Opinion
A149263
06-22-2018
THE PEOPLE, Plaintiff and Respondent, v. SCOTT WILLIAM DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR670314)
Following denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, defendant Scott William Davis entered pleas of no contest to three charges arising out of his driving a vehicle while intoxicated and without a valid driver's license. He contends his suppression motion was erroneously denied and that the trial court abused its discretion when it denied his motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike a prior serious felony for purposes of sentencing.
The Suppression Motion
Defendant contends his suppression motion ought to have been granted because he was the victim of an unduly prolonged detention. We do not agree.
Defendant's motion was submitted and decided solely upon the testimony of California Highway Patrol Officer Jason Evans. Viewed most favorably to the trial court's ruling (People v. Davis (2005) 36 Cal.4th 510, 528-529), the record of Evans's testimony shows the following:
About 9:49 on the evening of October 26, 2015, Evans was on duty when he was "waived down by an individual" who identified himself as "a bouncer at a bar that was at that location." "He told me that he had just turned away an individual from entering the bar because that individual appeared to him to be extremely intoxicated." The "bouncer" also told Evans that the intoxicated person then "walked to a vehicle that was in the parking lot. He described the vehicle to me as a Jeep Cherokee. I believe he said something about . . . a roof rack and a ladder on the roof rack as well."
Officer Evans positioned himself so that he could watch the bar's parking lot. According to Evans, less than a minute elapsed before "I observed that person leave" in a Jeep and start driving "westbound on Sebastopol Road and Stony Point." "As the Jeep made a right turn on Stony Point . . . I initiated a traffic stop." The two vehicles pulled into a gas station.
Evans further testified that he walked over to the Jeep and advised the driver—whom he positively identified in court as defendant—"of the reason for the stop," namely, "that someone told me he might be intoxicated." Defendant became "pretty upset. He was yelling at me, he was telling me the stop was illegal. He wouldn't answer some of my questions about identifying him." When asked for his license, registration, and proof of insurance, defendant told Evans he had none of these items.
At this point, Evans began to be concerned for his own safety. As he described it, "with his demeanor I wasn't 100 percent sure what his intentions were. I felt at that point it was best [he] wait in his vehicle, return to my patrol vehicle, ask for the assistance of a backup unit. . . . I used that time to run a DMV check on the vehicle, as well as a DMV check on the name that he had provided to me."
As Evans waited for arrival of the backup unit, the radio dispatcher "provided me with a possible match because . . . I didn't know his exact date of birth, I didn't know his driver's license number." The "match that returned to the name [defendant] provided . . . had three previous DUI violations, as well as one or more suspensions on the license as well." The dispatcher also told Evans that defendant was the registered owner of the Jeep.
The backup unit arrived "several minutes" after Evans's request. Evans told defendant "why we were in this situation, and what my intentions were, just to make sure the information provided to me by the witness was either true or not." Defendant "was still a little upset, but he [had] calmed down some at that point." Defendant agreed to "exiting his vehicle and doing a DUI investigation."
When Evans asked defendant whether he had "any alcoholic beverages that evening," defendant replied that "he had two . . . beers earlier in the day." Defendant said "he went to the bar to contact a friend," but "he was turned away by a bouncer." As they were talking, Evans "could smell . . . the odor of alcohol [emanating] from him." Moreover, "he would kind of delay responses to me" and "[h]e would sway slightly sometimes." Defendant's eyes appeared "red and watery." Based on his training and experience, Evans concluded that all of this was "consistent with someone who may be impaired due to consuming alcohol."
Evans then conducted "field sobriety tests," namely, "horizontal gaze nystagmus, one-leg stand, wait and turn, modified Romberg balance, and the preliminary alcohol screening device," each of which Evans explained to defendant prior to conducting the test. Defendant provided two breath samples "The results were .168 percent blood alcohol and a .178 blood alcohol content." Evans then arrested defendant.
The sole ground for suppression stated in defendant's moving papers was "Officer Evans did not have sufficient specific [and] articulable, facts to justify detaining Mr. Davis; therefore the lengthily [sic] detention was unlawful." However, the only point developed in the two ensuing pages was whether Officer Evans knew enough to initially detain defendant, that is "specific articulable facts that, considered in 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.) The duration of the detention was never thereafter addressed in defendant's papers. The chronology of the detention was not explored in Evans's testimony, nor was the actual duration determined. The length of the detention was not mentioned in arguments on the motion to the trial court. On the other hand, the trial court did determine the detention "was for a reasonable duration for the purpose of investigating a DUI."
In these circumstances, it is debatable whether defendant's moving papers put the prosecution on notice that the duration of the detention would be at issue, thereby preserving that issue for appeal. (People v. Williams (1999) 20 Cal.4th 119, 136.) In any event, defendant cannot prevail on the merits.
Defendant begins his argument with the following: "A detention requires ' "some objective manifestation" that criminal activity is afoot and that the person to be stopped is engaged in that activity.' (People v. Souza (1994) 9 Cal.4th 224, 230.) It is true that a citizen's tip may itself create a reasonable suspicion sufficient to justify a temporary vehicle stop or detention, especially if the circumstances are deemed exigent by reason of possible reckless driving or similar threats to public safety. (People v. Wells (2006) 38 Cal.4th 1078, 1088.)" This we take to be defendant's acknowledgement that Officer Evans had a valid basis for the traffic stop of defendant and his vehicle.
The standard governing the length of a detention is whether police officers "in a diligent and reasonable manner" "pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." (United States v. Sharpe (1985) 470 U.S. 675, 687.) Officer Evans passes this test.
Given his uncooperative attitude, and his inability to produce any documentation, it was entirely proper for Evans to take time to determine through official records whether defendant was authorized to be driving the vehicle. That established, Evans then promptly moved to determine whether defendant was driving while intoxicated. It appears that as soon as the tests were completed, he arrested defendant. It is hard to imagine how Evans could have conducted his investigation more expeditiously.
Defendant faults Evans's decision to wait for the backup officers to arrive, yet he concedes the United States Supreme Court allows a detaining officer to "attend to . . . safety concerns," which includes "calling for backup out of concern for his safety." (Rodriguez v. United States (2015) ___ U.S. ___ [135 S.Ct. 1609, 1614, 1618].) The court stated "the government's officer safety interest stems from the mission of the stop itself. Traffic stops are 'especially fraught with danger to police officers' [citation], so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely." (Id. at p. ___ .) Defendant deems it even "more troubling" that Evans "ordered appellant out of his vehicle to complete sobriety tests," but it is firmly established that "the government's 'legitimate and weighty' interest in officer safety outweighs the 'de minimis' additional intrusion of requiring a driver, lawfully stopped, to exit the vehicle." (Id. at p.___ .) And we are at a loss to understand how Officer Evans could have conducted the field sobriety tests had defendant remained in his vehicle.
We conclude defendant's detention was not unduly prolonged.
The Romero Motion
Our Supreme Court has held that a court's failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) The court went on to explain just what this means in application:
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he 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." ' [Citations.] Second, a ' "decision will not be reversed [on appeal] 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.' " ' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.
"Because 'all discretionary authority is contextual' [citation], we cannot determine whether a trial court has acted irrationally or arbitrarily in refusing to strike a prior conviction allegation without considering the legal principles and policies that should have guided the court's actions. We therefore begin by examining the three strikes law.
" '[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders.' [Citation.] To achieve this end, 'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, the defendant should be treated as though he actually fell outside the Three Strikes scheme." ' [Citation.]
"Consistent with the language of and the legislative intent behind the three strikes law, we have established stringent standards that sentencing courts must follow in order to find such an exception. '[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.' [Citation.]
"Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.
"In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce . . . an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case. [Citation.]
"But '[i]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.] Where the record is silent [citation], or '[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' [citation]. 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. Of course, in such an extraordinary case—where the relevant factors . . . [citation] manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion." (Carmony, supra, 33 Cal.4th at pp. 376-378.)
This is what the trial court said in denying defendant's motion:
"[F]irst of all, you are convicted of your seventh DUI. . . . You were arrested for driving under the influence with a .17/.17 blood alcohol . . . . [¶] Your criminal history . . . you have five felony convictions and you have 18 total convictions. You've been sentenced to CDCR. . . . In 1993, you were convicted of the 245(a)(1) [the strike offense]. Let's talk about that. . . . [T]he facts don't get much worse in terms of violence and heinous behavior. You were convicted of 245(a) with great bodily injury. You completely went berserk on your mother, who ran out of money to buy you gas. You struck her in the head as she was getting out of the car. She fled into the house. You caught her, knocked her to the ground, hit her many times. You strangled her, beat her head on the floor, stood over her, put your foot on her throat, stood on her left arm. You violently separated her fingers, causing the webbing to tear. She spent six days in the hospital."
"When I look at that conviction, that is a terribly violent conviction. I then look at the remainder of your record of criminal conduct. . . .
"[Y]ou committed a felony burglary in 1983. You were convicted of 236 and a 10851. . . . That was '89. You were given execution of sentence suspended and you did complete probation, [albeit] unsuccessfully.
"In 1993 is when you were convicted of the offense related to your mother, That is the strike offense.
"Then in 2002 you picked up your third DUI. . . . You received execution of sentence suspended. You went through a drug program or two. You went to Drug Court. You were terminated from Drug Court and then sentenced to three years of state prison. . . . [T]hat's your second prison commitment. Then in 2002 you picked up DUI number four. Another DUI in 2002 for number five. You . . . were in prison for quite a period of that time. I believe you were paroled in 2008. Then in 2008 you picked up another DUI, that was number six where you were sent to prison for 2 years and 8 months. So you were discharged from parole in 2011. And you were placed on probation again 2/11/11 where you are still on probation for that.
"The bottom line is you have been in prison, on probation or parole since 1984, '83. . . . You have 13 misdemeanor convictions. You have three that are currently open and pending . . . . You have many, many parole violations . . . . The good thing is since the offense with your mother, you've not had violent behavior. You've had dangerous behavior in that you've committed a lot of DUIs, but you haven't committed violent behavior."
"[Y]ou have known about your drinking issues for 25 or 30 years. [¶] . . . Because you've been on probation, parole since 1983, and for all the reasons I've stated, I think it would be an abuse of discretion for me to dismiss your prior strike conviction based upon your 30-year history."
The court then selected the middle term of two years for the principal term of violating Vehicle Code section 23152, subdivision (a). This was doubled to four years for the strike. The same term was imposed for violating Vehicle Code section 23152, subdivision (b), but this term was stayed. The misdemeanor sentence for driving while his license was suspended (Veh. Code, § 14601.2) was to be served concurrently. Three prior felony convictions resulted in three additional years, for an aggregate sentence of seven years.
We cannot agree with defendant that denial of his Romero motion was an abuse of discretion. Not unnaturally, defendant points to the age of the strike prior, and summarizes: "Since the assault conviction, appellant's criminal history ha[s] been limited to nonviolent offenses, motivated by drug and alcohol abuse, which established that his criminality was due to his drug problems and not a desire to victimize other people." This is far too benign an interpretation.
The trial court made several highly pertinent, and related, observations. First, "[d]rug addiction, alcohol addiction, . . . can be a mitigating factor, but failure to do anything about it is [an] aggravating [factor]. In this case I quite frankly believe it is aggravating because you've been to numerous treatment programs." Also, the court noted that defendant had repeatedly ("probably six times") been given a " Watson advisement" to the effect that "if you are convicted of a further driving under the influence offense you could be charged with murder if someone was killed." Lastly, the court underscored the obvious conclusion: although defendant's "history is not violent . . . it certainly is dangerous" in that it continually threatened harm to others whenever he drank and drove.
The trial court's ruling occupies almost 10 pages of reporter's transcript. That length reflects the care and thoroughness of the court's reasoning. After examining the record, we conclude this is not that "extraordinary" situation where " ' "the sentencing decision was irrational or arbitrary." ' " (Carmony, supra, 33 Cal.4th at pp. 376, 377.)
The judgment of conviction is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.