superior court. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 7, 2014, prior to the preliminary hearing, Ausema filed a motion to suppress the evidence found during a search of his vehicle claiming it was seized in violation of his Fourth and Fourteenth Amendment rights. (Pen. Code, § 1538.5.) The motion was litigated in conjunction with the preliminary hearing, which began in February 2015, continued in June 2015, and unfolded as follows:
On November 12, 2011, patrol officer James Brewer was on duty, along with Gregory Gilstrap, an "Explorer ride-along," when he was notified by dispatch that someone was suspected of selling controlled substances at the Circle J gas station on Golden State Boulevard in Turlock. Officer Brewer responded to the area of the gas station and, when he arrived, located a blue Mitsubishi that matched the description of the suspected vehicle. The vehicle was traveling northbound near the gas station. Gilstrap testified the dispatch call included a license number, which matched the license number of the Mitsubishi.
Officer Brewer pulled behind the vehicle and, noticing that it did not have a functioning center brake light, initiated a traffic stop. Officer Brewer explained the stop was "[b]ased on reasonable suspicion from the call [he] received from dispatch and also because of the nonfunctioning supplemental brake light."
When the vehicle stopped, Officer Brewer approached Ausema, who was in the driver's seat. There were no other occupants in the vehicle. Officer Brewer asked Ausema for his license, registration, and insurance, and noticed Ausema "appeared very nervous and he was sweating," even though it was not warm outside.
Officer Brewer took Ausema's information back to his patrol vehicle to check if Ausema's license was valid, which took a couple of minutes. Officer Brewer determined it was, returned to the vehicle, and explained to Ausema that he stopped him because he had received a call that a vehicle like his was identified as possibly being involved in drug sales. When Officer Brewer asked Ausema to step out of the vehicle so he could conduct a field interview, Ausema began reaching toward the covered center console or glove box of the vehicle. Fearing that Ausema might be reaching for a weapon or trying to conceal something, Officer Brewer ordered Ausema to stop and exit the vehicle. Ausema failed to comply and Officer Brewer, still in fear for his safety, opened the car door, placed Ausema's left arm in a control hold and ordered him to place his right hand on his head. Ausema did not comply until Officer Brewer put additional pressure on his left arm. Ausema was taken out of the vehicle, placed in handcuffs, patted down, and placed into the patrol car.
Officer Brewer returned to Ausema's vehicle and observed and smelled two small bindles on the driver's seat he believed to be packages of black tar heroin. Officer Brewer then placed Ausema under arrest. A search of the vehicle incident to arrest revealed a box containing 89 additional bindles, a small battery-operated digital scale, and $1,574 in cash.
The bindles were later determined to be heroin. Officer Brewer opined the heroin was possessed for sale.
Following testimony, defense counsel argued that, after Officer Brewer concluded his investigation regarding the brake light, he went back to Ausema's vehicle without his citation book to talk to him, thereby initiating a new detention. Counsel argued the detention was based on unreliable and unsupported evidence and was prolonged and unlawful. According to defense counsel, "Harvey-Madden" did not allow the trial court to consider the factor that dispatch provided information about the vehicle or license plate number. Defense counsel also argued that, contrary to the People's assertion that the items were in plain view, they would not have been had law enforcement not opened the vehicle door during the illegal search.
People v. Harvey (1958) 156 Cal.App.2d 516 and People v. Madden (1970) 2 Cal.3d 1017 (Harvey-Madden). The Harvey-Madden rule "[i]n its most conventional application" is "nothing more than the hearsay rule adapted specifically to motions to suppress." (People v. Romeo (2015) 240 Cal.App.4th 931, 944.) The cases establish the evidentiary rules the prosecution must satisfy to prove the underlying grounds for arrest or detention "when the authority to arrest [or detain] has been transmitted to the arresting officer through" police or official channels. (People v. Collins (1997) 59 Cal.App.4th 988, 993.) --------
The People argued the trial court did not need to decide any "Harvey-Madden" issues, as the brake light was sufficient cause to effect the stop, and that once Ausema was lawfully stopped, the officer had a right to order him out of the vehicle for officer safety.
The trial court stated that, although somewhat ambiguous, the traffic stop was complete before Officer Brewer went back to the vehicle to speak to Ausema after determining his license was valid. In doing so, Officer Brewer then had the right to do a "consent encounter." The trial court noted, however, that Ausema's actions after refusing to get out of the vehicle made the subsequent detention proper. Specifically, the trial court noted that when Ausema turned toward the center console, it gave the officer reasonable suspicion to do a pat-down search for officer safety. However, the trial court concluded, had Ausema refused to talk to the officer without the movements toward the center console, the search would have been improper.
In denying the suppression motion, the trial court stated there were no Harvey-Madden issues as the traffic violation was a valid reason for the stop and that it was also proper for the officer to ask other questions after completing the traffic stop.
Following the denial of the motion to suppress, the information was filed June 19, 2015, in superior court, and Ausema was arraigned on the charges and entered a plea of not guilty.
On December 11, 2015, Ausema changed his plea to no contest on count 2; count 1 and the prior allegations were dismissed in the interest of justice. At the change of plea hearing, the trial court noted that "[t]he record should reflect Mr. Ausema is not waiving his right to appeal the denial of his ... 1538.5 motion, and that's part of the agreement, the People are okay with that, so that's on the record." Sentencing was scheduled for July 11, 2016.
On December 16, 2015, Ausema filed a notice of appeal, which was amended December 22, 2015, and later dismissed by this Court April 5, 2016, as abandoned.
On July 22, 2016, the trial court placed Ausema on formal probation for a term of three years. Under the terms of his probation he was to serve a term of 120 days in jail.
Ausema filed a notice of appeal August 17, 2016.
DISCUSSION
Suppression Challenge is Forfeited
First, Ausema contends his motion to suppress was improperly denied. We find the argument forfeited.
When a defendant files a suppression motion in response to a complaint, and an information is later filed, a defendant must renew the suppression motion in superior court in order to preserve for appeal the issue of the legality of a search. (People v. Lilienthal (1978) 22 Cal.3d 891, 896-897.) The unification of municipal and superior courts did not alter this rule. (People v. Garrido (2005) 127 Cal.App.4th 359, 364.) Moreover, the fact that the same judge presided over the preliminary hearing does not excuse Ausema's failure to renew the motion. (People v. Richardson (2007) 156 Cal.App.4th 574, 594.) Consequently, Ausema's failure to renew the suppression motion after the information was filed constitutes a forfeiture of any challenge to the search.
In any event, even if Ausema was not required to renew the motion, we find his challenge to the suppression motion without merit, as discussed further, below. Claim of Ineffective Assistance of Counsel
Next, Ausema argues that, if we conclude he forfeited his Fourth Amendment claim, his trial counsel was ineffective for failing to preserve the issue. We disagree.
To succeed on a claim of ineffective assistance of counsel, a defendant must show that "(1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Duncan (1991) 53 Cal.3d 955, 966.) When, as in this case, a claim of ineffective assistance involves the failure to renew a motion to suppress, these showings are made if the defendant can establish the challenge was valid and "there would not have been sufficient evidence, otherwise, to convict." (People v. Hart (1999) 74 Cal.App.4th 479, 485-486.)
Here, however, we do not conclude Ausema's Fourth Amendment claim was valid. We first note that the original stop after Officer Brewer observed the nonfunctioning center brake light was proper. While Ausema claims the initial stop was improper, we disagree. Vehicle Code, sections 24603, subdivisions (h)(1) and (i) and 24252, subdivision (a), provide, in relevant part, that any vehicle with a supplemental brake light installed after January 1, 1987, must be maintained in good working order. Even absent evidence that Ausema's vehicle was a model year that required such a light, the testimony established that Officer Brewer reasonably believed Ausema was in violation of the Vehicle Code. "'If the facts are sufficient to lead an officer to reasonably believe that there was a violation, that will suffice, even if the officer is not certain about exactly what it takes to constitute a violation.'" (In re Justin K. (2002) 98 Cal.App.4th 695, 700.) "When assessing the reasonableness of a traffic stop, the question is not whether appellant actually violated the Vehicle Code, but whether there was some '"objective manifestation" that [he] may have' violated the Vehicle Code." (People v. Durant (2012) 205 Cal.App.4th 57, 63, italics omitted.)
We also determine that there was clear reason to detain Ausema after he reached for the center console, putting Officer Brewer in fear for his safety. (People v. Rosales (1989) 211 Cal.App.3d 325, 330-331, citing People v. Lee (1987) 194 Cal.App.3d 975, 982-983; see also People v. Mendoza (2011) 52 Cal.4th 1056, 1081 [a detention based on officer safety concerns is lawful "when an individual's actions give the appearance of potential danger to the officer"].)
Thus, because the traffic stop and the detention and subsequent search following Ausema's actions were valid, Ausema's challenge must be limited to the brief period of time between the two: when Officer Brewer approached Ausema's vehicle to question him about the suspected drug sales and asked that he step out of the vehicle for a field interview. We find this period of time constituted a consensual encounter.
Consensual encounters do not trigger Fourth Amendment scrutiny and, unlike detentions, require no articulable suspicion that the person has committed or is about to commit a crime. (In re Manuel G. (1997) 16 Cal.4th 805, 821.) "[A] detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty, does a seizure occur." (Ibid.) "Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer's display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer's request might be compelled." (Ibid.)
In this case, after determining Ausema's license was valid and without giving him a warning or a citation, Officer Brewer walked back up to Ausema's vehicle and explained to him that he stopped him because he had received a call that a vehicle like his was identified as possibly being involved in drug sales. When Officer Brewer asked Ausema to step out of the vehicle so he could conduct a field interview, Ausema began reaching toward the covered center console or glove box of the vehicle, leading to a valid detention. While Ausema may have felt he was under official scrutiny when Officer Brewer questioned him, "such directed scrutiny does not amount to a detention." (People v. Franklin (1987) 192 Cal.App.3d 935, 940.) Given the totality of the circumstances, we conclude that this brief interaction between Officer Brewer and Ausema was consensual. As such, Ausema's Fourth Amendment claim is invalid and, as a result, his claim of ineffective assistance of counsel must fail.
DISPOSITION
The judgment is affirmed.