Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County Nos. MCR030755B, MCR030928, MCR026382. Eric C. Wyatt, Judge.
Cannon & Harris, Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Doris Calandra, Louis M. Vasquez, Lloyd G. Carter, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Pursuant to a plea agreement, defendant Benjamin Santos Beniga was convicted of stalking and possession of cocaine base for sale. He now argues that the conviction on the cocaine offense should be reversed because his motion to suppress the drug evidence should have been granted. He also argues that we should remand for resentencing because the trial judge mistakenly believed the plea agreement included a fixed sentence rather than a lid, and because his counsel confirmed the judge’s misimpression. As we will explain, the motion to suppress was properly denied and there is no reasonable probability that Beniga would have received a lesser sentence absent the judge’s mistake.
FACTUAL AND PROCEDURAL HISTORIES
Beniga was arrested after a police officer found a plastic bag containing 7.9 grams of rock cocaine in the waistband of his underpants. He admitted that the drugs were his and asked to be taken to jail. On January 29, 2008, in case No. MCR030755B, Beniga was charged by complaint with possession of cocaine base for sale. (Health & Saf. Code, § 11351.5.)
Beniga filed a Penal Code section 1538.5 motion to suppress the cocaine evidence, arguing that the detention and search that led to the discovery of the cocaine were in violation of the state and federal Constitutions. The court held an evidentiary hearing on the motion on March 7, 2008, as part of the preliminary examination.
At the hearing, Madera Police Officers Michael Kutz and Shant Sheklanian testified that on January 28, 2008, they were patrolling in an unmarked car, looking for graffiti vandals, when they saw a white Mustang “spinning donuts” no more than 100 yards away. They turned around and drove to the location of the Mustang. It took about 20 seconds to get there, by which time the Mustang had been parked. Kutz switched on the unmarked car’s flashing red and blue lights and the two officers got out, wearing plain clothes but with badges around their necks, and announced that they were police officers. A smell of burning rubber was coming from the Mustang. A second car was parked nearby and two men were standing beside it, talking to two women inside. The men were Beniga and Jawan Breazell. Kutz recognized Beniga and Breazell, having gone to high school with them and having had prior contacts with them. Sheklanian also recognized Beniga and Breazell, having had prior contacts with both.
Kutz and Sheklanian had both heard on other occasions that Beniga was on probation. Kutz heard from Beniga’s probation officer, and from Beniga himself, that Beniga was on felony probation. He did not remember when he heard this and he was not told whether Beniga’s probation included a search condition, though he knew that felony probation usually includes a search condition. During a traffic stop in the summer or fall of 2007, Sheklanian was told by dispatchers that Beniga was on felony probation and subject to a search condition. Sheklanian was not “positive” Beniga was still on probation at the time of the search in the present case. “I guess I kind of assumed he was,” he testified. He did not call the dispatcher to find out. A probation officer testified that Beniga was, in fact, on misdemeanor probation at the time of the incident. His probation included a search condition.
In 2006, when Kutz responded to a domestic violence call in which Beniga was a suspect, Beniga’s partner told Kutz that Beniga sold illegal drugs. Sheklanian knew of Beniga’s 1999 arrest for selling drugs.
Sheklanian knew the Mustang belonged to Breazell. He had seen Breazell driving it in the past and had seen it parked in front of Breazell’s house. As soon as the officers made contact with Breazell, he admitted the Mustang was his.
As he got out of the car, Sheklanian told Beniga to show his hands and walk toward him. Beniga began walking toward Sheklanian, but “was appearing to be fidgeting around near his waistband.” Sheklanian ordered him to stop moving and sit on the curb. He sat, but continued to do something to his waistband with his hands. He “kind of bent over and appeared to try to conceal something or remove something.” Sheklanian ordered him not to move and to keep his hands in sight. Beniga held his hands out, but then “settled back down to his waistband.” Sheklanian then ordered Beniga to stand and put his hands behind his back. He handcuffed him “to ensure my safety and Officer Kutz’s safety and to ensure he didn’t have any weapons or he wasn’t trying to conceal some type of illegal item.” Meanwhile, Kutz “was being yelled at aggressively” by Breazell and the two women. Sheklanian radioed for backup. As he did this, he saw that Beniga “appeared to be flicking something” with his handcuffed hand behind his back, near his waist. Sheklanian again ordered Beniga not to move and shined his flashlight on the ground around Beniga’s feet to see if Beniga had discarded something. Then he patted Beniga down and “reached into that area he was flicking”—that is, into the waistband of Beniga’s underpants—where he found the bag of rock cocaine. Asked why he searched Beniga, Sheklanian testified:
“The purpose of the search was, one, to check him for weapons.
“Two, based on his movement, the fact that he was trying to obviously and wantonly either want to hide something or, two, to get rid of something.
“And, three, the fact that he was on probation.
“And those are the reasons for the search.”
After hearing arguments, the court denied the motion. It rejected the prosecutor’s argument that reaching into Beniga’s underpants for the plastic bag was within the scope of a valid pat down for weapons, but accepted the view that the search was a valid probation search even though the searching officer’s information about Beniga’s probation was several months old:
“I’ll start at the beginning in terms first of the suppression motion. The question for purposes of detention is whether or not there is reasonable suspicion that a crime had occurred. Clearly, there was reasonable suspicion that the crime [i.e., one or more Vehicle Code violations arising from the spinning of donuts] had occurred.
“And then it involves whether it was reasonable to detain these people who were around that car for [those] purposes. Again, it’s reasonable suspicion. I think that there was reasonable suspicion sufficient to detain both Mr. [Breazell], Mr. Beniga, as well as potentially [the two women].…
“Not knowing exactly who had been driving the car, even if they did know at that time that it was Mr. [Breazell]’s car, I just don’t think people drive cars at a certain time. And the standard of proof for purposes of a detention is reasonable suspicion.
“Obviously, once that’s dispelled, they would be required to release each of those people. But I don’t think it’s unreasonable at all at that point to have a command that all four of them would have to remain.…
“We then go on to the second portion really of the analysis, which was the officer had seen the movements, which would clearly justify further investigation, potentially a pat down for weapons under the circumstances, which he had indicated he may be doing. And that’s been the quote from Minnesota vs. Dickerson [(1993) 508 U.S. 366], that if a police officer lawfully pats down a suspect’s outer clothing and feels an object, whose contour or mass makes its [identity] immediately apparent, there has been no invasion of the suspect’s privacy beyond that authorized by the officer’s [search] for weapons.
“If the object is contraband, [its] warrantless seizure would be justified by the same practical consideration that adheres to an in plain view contact.… [I]f there had been testimony that he had felt that specifically during the pat down and it was of such a nature and consistency that he could immediately tell or provide specific facts that he believed that was some sort of contraband, then … since he was justified for the weapon pat down, he would have been able to seize it. In this case there was no [such testimony], so I don’t believe that that would have done it.
“Nonetheless, the reality is that Mr. Beniga is on probation. He is subject to search and seizure.… One of the conditions was he’s to submit his person and property to search and seizure by a peace officer.
“That was known by Officer Sheklanian. Though, I understand, obviously, at some point it has to terminate. Clearly, it hadn’t. He testified that he believed that that was the case. He had checked on that previously.
“Based upon that, there is no violation because the case says as long as there’s a reasonable suspicion and belief that he’s on probation at the time of the search and subject to search and seizure by the officer, the search is valid. As opposed to the situation where the officer has no idea and then it’s only discovered later on in a means of saving the search that he was on probation subject to search and seizure.
“And, therefore, the motion to suppress is denied because he was and the officer believed that he was at the time that he made the search.”
On April 28, 2008, after the suppression hearing and while the cocaine case was still pending, Beniga was charged in case No. MCR030928 with making a criminal threat and violating a protective order. The same day, Beniga filed a Penal Code section 995 motion to dismiss the information in case No. MCR030755B, in which he renewed his arguments in support of suppressing the cocaine evidence. The motion was denied.
On June 6, 2008, Beniga pleaded no contest in case No. MCR030755B to possessing cocaine base for sale. At the time the court accepted the plea, the People added a charge of stalking (Pen. Code, § 646.9) to case No. MCR030928. Beniga pleaded no contest to that charge. In exchange for the pleas, the People agreed to a sentence of no more than three years eight months, to run concurrent to the sentence in a third case (the one in which Beniga violated his probation by possessing the cocaine).
The court sentenced Beniga on September 5, 2008. At the hearing, his counsel told the court, “[T]here appears to have been an agreed sentence.” The court replied, “That is true.” No one pointed out that the agreement was for a maximum sentence or lid of three years eight months. The court then denied probation, saying, “The Court finds that Mr. Beniga is not a good candidate for probation. In addition to the fact that this was the agreement.” It imposed three years, the lower term, for possession of cocaine base for sale, saying this was “pursuant to the agreement of the parties.” Finally, it imposed a consecutive eight months for stalking, equal to one-third of the middle term. “The basis for that being a consecutive term,” the court stated, “is that the crime happened at a different place and time. There’s no apparent connection between the crimes.”
By order of this court, Beniga’s notice of appeal was effective with respect to case No. MCR026382, as well as case Nos. MCR030928 and MCR030755B. Beniga raises no issues about case No. MCR026382 in his briefs, however.
DISCUSSION
I. Motion to suppress
Beniga claims the trial court erred when it denied his motion to suppress and when it denied his Penal Code section 995 motion. In reviewing these decisions, we disregard the ruling on the section 995 motion and directly review the original ruling, made at the preliminary hearing, on the motion to suppress. We review the record in the light most favorable to the trial court’s ruling and defer to its express and implied factual findings if supported by substantial evidence. We review independently its application of the law to the facts. (People v. Jenkins (2000) 22 Cal.4th 900, 969; People v. Laiwa (1983) 34 Cal.3d 711, 718; People v. McDonald (2006) 137 Cal.App.4th 521, 529.) In California, the manner in which a search or seizure is carried out does not justify exclusion of evidence unless the search or seizure violated the defendant’s rights under the Fourth Amendment. (People v. Camacho (2000) 23 Cal.4th 824, 830.) Contrary to implications in Beniga’s brief, there is no rule that constrains us to reverse unless the legal basis upon which the trial court made its decision was the correct one. Since we are required to exercise our independent judgment in applying the law to the facts, we affirm if, in light of the facts the trial court found and the undisputed facts, the search was reasonable under a legal rationale other that the one the trial court employed. (See People v. Zapien (1993) 4 Cal.4th 929, 976 [if decision was correct on any theory of law applicable to case, it must be upheld on appeal even though trial court gave wrong reason].) Contrary to Beniga’s arguments, Officer Sheklanian’s conduct was proper under the Fourth Amendment at each stage, as we will now explain.
It is settled that police officers can properly detain, for investigatory purposes, a person they reasonably suspect has just committed an offense. This principle is often invoked in cases involving traffic stops, for instance. (See People v. Wells (2006) 38 Cal.4th 1078, 1082, and cases cited therein.) “The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.]” (Id. at p. 1083.) Further, the authority to detain is not limited to suspects. We agree with the drafters of the Model Code of Pre-Arraignment Procedure, who write:
“‘[W]here a crime may have been committed and a suspect or important witness is about to disappear, it seems irrational to deprive the officer of the opportunity to “freeze” the situation for a short time, so that he may make inquiry and arrive at a considered judgment about further action to be taken. To deny the police such a power would be to pay a high price in effective policing and in the police’s respect for the good sense of the rules that govern them.’” (4 LaFave, Search & Seizure (4th ed. 2004) § 9.2(a), p. 287, quoting Model Code of Pre-Arraignment Procedure (1975) p. 272.)
When the officers approached the Mustang, they had just seen it spinning donuts and smelled the burned rubber of its tires. At a minimum, they had a reasonable suspicion that at least one of the four people near the Mustang had committed a violation of the Vehicle Code. As Officer Sheklanian explained, spinning donuts potentially violates several Vehicle Code sections. The officers knew right away that the Mustang belonged to Breazell, but they did not, contrary to Beniga’s assertion, know who had been driving it. In addition, each of the four persons present were also likely witnesses. Under these circumstances, it was reasonable for the officers to detain Beniga, both as a possible perpetrator and/or as a possible witness.
Even if the officers’ reasonable suspicion that a crime had taken place only justified the detention of Breazell, the officers reasonably could have detained Beniga for purposes of officer safety. The situation is comparable to that in Maryland v. Wilson (1997) 519 U.S. 408. There, an officer stopped a car for speeding. As the officer spoke to the driver, Wilson, a passenger, looked nervous. Though lacking reasonable suspicion that any passenger committed a crime, the officer ordered Wilson and another passenger out of the car. When Wilson complied, some cocaine fell from his person to the ground. (Id. at pp. 410-411.) The Supreme Court held that ordering Wilson out was justified by officer safety considerations and reversed the suppression of the cocaine, stating:
“[D]anger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.” (Maryland v. Wilson, supra, 519 U.S. at pp. 414-415.)
Here, even if Breazell were considered to be the only suspect, and even if there were no need to detain witnesses, the danger to the officers in approaching Breazell was greater because he had companions. The intrusion on Beniga when Sheklanian told him to approach, show his hands, and sit down, was minimal. It makes no difference that Beniga was not a passenger when the officers approached. If anything, under these circumstances, the intrusion on Beniga was less than it would have been had he been in the car when the officers approached: He was required only to walk, show his hands, and sit down, instead of having to first get out of the car and then do those things. The detention of Beniga was not unreasonable within the meaning of the Fourth Amendment.
Sheklanian’s conduct was also reasonable when he proceeded from the detention to the search of Beniga. By the time he searched Beniga, Sheklanian had probable cause, not just reasonable suspicion. He had probable cause to believe Beniga was concealing something illegal in his waistband. When Sheklanian ordered Beniga to approach and show his hands, Beniga began walking toward Sheklanian but, instead of showing his hands, fidgeted with his waistband. He continued to do this after Sheklanian ordered him to sit, appearing to try to hide or remove something. Though Sheklanian ordered him to stop and keep his hands visible, Beniga’s hands returned to his waistband after he briefly held them out. When this prompted Sheklanian to handcuff Beniga, Beniga still kept trying to do something with his hands near his waistband. Sheklanian knew Beniga had an arrest history for drug possession. He checked the ground to see whether Beniga’s movements meant he had discarded something. Since he found nothing, a reasonable inference was that Beniga still had the item. Probable cause “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” (Illinois v. Gates (1983) 462 U.S. 213, 243-244, fn. 13.) Probable cause to believe that a person is committing a crime justifies both a search of the person and his arrest without a warrant. (United States v. Robinson (1973) 414 U.S. 218, 235.) So long as the fruits of the search are not used to justify the search retroactively—i.e., so long as the officer has probable cause before he begins searching—it is permissible for the search to come before the arrest, as it did here. (Rawlings v. Kentucky (1980) 448 U.S. 98, 110-111 & fn. 6; People v. Simon (1955) 45 Cal.2d 645, 648; 3 LaFave, Search and Seizure (4th ed. 2004) § 5.4(a), pp. 190-193.) Under the circumstances, Beniga’s persistent movements were probable cause to search his waistband area for contraband.
Since there was probable cause, it is not necessary to address Beniga’s contention that, by reaching into his underwear without first feeling anything that felt like a weapon or other contraband, Sheklanian exceeded the permissible scope of a pat-down search based only on reasonable suspicion. We also need not address Beniga’s argument that the search was not a valid probation search because Sheklanian only suspected or assumed, based on old information, that Beniga was on probation and subject to a search condition. Finally, it is unnecessary to consider the People’s argument that, even if Sheklanian violated the Fourth Amendment by searching Beniga, he did so negligently and, therefore, the exclusionary rule should not come into effect. (See Herring v. United States (2009) 129 S.Ct. 695, 702 [holding for first time that Fourth Amendment exclusionary rule is triggered only by “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence”].)
II. Sentence
Beniga argues that, if the court had known the plea agreement was for a lid, not a fixed sentence, it might have imposed a lesser punishment. Specifically, he says the court could have given him probation, or it could have imposed a concurrent rather than a consecutive sentence for the stalking conviction. He asks us to remand for resentencing.
We agree with Beniga that the record shows the trial judge was under a mistaken impression. We also agree with the People that Beniga’s counsel’s confirmation of the judge’s mistake waived his claim of error. (People v. Scott (1994) 9 Cal.4th 331, 353, 354 [waiver doctrine applies to court’s failure to properly make discretionary sentencing choice, provided sentence imposed was lawful].) The remaining question is whether counsel’s failure to inform the court correctly was ineffective assistance of counsel in contravention of the Sixth Amendment.
To establish ineffective assistance of counsel, defendant must show that counsel’s performance “fell below an objective standard of reasonableness,” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; see also People v. Hester (2000) 22 Cal.4th 290, 296.) It is not necessary, however, to determine whether counsel’s challenged action was professionally unreasonable in every case. If the reviewing court can resolve the ineffective-assistance claim by proceeding directly to the issue of prejudice, it may do so. (Strickland v. Washington, supra, at p. 697.)
In this case, although the court thought it was imposing the sentence of three years eight months pursuant to the parties’ agreement, it also made findings justifying the sentence independently. In making these, it ruled out the options of granting probation or imposing concurrent sentences: It stated that Beniga was not a good candidate for probation. This finding was well supported, for Beniga was on probation for another offense when arrested for the current offense. The court also stated that concurrent sentences were not appropriate because the two offenses—the stalking and the cocaine possession—happened at different times and were unrelated to each other. This finding was proper under rule 4.425 of the California Rules of Court, which lists factors for determining whether to impose concurrent or consecutive sentences. Rule 4.425(a)(1) directs the court to consider whether “[t]he crimes and their objectives were predominantly independent of each other.…” Rule 4.425(a)(3) calls for consideration of whether “[t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” In light of the court’s findings, we conclude it is not reasonably probable that the court would have imposed a different sentence if counsel had said three years eight months was a lid, not an agreed sentence.
III. Penal Code section 4019 amendment
On January 25, 2010, after defendant was sentenced, an amendment to Penal Code section 4019 became effective. The amendment increased the amount of presentence conduct credit available to defendants who are not required to register as sex offenders and whose current and prior offenses do not include serious or violent felonies. In a standing order filed on February 11, 2010, we deemed raised the issue of whether the amendment applies retroactively to pending appeals in which the defendant was sentenced before the effective date. We have considered this issue and we conclude that the amendment does not apply retroactively for the reasons set forth in People v. Rodriguez (Mar. 1, 2010, F057533) ___ Cal.App.4th ___. Defendant in this case, therefore, is not entitled to additional credits under the amendment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, J., Cornell, J.