Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR 182162
Ruvolo, P. J.
I.
INTRODUCTION
Appellant Eric Lee Carlsen (Carlsen) appeals from his conviction of possession of methamphetamine. He argues that the court erred in denying his motion to suppress, that his Fifth Amendment rights were violated by the prosecutor’s closing argument, and that the portion of his sentence regarding serving 75 days in county jail was error. We agree that Carlsen’s sentence in this regard was error, but affirm the judgment in all other respects.
II.
PROCEDURAL BACKGROUND
The Solano County District Attorney charged Carlsen with one count of possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) Carlsen filed a motion to suppress evidence of the methamphetamine found in his pocket, which was denied. A jury found Carlsen guilty. The court sentenced Carlsen to 75 days in county jail, but found that he had 75 days of custody credit. The court suspended imposition of sentence, and placed Carlsen on probation for three years pursuant to Proposition 36, which provides for drug treatment programs in lieu of incarceration under certain conditions. This timely appeal followed.
II.
FACTUAL BACKGROUND
On the evening of January 11, 2006, Vallejo police officers Mika Boyce and Stanley Eng were on patrol. At approximately 11:00 p.m., they drove into the parking lot of Wardlaw Elementary School in Vallejo to perform a security check.
In the school parking lot, they stopped to investigate a parked car. Officer Boyce approached the car and saw Carlsen in the driver’s seat. Officer Boyce asked Carlsen why he was there, and requested identification. Carlsen responded that he lived down the street, and was listening to music. Officer Boyce inquired whether he was on probation, and Carlsen said he was. Officer Boyce asked if he had any weapons, and Carlsen replied that he had a knife. Officer Boyce then asked if “he minded if I searched him and he told me, “Naw, go ahead.” He found the knife in Carlsen’s pants pocket. He also found, in the pants coin pocket, a “small plastic see-through baggie containing an off-white crystal-like substance,” which was later identified as methamphetamine. Officer Boyce arrested Carlsen.
Carlsen testified, admitting that he told Office Boyce he had a knife and admitting that he consented to the search. His defense was that he had never seen the baggie and its contents before, and they were not his. He testified he first “became aware” of the baggie when Officer Boyce put it on the hood of his car, but that Officer Boyce did not show it to him. Officer Boyce testified in rebuttal that he showed Carlsen the baggie containing methamphetamine when he removed it from Carlsen’s pants.
IV.
DISCUSSION
A. Motion to Suppress
Carlsen argues that the court erred in denying his motion to suppress evidence of the baggie containing methamphetamine found in his pocket. In ruling on the motion, the court found that “Officer Boyce did act reasonably under the circumstances, certainly in contacting the defendant. [¶] He found [him] parked, 11 p.m., public school parking lot, which is obviously enough to raise a suspicion to the officer why someone would be there parked, sitting in a school parking lot that’s long been closed. [¶] He certainly had reasonable grounds to contact him. [¶] I find that the contact was brief. It was a detention at the time when he took his driver’s license from him, but I find that that detention was reasonable in light of the fact it was really brief, and then he received consent from the defendant to search. [¶] So the motion to suppress will be denied. He’s also on [probation subject to] search and seizure, so probably could have searched him anyway, but—we need to set this for setting?”
Carlsen urges that the court erred in stating he was “probably” subject to a search condition, maintaining that the court’s “supposition was not supported by the evidence.” We need not address this issue, because it was not the basis of the court’s ruling.
“ ‘The standards for appellate review of the trial court’s determination on a motion to suppress pursuant to [Penal Code] section 1538.5 are well settled. The trial court’s factual determinations are reviewed under the deferential substantial evidence standard; its determination of the applicable rule of law is scrutinized under the standard of independent review. [Citation.] We independently assess as a question of law whether, under such facts as found by the trial court, the challenged action by the police was constitutional. [Citation.]’ . . . ” (People v. Lindsey (2007) 148 Cal.App.4th 1390, 1395, citing People v. Coulombe (2000) 86 Cal.App.4th 52, 55-56.)
A detention is reasonable under the Fourth Amendment “when the detaining officer can point to specific facts that, 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.) A police officer may “stop and detain a motorist on reasonable suspicion that the driver has violated the law. [Citations.]” (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083.) “ ‘ “Under the Fourth Amendment, government officials may conduct an investigatory stop of a vehicle only if they possess reasonable suspicion: a particularized and objective basis for suspecting the particular person stopped of criminal activity.” ’ ” (Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480, 1484, citing People v. White (2003) 107 Cal.App.4th 636, 641.) While the standard of reasonable suspicion is less demanding than that of probable cause, “no stop or detention is permissible when the circumstances are not reasonably ‘consistent with criminal activity’ and the investigation is therefore based on mere curiosity, rumor, or hunch.” (In re Tony C. (1978) 21 Cal.3d 888, 894, superseded on other grounds by Cal. Const., art. I, § 28.) Even if an innocent explanation of the circumstances is possible, police may nevertheless have reasonable suspicion. (In re Tony C., supra, at p. 894.)
Carlsen argues that the police had no reasonable suspicion to detain him. He maintains that there is “no evidence that Boyce harbored any suspicion that [he] was doing anything, had done anything or was about to do anything other than park his car in a lot that, notwithstanding the lack of signs to that effect, was closed to the public at that hour.” He also urges that, even if he had violated the law, that his detention lasted longer than necessary.
The Attorney General argues that Carlsen was not detained at all before he consented to the search. We find that, assuming Carlsen was detained, the detention was reasonable under the totality of the circumstances.
We examine the totality of the circumstances as known to Officer Boyce at the time of the incident. Officer Boyce testified at the hearing on the motion to suppress that, while on patrol by Wardlaw Elementary School at 11:00 p.m., he and his partner discovered Carlsen in a parked car on school grounds. Though the gate to the school parking lot was open, Officer Boyce testified that the school was not open to the public at that hour, based on a “Vallejo Municipal Code and a California Penal Code [s]ection.” Officer Boyce approached Carlsen to find out why he was on school grounds. He asked for identification, and Carlsen gave him his driver’s license. Carlsen told him “he lived down the street and . . . was sitting there listening to music.” Officer Boyce asked Carlsen if he was on probation, and Carlsen replied that he was, for domestic violence. Officer Boyce asked him to exit the vehicle. He asked if Carlsen had any weapons, to which he responded that he had a knife. Officer Boyce then asked for and received Carlsen’s consent to search him.
The Attorney General has identified the local ordinance as Vallejo Municipal Code section 7.91.020, which provides: “No person may delay, linger, or idle about any public parking lot or facility of any business premises, or on any privately owned or leased parking lot thereof without lawful business for being present.”
Officer Boyce had a reasonable suspicion that Carlsen had broken the law when he first approached his vehicle. He observed him parked in a school parking lot that was closed to the public at that hour, which he testified was pursuant to a Vallejo ordinance. Even had Carlsen’s presence in the school parking lot at that hour not been a violation of the law, his presence in the deserted parking lot, at 11:00 p.m. in the evening, certainly justified Officer Boyce’s initial inquiry. Carlsen’s response to each question posed by Officer Boyce objectively added to the initial reasonable suspicion. His innocent, though improbable, explanation—that he lived nearby but was sitting in the school parking lot listening to the radio—objectively served only to heighten suspicion. His subsequent response that he was on probation for a violent offense and had a weapon with him would not, objectively, lessen that suspicion. Officer Boyce testified that he spoke with Carlsen for “[p]robably not more than a minute” while he was sitting in his vehicle. We cannot say that, under these circumstances, the detention was unlawful or unduly prolonged.
Carlsen also claims that he did not consent to a “full search of his person,” but at most to a pat-down search under Terry v. Ohio (1968) 392 U.S. 1, 21. He claims that because Officer Boyce asked if he could search him after he told the officer that he had a knife, that his consent was “properly interpreted as extending only to a weapons search . . . .” While an individual may limit the scope of the search to which he or she consents, we look to whether “his consent would reasonably be understood” to be so limited. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1409.) “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect? [Citations.]” (Florida v. Jimeno (1991) 500 U.S. 248, 251.) Officer Boyce reasonably relied on Carlsen’s unambiguous response to his inquiry, rather than on Carlsen’s unexpressed intent that his consent was limited to a search for weapons. The court did not err in denying the motion to suppress.
B. Fifth Amendment Claim
Carlsen urges that his Fifth Amendment rights were violated by the prosecutor’s closing argument regarding his testimony that he had never seen the baggie containing methamphetamine before. He objects to the following portion of the prosecutor’s argument: “Now, after the bag was pulled out, officer Boyce testified he showed the bag to [Carlsen], told [Carlsen] he was arrested. That was the end of the statement; end of the case. [¶] After he was arrested, now you have five months later, [Carlsen] all of a sudden gets on the stand, says, ‘Hey.’ Now it’s, ‘I don’t know anything about it.’ As he testified today, ‘I didn’t know it was there. I didn’t see the officers pull it out.’ [¶] It’s not reasonable, okay, and you determine the factors, what’s reasonable? You decide the witness’s credibility. Who are the more credible witnesses in this case?”
Carlsen also argues that, if this claim is waived due to his counsel’s failure to object in the trial court, he did not receive effective assistance of counsel. Accordingly, we address this claim on the merits.
Carlsen claims that these statements violated his Fifth Amendment rights because “once [he] was arrested and Mirandized, his silence could not be used against him.” He relies on Doyle v. Ohio (1976) 426 U.S. 610, in which the court held that no evidence of a defendant’s post-arrest silence may be used to “impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest.” (Id. at p. 611, fn. omitted.) “[T]he use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” (Id. at p. 619, fn. omitted (conc. opn. of White, J.).) Likewise, during closing argument, the prosecutor may not comment on the defendant’s “assertion of his constitutional rights.” (People v. Thompson (1986) 183 Cal.App.3d 437, 442.)
We find nothing in the prosecutor’s remarks during closing argument which would constitute an improper commentary on a defendant’s assertion of his constitutional rights under Doyle. The prosecutor’s comments were not regarding Carlsen’s silence at the time of his arrest. Instead, the prosecutor properly highlighted the fact that Officer Carlsen testified that he showed Carlsen the baggie when he found it in his pants, and told him why he was being arrested. In contrast, Carlsen testified at trial that he never saw the baggie with the suspected methamphetamine before Officer Boyce put it on the hood of his car, and that Officer Boyce did not show it to him. The prosecutor’s remarks were a proper comment on the evidence and the credibility of Carlsen’s testimony, not a commentary on any alleged assertion of his right to remain silent.
C. Sentencing Under Proposition 36
Carlsen maintains that, because he was sentenced in accordance with Proposition 36, the court erred in sentencing him to 75 days in county jail. Proposition 36, codified in Penal Code section 1210 et seq., provides in pertinent part: “[A]ny person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. . . . A court may not impose incarceration as an additional condition of probation. . . .” (Pen. Code, § 1210.1, subd. (a).) The Attorney General agrees that Carlsen’s sentence to 75 days in county jail should be stricken. We agree.
Though the court sentenced Carlsen to 75 days in county jail, it deemed that sentence served based on Carlsen’s custody credits.
V.
DISPOSITION
The trial court is ordered to strike that portion of the sentence regarding the 75 days in county jail and file an amended abstract of judgment. In all other respects, the judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.