Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA068787, James R. Brandlin, Judge.
Henry Salcido for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Defendant David Emmanuel appeals from his conviction after pleading no contest to possession of a dirk or dagger in violation of Penal Code section 12020, subdivision (a)(4)) and admitting two prior prison terms and a prior felony conviction within the meaning of the “Three Strikes” law. He was sentenced to state prison for four years eight months, comprising one year and four months for the offense, doubled under the Three Strikes law, and two consecutive one-year prior prison term enhancements. He contends the trial court erroneously denied his motion to suppress all evidence obtained by police after he was detained, because no substantial evidence supported his detention. We disagree and affirm.
Undesignated code section references are to the Penal Code.
BACKGROUND
On the evening of July 15, 2007, a Saturday, Hermosa Beach Police Officer Droz was patrolling Hermosa Avenue in a marked vehicle when he observed David riding a skateboard and holding what appeared to be a 24-ounce Foster’s beer can, gripping it upright between his thumb and fingers so that the top was close to his palm. The can was not in a bag or container. Droz could not tell from his patrol car whether it was open or closed. Hermosa Beach Municipal Code section 9.04.010, subdivision (f) prohibits individuals from carrying open containers of alcohol in public. Droz testified that on weekends he stops many people holding beer containers which, upon investigation, turn out to be open. He detained David to determine whether the can was open and contained alcohol. Finding the can open and containing beer, Droz requested identification, which David provided. He then conducted a records check and was informed David had an outstanding misdemeanor arrest warrant from the city of Manhattan Beach. Droz was informed the Manhattan Beach police department would come to his location to pick up David.
Droz chose not to cite David for the open alcohol container but handcuffed and searched him in preparation for transfer to the custody of Manhattan Beach police. The search revealed three sheathed, fixed-blade, double-edged knives, each about seven inches long and having a three-and-a-half inch blade, carried in a fanny pack.
The Los Angeles County District Attorney filed an information charging David with one count of carrying a dirk or dagger in violation of subdivision (a)(4) of section 12020. The information further alleged that David had suffered one prior conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served two prior prison terms (§ 667.5, subd. (b)). He was arraigned, pled not guilty, and denied all allegations.
David filed a motion pursuant to section 1538.5 to suppress evidence obtained from the search, arguing the detention was illegal because Droz lacked reasonable suspicion that the beer can was open and contained alcohol. He also filed a motion to strike the allegation of his prior “strike” conviction under People v. Superior Court (1996) 13 Cal.4th 497 (Romero). The court denied both motions. David then withdrew his plea, waived his trial rights, pleaded no contest to the information, and admitted both of the special allegations. The court found David guilty of the count in the information and found true the prior conviction and prior prison term allegations. It sentenced him to the low term of one year four months, doubled under the Three Strikes law, plus two years for the prior prison term enhancements. David timely appealed. The court granted David bail pending appeal, but revoked bail after he was charged in a separate case. It recalled his sentence, struck the prior prison term enhancements, and resentenced him to a total of two years eight months in state prison, comprising a lower base term of one year four months, doubled pursuant to the Three Strikes law. The court awarded David 206 days of actual custody credit and 102 days of local conduct credit, for a total of 308 days of presentence credit.
DISCUSSION
David contends the police lacked reasonable suspicion to detain him and the trial court erred by denying his motion to suppress evidence obtained from the search. He also contends the trial court imposed a cruel and unusual sentence and abused its discretion when it refused to strike the allegation of his prior strike conviction. We disagree with each contention.
MOTION TO SUPPRESS EVIDENCE
In reviewing the denial of a motion to suppress, we review the trial court’s explicit and implicit factual findings for substantial evidence, then exercise our independent judgment to determine, as a matter of law, whether the search or detention was constitutionally reasonable based upon the evidence supporting the factual findings. (See People v. Loewen (1983) 35 Cal.3d 117, 123; People v. Hester (2004) 119 Cal.App.4th 376, 385.) In reviewing the factual findings for substantial evidence, we presume in support of the findings the existence of every fact the trier of fact reasonably could deduce from the evidence, and if the circumstances reasonably justify the findings, we must affirm even if the circumstances and evidence would also support a contrary finding. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
“A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable 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.) Reasonable suspicion sufficient to support an investigative detention involves a less rigorous standard than probable cause for arrest. (Id. at pp. 230-231.) “[T]he lawfulness of a temporary detention depends not on any one circumstance viewed in isolation, but upon the totality of the circumstances known to the detaining officer[.]” (Id. at p. 227.) “The reasonableness of official suspicion is measured by what the officers knew before they acted.” (People v. Hester, supra, 119 Cal.App.4th at p. 386.) This particularized suspicion is based on the inferences and deductions a trained police officer, not a lay person, would make regarding the totality of the circumstances based upon probabilities, not hard certainties. (Ibid., citing United States v. Cortez (1981) 449 U.S. 411, 418.)
With this standard in mind, we conclude that the record provides substantial evidence of specific articulable facts that, considering the totality of the circumstances, gave rise to a particularized suspicion that David may have been involved in criminal activity when he was detained.
Droz testified he saw David carrying “[w]hat appeared to be a 24-ounce can of Foster’s beer.” He testified, “Prior to the stop, I knew I was looking at a 24-ounce Foster’s beer can. I’m not an expert witness when it comes to beer. But I know what a 24-ounce Foster’s beer can looks like.” When the trial court asked, “did you know it was a beer can before you actually directed him to stop or to sit down, but just weren’t sure if it was open?” Droz replied, “Yes, sir.” Droz testified David carried the beer can upright, without a bag or container, in a manner conducive to preventing spillage. Droz knew consuming alcohol in public on weekend nights in this particular area was common, and if an individual carried a can of beer in the area the probability was high that he or she was consuming it. These specific, articulable facts supported a reasonable suspicion that David was carrying an open alcohol container in public.
David argues Droz had no reason to believe that the can was open because he did not see David drink the beer, none spilled, David did not appear intoxicated, and his behavior was equally consistent with lawful activity. He offers Internet research indicating the way he held the can was consistent with the position needed to maintain balance on a skateboard. However, “‘The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.’” (People v. Souza, supra, 9 Cal.4th at p. 233, quoting In re Tony C. (1978) 21 Cal.3d 888, 894.) “Rather, when circumstances are ‘“consistent with criminal activity,” they permit—even demand—an investigation[.]’” (Ibid.) Here, David’s actions, even had they been entirely innocent in actuality, were consistent with criminal activity under the totality of the circumstances known to Droz. That he did not consume the beer or act intoxicated (or that the position of the can was conducive to good balance) merely renders the situation ambiguous. Droz justifiably stopped David to resolve the ambiguity.
The authorities David cites do not compel a different conclusion. In each, unlike this case, the defendants were not reasonably implicated in criminal activity when they were detained. (E.g., People v. Aldridge (1984) 35 Cal.3d 473, 480 [indiscriminate detention and interrogation of all persons in an area is unreasonable]; People v. Perrusquia (2007) 150 Cal.App.4th 228 [detained defendant was merely crouching down in a vehicle in a parking lot]; Jackson v. State (Tex.Ct.App.1984) 681 S.W.2d 910 [holding an open bottle of beer does not reasonably imply intoxication].)
David argues for the first time on appeal that by regularly stopping individuals carrying beer cans, Droz operated a de facto checkpoint to uncover unspecified crimes. He argues such a checkpoint is the sort of nonspecific generalized law enforcement intrusion prohibited by Indianapolis v. Edmond (2000) 531 U.S. 32.
A party may not offer on appeal a theory regarding suppression of evidence that was not advanced below. (People v. Williams (1999) 20 Cal.4th 119, 130-131.) David acknowledges this obstacle, but argues the new theory is not precluded because his motion to suppress fairly informed the trial court of the analysis it was asked to undertake, and issues regarding the deprivation of certain fundamental, constitutional rights may be raised for the first time on appeal. The argument is meritless. In People v. Williams, supra, the defendant attempted to introduce for the first time on appeal a new reason why evidence should have been suppressed. (20 Cal.4th at p. 125.) Our Supreme Court flatly rejected the effort, stating that “defendants must specify the precise grounds for suppression of the evidence in question.... Defendants cannot... lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked.” (Ibid.) People v. Williams is on all four corners with the instant case and controls the result. The authorities upon which David relies either undermine his position or are inapposite. (E.g., Pen. Code, § 1259 [appellate court may review issues to which objection was made below even without exception having been taken]; People v. Partida (2005) 37 Cal.4th 428, 437-438 [new justification, not offered at trial, for exclusion of evidence is forfeited, though appellant may raise new argument as to the consequence of exclusion]; People v. Vera (1997) 15 Cal.4th 269, 276-277 [claim asserting deprivation of certain constitutional rights—for example single jeopardy and jury trial—may be raised for the first time on appeal, but claims regarding deprivation of statutory rights are waived if not preserved]; People v. Saunders (1993) 5 Cal.4th 580, 591-592 [same]; People v. Holmes (1960) 54 Cal.2d 442-443 [waiver of constitutional right to jury trial must be express].)
At any rate, David’s belated argument is without merit. Though an indiscriminate detention program conducted to prevent unspecified crime violates the Fourth Amendment (Indianapolis v. Edmond, supra, 531 U.S. at pp. 41-42, 44; People v. Aldridge, supra, 35 Cal.3d at p. 480), no evidence suggests Droz operated such a program. He detained David because he reasonably believed he was violating a city ordinance. That Droz stopped many people in the area who held cans of beer suggests assiduousness and particularity, not an indiscriminate policy of detaining everyone to prevent unspecified crime.
The detention was constitutionally reasonable.
Even if the detention was unreasonable David’s motion to suppress the knives was still properly denied. Evidence will be suppressed when it has been procured by a method, e.g., illegal police action, that taints it. (People v. Brendlin (2008) 45 Cal.4th 262, 268, 271.) But suppression is not justified simply because the illegal action was a but-for cause of obtaining the evidence. (Ibid.) The question is whether the evidence was obtained by exploitation of the illegal action or “‘“‘instead by means sufficiently distinguishable to be purged of the primary taint.’”’” (Id. at p. 268, citation omitted.) For example, under some circumstances an arrest warrant will “attenuat[e] the taint of an antecedent unlawful traffic stop.” (Id. at p. 268.) “‘The question before the court is whether the chain of causation proceeding from the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstance so as to remove the “taint” imposed upon that evidence by the original illegality.’ [Citation.] ‘Relevant factors in this “attenuation” analysis include the temporal proximity of the Fourth Amendment violation to the procurement of the challenged evidence, the presence of intervening circumstances, and the flagrancy of the official misconduct.’” (Id. at p. 269, citation omitted.)
When the intervening circumstance is a valid outstanding arrest warrant, the first factor, temporal proximity of the invalid detention to the procurement of the challenged evidence, is outweighed by the other two factors. (45 Cal.4th at p. 270.) As to the second factor, presence of intervening circumstances, “an arrest under a valid outstanding warrant—and a search incident to that arrest—is an intervening circumstance that tends to dissipate the taint caused by” an illegal detention. (Id. at p. 271.) The third factor, the flagrancy of the official misconduct, “is generally regarded as the most important because ‘it is directly tied to the purpose of the exclusionary rule—deterring police misconduct.’” (45 Cal.4th at p. 271.)
Here, no evidence suggests Droz committed misconduct. Even if, for the sake of argument, the court were to conclude he had no reasonable basis upon which to detain David, a mere mistake as to the quantum of suspicion necessary to justify stopping a person plainly carrying an unwrapped beer can in public does not establish that the detention was pretextual or in bad faith. Droz testified he detained David to determine whether the beer container was open and contained alcohol. If the justification was insufficient, the insufficiency was not so obvious as to make one question Droz’s good faith. No evidence suggests Droz invented the justification so that he could run a warrant check or search David’s person. Under these circumstances, the warrant sufficiently attenuated the connection between David’s detention and Droz’s discovery of the knives.
In sum, the detention was not unlawful. Even if it was, the facts of the encounter demonstrate the knives were not fruit of the detention, but of the outstanding arrest warrant. David’s motion to suppress the knives was therefore properly denied.
MOTION TO STRIKE PRIOR “STRIKE” CONVICTION
In 2001, David was convicted of assault with a deadly weapon, which is a strike for purposes of the Three Strikes law. (§§ 245, subd. (a)(1), 667, subd. (d)(1); 1192.7, subd. (c)(1)[31].) Below, David moved the court to strike the allegation of a prior strike conviction in the interest of justice (§ 1385) under the authority of Romero, supra, 13 Cal.4th 497. The court denied the motion, finding, “based on the facts of the case, the defendant’s prior criminal history, that it’s appropriate to proceed as a strike offense. [¶] The court does not find that the defendant falls outside the spirit of the Three Strikes law.”
David argues the trial court abused its discretion in denying his motion to strike a strike because he falls outside the spirit and intent of the Three Strikes law. We disagree.
“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law... or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) A ruling on such a request is subject to review for abuse. (Id. at p. 162.)
On appeal, the burden is on the party attacking the sentence to “‘clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (People v. Superior Court (1997) 14 Cal.4th 968, 977-978 (Alvarez).) Thus, in reviewing sentencing matters appellate courts must apply an “extremely deferential and restrained standard.” (Id. at p. 981.) “Because the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (People v. Carmony (2004) 33 Cal.4th 367, 378.)
Under this standard we find no abuse of discretion in the trial court’s concluding that David fell within the spirit of the Three Strikes law.
David was convicted eight times between 1983 and 2007. Four of the convictions were for possession of a dangerous or concealed or assault weapon and a fifth was for assault with a deadly weapon. He was sentenced to county jail three times (one of the sentences was for one day) and state prison twice. He did not dispute the accuracy of the recitation of his criminal history. Instead, in moving to have the strike stricken, David offered evidence relating to his family, education, work and religion; character references from friends, relatives and employers; and reports of successful participation in substance abuse programs. He argues the strike offense occurred six years before the current offense, no evidence suggests the three knives were used for a criminal or violent purpose, the crime had no victim and caused no damage, and the crime was not of increasing seriousness.
Nothing about David’s prior convictions is favorable to his position. He has been convicted of weapons-related offenses five times, including a conviction for assault with a deadly weapon in 2001. Though his current crime was committed six years after the strike and did not involve use of physical force or bodily injury, and though he may lead a reasonably successful personal life now, no extraordinary circumstances would compel reasonable minds to agree he falls outside the spirit of the Three Strikes scheme. The trial court could reasonably conclude he is a recidivist who will not conform to the law respecting weapons, which puts him squarely within the spirit of the Three Strikes scheme.
CRUEL AND UNUSUAL PUNISHMENT
David contended in his opening brief that the sentence of four years eight months constituted cruel and unusual punishment. After he submitted his opening brief, however, his sentence was recalled, and he was sentenced to a total of two years eight months. It is not clear whether David contends his new sentence constitutes cruel and unusual punishment, as in his reply he merely “submits this issue based on the briefs.” The court will assume he contends two years eight months constitutes cruel and unusual punishment.
“Under the federal Constitution, the issue is whether the sentence is ‘grossly disproportionate’ to the crime. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001.) Under the state Constitution, the issue is whether the sentence ‘is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.)” (People v. Gray (1998) 66 Cal.App.4th 973, 992.)
David argues he is a stable individual with a supportive family and close ties to the community whose last major crime occurred six years before the current offense. He argues the current offense “verges on the innocuous” and was “derived from the fact that he was detained for riding his skateboard holding a can of beer.”
In making these arguments David focuses primarily on his present offense and gives only passing recognition to the fact that recidivism is relevant to sentencing. Regarding a person sentenced under a recidivist statute such as the Three Strikes law, however, recidivism is precisely what is being punished. (See, e.g., Rummel v. Estelle (1980) 445 U.S. 263, 284; People v. Cooper (1996) 43 Cal.App.4th 815, 823-824.)
Given his criminal history and the consonance of his current crime, David’s sentence of two years eight months is not cruel and unusual punishment under the federal Constitution. In Ewing v. California (2003) 538 U.S. 11 and Lockyer v. Andrade (2003) 538 U.S. 63 the United States Supreme Court rejected cruel and unusual punishment claims and upheld sentences of 25 and 50 years to life, respectively, under California’s Three Strikes law imposed on defendants whose current crimes were minor thefts. The Supreme Court has also rejected a claim that a sentence of 50 years to life, which given the defendant’s age, was in effect a sentence of life without the possibility of parole, constituted cruel and unusual punishment for petty theft with a prior. (Id. at p. 74, fn. 1.)
Likewise, David’s sentence does not constitute cruel and unusual punishment under the California Constitution. (See In re Lynch, supra, 8 Cal.3d at pp. 423-427 [describing the framework for analysis of allegedly cruel and unusual sentences under the California Constitution].) Even a parole date that may be beyond a defendant’s life expectancy does not implicate the cruel and unusual provisions of the state or federal constitutions. (See, e.g., People v. Ayon (1996) 46 Cal.App.4th 385, 399.)
Considering David’s criminal history and the serious nature of his current offense, the two year eight month sentence in this case is not so grossly disproportionate to his crime as to offend common notions of decency or shock the conscience.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J. ROTHSCHILD, J.