Opinion
2d Crim. No. B228862
12-05-2011
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE WILLIAM CRIST, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Russell A. Lehman, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 2008052656)
(Ventura County)
Lawrence William Crist appeals a judgment entered following his guilty plea to transportation of methamphetamine, and unlawful possession of ammunition, with admissions of unlawful possession of a firearm, three prior felony drug convictions, service of two prior prison terms, and commission of a criminal offense while released on bail. (Health & Saf. Code, §§ 11379, subd. (a), 11370.2, subd. (c); Pen. Code, §§ 12316, subd. (b)(1), 12022, subd. (c), 667.5, subd. (b), 12022.1, subd. (b).) We modify the judgment to reflect reduced penalty assessments, but otherwise affirm.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
Port Hueneme Police Sergeant Robert Gager is an experienced narcotics officer with extensive training and experience regarding drug crimes. For two years he served as an undercover narcotics officer buying and selling illegal drugs and observing drug transactions. Gager had applied for many search warrants to search for illegal drugs and had testified as an expert witness in court. By the time of the preliminary examination, he had been a police officer for 14 years and was a certified drug recognition expert.
In the evening of December 17, 2008, Gager visited an Oxnard doughnut shop to buy a cup of coffee. As he left his marked patrol vehicle, he noticed a tall Caucasian man, later identified as Rick Gormley, sitting at a table outside the shop. Gormley appeared to be "extremely agitated" at Gager's arrival; he fidgeted in his chair and constantly licked his lips. As Gager ordered coffee, Gormley looked back at him at least 10 times. Gager suspected "something was afoot," i.e., "something of [a] criminal nature was occurring."
Crist then arrived at the shop parking lot in an orange-colored Nissan automobile. Gormley arose from his chair and walked to the Nissan automobile, but "continually looked back at [Gager]." Based on his suspicions of criminal activity, Gager returned to his patrol vehicle and drove to a parking lot approximately 150 yards away. With the use of 10-power binoculars, he observed Crist and Gormley inside the Nissan automobile.
Gager saw Crist hand Gormley "quite a wad of money" and Gormley simultaneously hand an object to Crist. There was little conversation between the men, and the transaction was complete in less than one minute. Gager saw the transaction clearly because the Nissan automobile was illuminated by its interior light.
As Gager returned to the doughnut shop parking lot, Gormley left Crist's automobile and drove away. Gager followed Crist as he drove from the parking lot. Gager soon made a traffic stop and asked Crist to explain the exchange of currency. Crist was nervous and his hands shook as he explained that Gormley owned the Nissan automobile and that he was buying it from him. Gager asked Crist if he possessed any drugs and he responded that he did not and stated that he was not on parole or probation. When Crist reached into the back of the automobile for his registration documents, Gager noticed a police scanner in the vehicle.
Gager directed Crist to leave the automobile. He patted Crist down and found a baggie containing methamphetamine in his pants pocket. Gager subsequently searched the automobile and found a scale in the front console.
Gager arrested Crist. A later search revealed two packages of methamphetamine in Crist's shoe and a loaded pistol in his waistband.
Nearly five months later, while released on bail, Crist was driving in Oxnard. Ventura County Sheriff's Deputy Peter Frank stopped and searched Crist's automobile. Among other things, Frank found firearm ammunition in a storage compartment.
Crist moved to suppress evidence of the methamphetamine, firearm, and ammunition, among other things, asserting that his detention near the doughnut shop was unlawful because it rested upon Gager's "hunch" of a drug transaction. (§ 1538.5.) The trial court conducting the preliminary examination denied Crist's motion. In ruling, the court stated: "[G]iven Sergeant Gager's background, his training and experience, it was apparent to him what he was seeing was a narcotics transaction. I do find there's probable cause, and I find Sergeant Gager to be a credible witness on all counts." Crist twice renewed the suppression motion, but on each occasion the court denied the motion.
As the basis for the third suppression motion, Crist alleged that he had "new evidence" suggesting that Gager could not see inside the Nissan automobile.
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Thereafter, Crist waived his constitutional rights and pleaded guilty to transportation of methamphetamine (count 2) and unlawful possession of ammunition (count 7). He also admitted unlawfully possessing a firearm, suffering three prior felony drug convictions, serving two prior prison terms, and committing a criminal offense while released on bail. (Health & Saf. Code, § 11370.2; §§ 12022, subd. (c), 667.5, subd. (b), 12022.1, subd. (b).)
The trial court sentenced Crist to a prison term of eight years, consisting of a three-year midterm for count 2, three years for the firearm enhancement, and two years for the prior prison terms served. The court reduced count 7 to a misdemeanor and imposed a concurrent 365-day county jail term for that count. It also imposed a $200 restitution fine, a suspended $200 parole revocation restitution fine, a $200 laboratory analysis fee (including penalty assessments), and a $600 drug program fee (including penalty assessments). (§§ 1202.4, subd. (b), 1202.45; Health & Saf. Code, §§ 11372.5, 11372.7, subd. (a).) The court awarded Crist 1,204 days of presentence custody credit, struck the Health and Safety Code section 11370.2 allegations, and dismissed the remaining counts.
Crist appeals and challenges 1) the denial of his motion to suppress evidence and 2) imposition of the laboratory fee and drug program fees, including penalty assessments.
DISCUSSION
I.
Crist argues that he was detained on a mere hunch and that Gager's testimony is not credible. He reasons that it is unlikely that persons would buy and sell drugs in an illuminated vehicle and questions the accuracy of Gager's observations through binoculars. Crist points out that police officers may not detain persons based on nervous behavior alone. (People v. Moore (1968) 69 Cal.2d 674, 683, overruled on other grounds by People v. Thomas (1977) 19 Cal.3d 630, 641, fn. 8.) He adds that there is no evidence that the Oxnard doughnut shop area is in an area noted for narcotics or other crimes. (People v. Limon (1993) 17 Cal.App.4th 524, 532 [detention reasonable where officer observes hand-to-hand exchange in an area known for drug sales].) Crist relies on Cunha v. Superior Court (1970) 2 Cal.3d 352, 356-357, concluding that police officers lacked probable cause to arrest two men engaged in a hand-to-hand transaction in an area noted for narcotics activity.
In deciding whether a search and seizure is reasonable, the trial court determines the credibility of witnesses, resolves factual conflicts, and weighs the evidence. (People v. Woods (1999) 21 Cal.4th 668, 673.) On review of the denial of a motion to suppress evidence, the appellate court defers to the trial court's express and implied factual findings that are supported by sufficient evidence. (People v. Brendlin (2008) 45 Cal.4th 262, 268.) We exercise our independent judgment, however, in determining the reasonableness of the search and seizure. (Ibid.)
"[A]n officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law." (People v. Wells (2006) 38 Cal.4th 1078, 1082.) A traffic stop is reasonable if the detaining police officer can point to specific articulable facts that objectively suggest the detainee is violating the law in light of the totality of the circumstances. (In re Raymond C. (2008) 45 Cal.4th 303, 307.) Although the officer's reliance on a "hunch" is insufficient to justify a detention, the likelihood of criminal activity need not rise to a probable cause standard. (United States v. Arvizu (2002) 534 U.S. 266, 274.) Given the totality-of-the-circumstances standard, we evaluate the reasonableness of a detention on a case-by-case basis. (Ibid.)
In determining whether a search is reasonable, a court may consider "the modes or patterns of operation of certain kinds of lawbreakers." (United States v. Cortez (1981) 449 U.S. 411, 418.) Law enforcement officers may "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.'" (United States v. Arvizu, supra, 534 U.S. 266, 273.) This process does not deal with "hard certainties, but with probabilities." (Cortez, at p. 418.) "Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers." (Ibid.) A determination that reasonable suspicion exists, however, "need not rule out the possibility of innocent conduct." (Arvizu, at p. 277.)
The trial court properly denied the suppression motion because the totality of the circumstances established an objectively reasonable suspicion that Crist was engaged in the sale of illegal drugs. Gager, a 14-year police officer, testified that he had served for two years as an undercover narcotics officer. During that time, he observed illegal drug transactions and bought and sold illegal drugs. Gager stated that he was a certified drug recognition expert, had attended classes regarding the investigation of drug crimes, and had applied for search warrants in drug cases. Outside the doughnut shop, Gager observed that Gormley became "extremely agitated" at his arrival in a marked patrol vehicle. Gormley constantly licked his lips and looked back at Gager at least 10 times as Gager purchased coffee. When Gager left, Gormley entered Crist's automobile and he and Crist engaged in a brief hand-to-hand transaction with very little conversation. Thereafter, Gormley immediately left Crist's automobile and drove away. Drawing on his extensive experience as a narcotics officer, Gager had a "'particularized and objective basis'" for suspecting Crist was involved in the sale of illegal drugs. (United States v. Arvizu, supra, 534 U.S. 266, 273.)
Cunha v. Superior Court, supra, 2 Cal.3d 352, does not assist Crist. There, two police officers observed the defendant and another man exchange an object for money. The officers approached the suspects and asked if they were selling drugs. When they gave a negative reply, the officers returned them to the site of the suspected transaction, placed them under arrest, and discovered heroin in the pants pocket of one of the men. (Id. at p. 355.) Observing in dictum that the court doubted whether the suspects' activities were sufficient to justify a detention, the Supreme Court found the arrest invalid for lack of probable cause. (Id. at pp. 356-357.)
Here an experienced narcotics officer observed Gormley to be agitated, nervous, and constantly licking his lips. Gormley looked back at Gager at least 10 times as Gager bought coffee. From a distance, Gager saw the hand-to-hand exchange in the illuminated automobile. Gormley left immediately after the exchange. Given Gager's experience and training as a narcotics officer, the factual circumstances established a objectively reasonable suspicion of an unlawful drug sale.
II.
Crist contends that the trial court improperly imposed a drug program fee pursuant to Health & Safety Code section 11372.7, subdivision (b) because earlier it had found that he was unable to pay the presentence investigation fee. He also contends that the penalty assessments for the laboratory analysis fee and the drug program fee are miscalculated.
As part of the advisements given Crist prior to his guilty plea, he was informed in writing that penalty assessments would be imposed on a $50 laboratory analysis fee and a $150 drug program fee. At sentencing, Crist requested the trial court to find that he "doesn't have the ability to pay for the presentence investigation costs." The court replied "Okay." It later imposed the laboratory analysis and drug program fees, however, with applicable assessments.
Health and Safety Code section 11372.7, subdivision (b) requires the trial court to determine whether the defendant "has the ability to pay a drug program fee." Section 11372.7, subdivision (b) does not require the court to make an express finding of ability to pay. (People v. Staley (1992) 10 Cal.App.4th 782, 785.) Moreover, when the court imposes a drug program fee, it is presumed that it found that defendant has the ability to pay the fee. (People v. Clark (1992) 7 Cal.App.4th 1041, 1050 ["Since the record does not suggest otherwise, we presume the court found appellant had the ability to pay the fee"].) To the extent that the court determined that Crist does not have the ability to pay a drug program fee, it could have so stated. We thus presume that the court found that Crist has the ability to pay the drug program fee plus applicable assessments.
The Attorney General concedes that the penalty assessments are miscalculated, explaining that the trial court improperly applied the amended version of Government Code section 76104.7 (regarding penalty assessments), rather than the version in effect at the time Crist committed his crimes. The parties agree that the laboratory analysis penalty assessments should total $140, for a total fee of $190, and that the drug program penalty assessments should total $420 for a total fee of $570.
We modify the judgment to reflect $140 in penalty assessments added to the $50 laboratory analysis fee, and $420 in penalty assessments added to the $150 drug program fee, but otherwise affirm. We order the trial court to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
Allan L. Steele, Judge
Superior Court County of Ventura
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.