Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA309888 Ann H. Egerton, Judge.
Marilee Marshall & Associates and Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
MOSK, J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant John Diggs (defendant) was arrested for and charged with possession of marijuana for sale. Appearing in propria persona, he filed a motion to suppress evidence that the trial court denied after hearing testimony from the investigating officer. Defendant subsequently pleaded nolo contendere to the charged crime.
On appeal, defendant contends that because the arresting officer lacked the requisite reasonable suspicion to detain him, the trial court should have granted his suppression motion and dismissed the charge against him for lack of evidence. We hold that defendant forfeited the issue of the validity of his initial detention by failing to raise it in the trial court and that, in any event, there is substantial evidence in the record to support a finding that the investigating officer had the requisite reasonable suspicion to detain defendant. The trial court therefore properly denied his motion to suppress.
Defendant and the prosecution disagree over various fines, penalties, assessments, and surcharges. Based on our recent decision in People v. McCoy (2007) 156 Cal.App.4th 1246, we also hold that the trial court’s minute order reflecting defendant’s sentence should be modified to provide that defendant is required to pay the fines, penalty assessments, and surcharges specified below.
FACTUAL BACKGROUND
At the hearing on defendant’s suppression motion, the prosecution called one witness, Los Angeles Police Officer Brian Frieson, who provided the following testimony about the detention and arrest of defendant. At the time of defendant’s arrest, Officer Frieson had been a police officer for two years. His training and experience in the detection of narcotics included over 100 narcotics-related arrests.
On the day of defendant’s arrest, Officer Frieson was working a “foot beat” in Central Division. The area around Fifth and Wall Streets within the Central Division is known for “heavy use and sale of marijuana” . . . . Officer Frieson was with his partner, Officer Garcia, when he observed a female Hispanic on the southeast corner of the intersection of Fifth and Wall Streets with a male Hispanic. Officer Frieson saw the male put something in the female’s bag. When the two suspects saw the officers, the female began walking toward the officers’ location.
Officer Frieson asked the female Hispanic if he could speak with her, and she said yes. When Officer Frieson asked her what the male Hispanic had placed in her bag, she opened it for inspection. Although Officer Frieson did not see any contraband in the female Hispanic’s bag, he noticed that she was trying to conceal in her hand a plastic bag containing a green leafy substance that resembled marijuana. Officers Frieson and Garcia detained the female Hispanic, and two other officers took her into custody. The female Hispanic told one of the two arresting officers that she had just purchased marijuana from defendant.
Based on that information, Officer Frieson contacted defendant and asked him if he was on parole. Defendant replied that he was. Officer Frieson then asked defendant if he had anything on his person that he should not have. Defendant replied that he did not have anything on him, except marijuana. After defendant admitted he possessed marijuana, Officer Frieson detained him for further investigation and found three bags of marijuana in his backpack, where the female Hispanic said the drugs would be found.
Officer Frieson admitted that he had not seen defendant selling marijuana to anyone and that he did not see defendant with the female Hispanic. He further admitted that the female Hispanic was arrested only for possession of marijuana, and then released from custody because she had valid identification.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an information charging defendant with one count of possession of marijuana for sale in violation of Health and Safety Code section 11359, a felony. As discussed in detail below, defendant represented himself and filed a motion to suppress evidence. After hearing testimony from Officer Frieson, the trial court denied the motion.
Defendant thereafter entered into a plea agreement pursuant to which he pleaded nolo contendere to the charged offense. The trial court accepted the plea, convicted defendant on one count of violating Health and Safety Code section 11359, and sentenced him as follows: imposition of sentence was suspended; defendant was placed on formal probation for three years; and defendant was to serve 140 days in the Los Angeles County jail, with credit for time served of 140 days. Defendant was ordered to pay a $200 restitution fine, the cost of probation fees, a crime laboratory drug analysis fee of $50 plus penalty assessment, a court security fee of $20, and a $200 probation revocation restitution fine which was stayed.
DISCUSSION
A. Standard of Review
“Our review of issues related to the suppression of evidence seized by the police is governed by federal constitutional standards. (Cal. Const., art. I, § 28, subd. (d); People v. Bradford (1997) 15 Cal.4th 1229, 1291 [65 Cal.Rptr.2d 145, 939 P.2d 259].)” (People v. Lenart (2004) 32 Cal.4th 1107, 1118.) “In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. (People v. Ayala (2000) 24 Cal.4th 243, 279 [99 Cal.Rptr.2d 532, 6 P.3d 193].) We review the court’s resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. (Ibid.)” (People v. Ramos (2004) 34 Cal.4th 494, 505.)
B. Suppression Motion
Defendant, in propria persona, filed a handwritten “motion to suppress evidence” that sought an order “suppressing statements illegally obtained either by use of lies, deceit or chicanery.” The motion referenced defendant’s Miranda rights and asserted that defendant “was never given one,” presumably meaning a Miranda warning. The motion did not specify the statement or other evidence that defendant sought to suppress. (See Pen. Code, § 1538.5, subd. (a)(2) [“The memorandum [in support of the motion to suppress] shall list the specific . . . evidence sought to be . . . suppressed”].)
Miranda v. Arizona (1966) 384 U.S. 436.
All further statutory references are to the Penal Code unless otherwise indicated.
At the hearing on defendant’s motion, the trial court assumed that the section 1538.5 motion was based on an “illegal stop” and therefore asked defendant, “Is that correct . . . ? You are alleging that they illegally stopped you; is that correct?” Defendant replied, “No. . . . I’m alleging that . . . [Officer Frieson] wrongly arrested me and charged me with the wrong charge.” After hearing Officer Frieson’s testimony as described above, the trial court asked defendant, “In other words you are not denying you had three bags [of marijuana]?” When defendant responded that he was not denying that he possessed marijuana, the trial court concluded, “You have admitted you were in possession of marijuana. Then the [section] 1538.5 motion is denied.” [¶] You just admitted probable cause.”
C. Forfeiture
The People argue that defendant forfeited the right to challenge the validity of Officer Frieson’s detention of him by failing to present that issue to the trial court. According to the People, defendant’s motion to suppress challenged Officer Frieson’s probable cause to arrest, not whether Officer Frieson had reasonable suspicion to detain him initially. Defendant counters that he was in propria persona and that his motion should therefore be broadly construed to include the validity of his initial detention.
“[A] motion to test the validity of a search or seizure must be raised in the superior court to preserve the point for review on appeal. (§ 1538.5, subd. (m); People v. Lilienthal (1978) 22 Cal.3d 891, 896 [150 Cal.Rptr. 910, 587 P.2d 706]; People v. Low (1983) 148 Cal.App.3d 89, 92 [196 Cal.Rptr. 18].) A motion made on the wrong ground in the superior court does not preserve the issue. (People v . Lopez (1978) 81 Cal.App.3d 103, 108 [146 Cal.Rptr. 165].) . . . Defendant, therefore, cannot now challenge the validity of the search since he failed to preserve the issue either by proper objection at trial or by pretrial motion. (People v. Lopez, supra, [81 Cal.App.3d] at p. 108; see People v. Easley, supra, 34 Cal.3d at p. 869.)” (People v. Miranda (1987) 44 Cal.3d 57, 80-81, overruled on other grounds by People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)
Defendant’s written motion to suppress appeared to be based on an alleged violation of his Miranda rights. But, at the hearing, he expressly denied that his motion was based on an illegal stop, and instead stated that it was based on a wrongful arrest. As a result, the trial court did not analyze Officer Frieson’s testimony as it related to the initial contact with and questioning of defendant. Therefore, defendant cannot credibly claim that the trial court erroneously determined an issue that was never presented to it. Defendant’s challenge to the validity of Officer Frieson’s initial contact and questioning has been forfeited.
Based on defendant’s description of the grounds for his motion at the hearing and the trial court’s ruling, it appears that the trial court concluded that defendant’s admission that he possessed three bags of marijuana constituted sufficient probable cause for arrest.
Defendant’s suggestion that his pro se status should be considered in determining the forfeiture issue is unavailing. “‘The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of “effective assistance of counsel.”’ (Faretta [v. California (1975)] 422 U.S. [806,] 834, fn. 46, 95 S.Ct. 2525.)” (People v. Carson (2005) 35 Cal.4th 1, 8.)
Defendant’s failure to identify in the trial court the detention issue he now seeks to litigate on appeal deprived that court of the opportunity of analyzing Officer Frieson’s testimony under the constitutional standard applicable to detentions, as opposed to the standard applicable to arrests. It also deprived the People of the opportunity to elicit testimony from Officer Frieson specifically relating to the reasons for the initial contact with and questioning of defendant. It would therefore be unfair to both the trial court and the People to allow defendant to raise the issue for the first time on appeal.
D. Substantial Evidence
Even if we were to consider defendant’s contention that Officer Frieson’s initial detention of him was unconstitutional, we would not reverse defendant’s conviction. There was substantial evidence to support the conclusion that Officer Frieson had the requisite reasonable suspicion to justify his detention and investigation of defendant.
“Under the cases, an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. (Ornelas v. United States (1996) 517 U.S. 690, 693 [134 L.Ed.2d 911, 116 S.Ct. 1657]; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 200 [101 Cal.Rptr. 837, 496 P.2d 1205]; People v. Miranda (1993) 17 Cal.App.4th 917, 926 [21 Cal.Rptr.2d 785]; see also Terry v. Ohio (1968) 392 U.S. 1, 22 [20 L.Ed.2d 889, 88 S.Ct. 1868]; In re Tony C. (1978) 21 Cal.3d 888, 892–894 [148 Cal.Rptr. 366, 582 P.2d 957].) 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.’ (Terry v. Ohio, supra, 392 U.S. at p. 19; see In re Tony C., supra, 21 Cal.3d at p. 892.) In making our determination, we examine ‘the totality of the circumstances’ in each case. (E.g., Alabama v. White (1990) 496 U.S. 325, 330 [110 L.Ed.2d 301, 110 S.Ct. 2412], U.S. v. Wheat (8th Cir. 2001) 278 F.3d 722, 726 (Wheat).)” (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083.)
“Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip. (E.g., Alabama v. White, supra, 496 U.S. at p. 330.) But to be reasonable, the officer’s suspicion must be supported by some specific, articulable facts that are ‘reasonably “consistent with criminal activity.”’ (In re Tony C., supra, 21 Cal.3d at p. 894.) The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ (Id. at p. 893.) But where a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances “in the proper exercise of the officer’s duties.” [Citation.]’ (Id. at p. 894.)” (People v. Wells, supra, 38 Cal.4th at p. 1083.)
Assuming that Officer Frieson’s initial contact with and questioning of defendant constituted a detention for Fourth Amendment purposes—which is questionable—he had an objectively verifiable factual basis for doing so. Among other things, Officer Frieson was aware that the female Hispanic in custody for possession of marijuana told the officers who arrested her that defendant had just sold her the marijuana. That information, which included specific advice that defendant had marijuana in his backpack, would have caused a reasonable police officer in Officer Frieson’s position to suspect that defendant was involved in criminal activity and to make inquiry into the matter in the proper exercise of his duties. Thus, Officer Frieson’s initial contact with and questioning of defendant was justified based upon the information available to him. Accordingly, the trial court properly denied defendant’s suppression motion.
E. Fines, Penalties, Assessments, and Surcharges
As set forth above, the trial court imposed the following fines, fees, and assessments: (i) a $200 restitution fine; (ii) a crime laboratory drug analysis fee (crime lab fee) of $50 plus penalty assessment; a court security fee of $20; and a probation revocation restitution fine of $200, which was stayed. Neither the reporter’s transcript nor the minute order reflecting defendant’s sentence disclose what penalty assessments, if any, were imposed on the $50 crime lab fee.
Pursuant to our recent decision in People v. McCoy, supra, 156 Cal.App.4th 1246, we requested that the parties to submit letter briefs on the disputed issue of the fees, assessments, and fines that should have been imposed by the trial court. After reviewing the parties’ letter briefs, we have determined that the penalty assessments, state surcharge, and state court construction penalty fee described below should be levied against the crime lab fee.
It appears that the $50 crime lab fee was subject to penalty assessments under section 1464, subdivision (a) and Government Code section 76000, subdivision (a). “Under subdivision (a) of Penal Code section 1464, the trial court ‘shall [levy] a state penalty, in an amount equal to ten dollars ($ 10) for every ten dollars ($ 10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .’ (Italics added.) Subdivision (a) of Government Code section 76000 then provides that ‘there shall be levied an additional penalty of seven dollars ($ 7) for every ten dollars ($ 10) or fraction thereof which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code , upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .’” (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1154.) Therefore, the penalty assessment on the crime lab fee under section 1464, subdivision (a) should have been $50 and the penalty assessment under Government Code section 76000, subdivision (a) should have been $35.
It also appears that the $50 crime lab fee was subject to a 20 percent surcharge under section 1465.7, subdivision (a). That section provides in pertinent part: “(a) A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464. [¶] (b) This surcharge shall be in addition to the state penalty assessed pursuant to Section 1464 of the Penal Code and may not be included in the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464.” (§ 1465.7, subd. (a) and subd. (b).) Accordingly, the state surcharge on the crime lab fee under section 1465.7, subdivision (a) should have been $10.
Finally, as explained in People v. McCoy, supra, 156 Cal.App.4th 1246, a state court construction penalty of $5 for every $10 collected on the $50 crime lab fee, i.e. $25, should have been assessed. As also explained in McCoy, however, that $25 court construction fee should have been reduced pursuant to Government Code section 70375, subdivision (b). (Id. at pp. 1252-1254.) That section “requires that the $5 court construction penalty be reduced by the amount the local board of supervisors directs be paid from the [Government Code] section 76000, subdivision (a) penalty assessment into the [Government Code] section 76100 local courthouse construction fund. As noted, the Los Angeles County Board of Supervisors has directed that $2 of the section 76000, subdivision (a) penalty assessment be paid into the section 76000 local courthouse construction fund. Therefore, in Los Angeles County, every convicted felon must pay on a Health and Safety Code section 11372.5, subdivision (a) laboratory fee a $3 state court construction penalty on every $10 of the fee, which is statutorily designated as a fine.” (Id. at p. 1254.) Here, because the Health and Safety Code section 11372.5, subdivision (a) laboratory fee is $ 50, the state court construction penalty must be reduced by $15 to $10.
DISPOSITION
The trial court’s minute order reflecting defendant’s sentence shall be corrected to reflect the imposition of (i) a $50 penalty assessment on the crime lab fee under section 1464, subdivision (a); (ii) a $35 penalty assessment on the crime lab fee under Government Code section 76000; (iii) a $10 state surcharge on the crime lab fee under section 1465.7, subdivision (a); and (iv) a $10 state construction penalty under Government Code section 70372, subdivision (a)(1), as reduced under Government Code section 70735, subdivision (b). In all other respects, the judgment of the trial court is affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.