Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. BB049070
RUSHING, P.J.
Defendant David Kershaw Fickes returns to this court following our reversal of his conviction for first-degree burglary and other charges based on the prosecution’s improper joinder of two cases for trial. Upon receipt of the case following this court’s reversal, the prosecution severed the cases, dismissed the lesser peeking charges, and proceeded again with the first-degree burglary charge. Following a motion to suppress that was denied, defendant pleaded guilty to the charges and admitted the prior allegation.
Defendant returns to this court on appeal following denial of his motion to suppress and guilty plea. In this second appeal, defendant asserts the trial court erred by: (1) denying his motion to suppress; (2) failing to grant his request to renew his motion to suppress based on new evidence; (3) improperly using his prior conviction in aggravation and as a separately sentenced enhancement; and (4) ordering defendant to pay attorney fees without a hearing to determine is ability to pay.
Statement of the Facts and Case
The following facts are taken from the court’s unpublished opinion in People v. Fickes (Sept. 1, 2004, H024898) [nonpub. opn.].
On September 26, 1999, around 2:00 a.m., the victim was asleep in her ground-level apartment located in Palo Alto, when she awoke to a “sudden burst of noise” at her bedroom window. Believing someone was trying to come in through the window, the victim called 911. As she was calling, the person outside moved to the bathroom window and began “banging and shaking” the window.
Two police officers from the Palo Alto Police Department, Officers Healy and Hollenbeck responded to the 911 call. Healy arrived within two minutes of the call, and parked at the corner of Williams Street and California, and walked on foot to the victim’s residence located on Williams Street. As he was approaching the apartment, the officer saw a person getting onto a bicycle approximately 150 feet away. Officer Healy radioed Officer Hollenbeck, who intercepted the bicyclist at the intersection of College and Williams. Officer Hollenbeck stopped and arrested the bicyclist, identified as defendant, for prowling. Defendant responded that he was riding his bike in the neighborhood when his brakes lost a part, and he was looking for it. Defendant then agreed to take Officer Hollenbeck to the location where he had lost the part. Defendant walked Officer Hollenbeck to an area of the sidewalk north of the victim’s driveway.
Officer Hollenbeck testified that he searched the area with a flashlight, and could not find any bicycle part. He also stated that he checked the brakes on defendant’s bicycle, and could not find anything wrong with them. Meanwhile, Officer Healy checked the windows of the victim’s apartment, and found the screen had been pulled a couple of inches from the bedroom window.
Healy testified that at the time he was inspecting the victim’s windows, he saw wet footprints on the victim’s driveway, facing the window. Officer Healy did not take photographs of the footprints, and testified that as he looked at the footprints, “they were literally evaporating before [his] eyes.” Later that evening, Officer Healy took defendant’s shoe back to the victim’s home. Officer Healy wet the bottom of the shoe, then stepped the shoe to make a print on the driveway. Officer Healy believed the footprints matched those he saw that evaporated earlier in the evening.
Officer Healy testified that in addition to checking the footprints, he also checked defendant’s bicycle brakes. He had many years of experience with bicycles, and did his own work on the bicycles he owned. Officer Healy stated that he tested the brakes of defendant’s bicycle, and they appeared to have no problem.
Defendant was arrested for burglary of the victim’s home. Incident to the arrest, defendant consented to a search of his home. Police found a store discount card that did not belong to him. No charges were filed at the time, and defendant was released within hours of the arrest.
On December 22, 2000, the People filed an information charging defendant with first- degree burglary (Pen. Code, § 459, 460, subd. (a) [count 1]); and buying or receiving stolen property (Pen. Code, § 496, subd. (a) [count 2]), each occurring on September 26, 1999; annoying a child (Pen. Code, § 647.6, subd. (a) [count 3]); and peeking (Pen. Code, § 647, subd. (i) [count 4]), each occurring on May 28, 2000. The information also alleged that defendant had suffered one previous serious felony conviction and two prior “strike” convictions (Pen. Code, §§ 667, subds. (a), (b)-(i), 1170.12, 1192.7).
Prior to trial, defendant moved to sever the September 1999 counts from the May 2000 counts. The court denied defendant’s motion.
Defendant admitted the prior allegations before trial, and the jury convicted him of first-degree burglary (count 1), and misdemeanor peeking (count 4). The jury acquitted defendant of counts 2 and 3.
The trial court sentenced defendant to state prison for 30 years to life. Defendant appealed to this court, which reversed the judgment on the ground that the two cases were improperly joined. The opinion states: “the two sets of crimes were not properly joined in the first instance, because they do not meet the requirements of Penal Code section 954. Moreover, defendant suffered substantial prejudice as a result of the improper joinder, affecting his constitutional rights to due process and a fair trial.” (People v. Fickes, supra, H024898.) This court remanded the matter and directed the trial court to sever the September 1999 burglary charge from the May 2000 misdemeanor peeking charge.
The two charges were severed, and on the People’s motion, the May 2000 misdemeanor case was dismissed in the “interest of justice.” The 1999 burglary charge remained.
Defendant received newly appointed defense counsel, who immediately filed a motion to suppress evidence pursuant to Penal Code section 1538.5 on the ground that there was no probable cause to arrest defendant for the charge. The court denied the motion.
During the course of pretrial motions in the case, defense counsel discovered that the motion to suppress evidence that was brought previously in the case was based on incomplete evidence. On November 5, 2005, counsel moved to reopen the suppression motion hearing to introduce this evidence and renew the motion to suppress. The court held a limited hearing and denied the request to renew the suppression motion.
Two days into trial, defendant moved to withdraw his plea, and the prosecution immediately objected. The prosecution stated that “the reason he’s willing to do this is . . . the best hope he has of getting reduced punishment is by entering a plea, and it appears to me from the papers that that’s what the motive is here . . . .” Over the prosecution’s objection, the trial court accepted defendant’s plea of guilty and admission of the prior allegations.
On May 5, 2006, the trial court struck one of defendant’s prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court imposed the upper term of six years on the burglary count, doubled to 12 because of defendant’s prior strike conviction. The court also enhanced defendant’s sentence by five years pursuant to Penal Code section 667, subdivision (a)(1), making the total term 17 years in state prison.
Discussion
On appeal defendant makes numerous claims regarding his motion to suppress and his sentencing. Each issue is addressed separately below.
Denial of Suppression Motion
Defendant asserts the trial court erred in denying his suppression motion, because the officer did not have probable cause to arrest him for prowling or a vehicle code violation.
Factual Background
At the suppression hearing in May 27, 2005, Officer Healy of the Palo Alto Police Department testified that on September 26, 1999, at 2:06 a.m., he received a report of a prowling or burglary in progress at 2282 Williams Street in Palo Alto. About two minutes after hearing the report, Healy arrived at the corner of Williams Street and California Avenue. Healy parked his car, walked northbound on the west side of Williams Street, and immediately saw a man with a bicycle standing near the address where the prowling was reported. Healy testified that the man “mounted the bicycle and started to ride down the sidewalk northbound . . . .”
Agent Bruce Hollenbeck of the Palo Alto Police Department also testified at the hearing, and stated that he received a report of a prowler or attempted break-in at a residence on Williams Street in Palo Alto. Agent Hollenbeck received a radio communication that Officer Healy was en route to the house, so Hollenbeck went to the corner of College Avenue and Williams Street to “lock down that block.” When Hollenbeck got to the corner of College and Williams, he received a radio communication from Healy that there was a bicyclist riding northbound on Williams. Hollenbeck got out of his car and called out to the bicyclist to stop, get off of his bike and sit on the curb. Hollenbeck immediately recognized the bicyclist as defendant Fickes who he knew has previously been arrested for first degree burglary. Hollenbeck handcuffed defendant.
The trial court denied defendant’s motion to suppress on the ground that Hollenbeck had probable cause to arrest defendant for prowling and for riding his bicycle on the wrong side of the road in violation of Vehicle Code section 21650.1.
A peace officer may also arrest a person without a warrant if the officer has probable cause to believe that the person has committed a public offense in the officer’s presence, or if “[t]he officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed.” (Pen. Code, § 836, subd. (a)(3).) “Cause to arrest exists when facts known to an arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime.” (People v. Price (1991) 1 Cal.4th 324, 410.)
Here, the evidence presented at the motion supports the trial court’s finding that the officer had probable cause to arrest defendant for at a minimum, riding his bicycle on the wrong side of the street in violation of Vehicle Code section 21650.1. Specifically, Officer Healy testified that he saw defendant get onto his bicycle on the west side of Williams and begin riding in a northbound direction. As such, although Officer Healy never testified that he considered arresting defendant for riding the wrong way on his bicycle, he did actually observe defendant commit a Vehicle Code violation. Moreover, by radioing Hollenbeck and directing him to intercept defendant, Healy provided sufficient information to support defendant’s arrest for the violation.
In addition to the Vehicle Code violation as a basis for defendant’s arrest, there was also evidence to support a conclusion that defendant was guilty of the crime of prowling. The evidence at the motion shows that defendant was found by officers “within a few minutes of the 911 call alone around 2 a.m. a few houses from the call . . . .” Hollenbeck testified that upon seeing defendant, he recognized him as a known prowler. When an officer has knowledge of a person’s criminal history, it “can be used, in connection with other information, to support a finding or probable cause to arrest.” (People v. Martin (1973) 9 Cal.3d 687, 692, fn. 5.)
Here Hollenbeck’s knowledge of defendant’s history as a prowler, coupled with his discovery in close proximity both in time and location with the reporting house, supported a finding of probable cause to arrest. The trial court did not err in denying defendant’s motion to suppress.
Denial of Defendant’s Request to Reopen the Motion to Suppress
Defendant asserts the trial court erred when it refused to allow him to renew his motion to suppress. Specifically, defendant argues, “because new evidence had surfaced which undermined the testimony of Officer Healy and Agent Hollenbeck, and because defense counsel could not have discovered the evidence any earlier, the trial court erred in refusing to allow the renewed motion to suppress.” (Emphasis omitted.)
Defendant based his request to reopen the motion to suppress on new evidence related to the computer assisted dispatch (C.A.D.) report connected to the arrest.
During the original motion to suppress, Healy and Hollenbeck testified about the events prior to the arrest, and according to both of them, Healy was the first to arrive on the scene at 2:07 a.m. Healy parked his car, walked down the street and saw the bicyclist. Hollenbeck arrived after Healy, around 2:08 or 2:10 a.m. at the end of the block. Healy saw the bicyclist and radioed Hollenbeck the bicyclist was riding toward him, and Hollenbeck detained the bicyclist immediately.
Healy and Hollenbeck’s testimony was consistent with the original C.A..D. printout that was provided to defense counsel in February 2005, and was relied upon heavily by the prosecution during the motion.
However, in October 2005, defense counsel obtained a new C.A.D. printout of the events prior to the arrest that contained different information. According to the new printout, Healy did not arrive first at 2:07 a.m.; instead Hollenbeck arrived first at 2:08 and Healy arrived after him at 2:09. The second printout showed that Healy arrived 35 seconds after Hollenbeck, not before him.
Defense counsel argued to the trial court that the new printout was significant new evidence, and necessitated a reopening of the motion to suppress. Specifically, counsel stated: “the inevitable interpretation is that [Healy] cannot have seen the bicyclist when he said he saw him, radioed the information to Hollenbeck and have him stop him. [¶] . . . [¶] [H]e couldn’t have seen that; he couldn’t have seen it, because we know that according to Hollenbeck, he detained [defendant] immediately, and according to the C.A.D. printout, Healy can’t have seen, he’s yet to arrive, so this calls into the question the entire issue as to probable case to arrest for prowling.” Counsel continued, “a significant factor of what the officer believed was probable cause and what I inferred [the judge who heard the motion] felt was probable cause was the close proximity in time, place and location of where Officer Healy allegedly had seen [defendant].”
Defense counsel argued to the trial court that the information in the new C.A.D. report that was inconsistent with the original report was “completely and utterly beyond the control of the defense, and perhaps in fairness to the prosecution as well, because certainly the defense, and I assume the prosecution didn’t even know of the existence of the latter C.A.D., and at that point there’s no was with any kind of superhuman diligence which I think I displayed throughout this case, no one could or should have learned of the existence of this C.A.D . . . .”
The prosecution agreed with the defense that the matter should be reopened, and stated that they “didn’t have any reason to believe that there was different information regarding the C.A.D.’s . . . .”
In response to the presentation of the new evidence as a basis for a reopened motion, the trial court ordered the matter be set for a limited hearing to consider the testimony of Healy and a representative from C.A.D. At the limited hearing, the trial court heard from Communications Manager Charles Cullen from the Palo Alto Police Department who testified about the October 17 C.A.D. report. Comparing the two printouts, Cullen testified that he had not seen “this kind of difference before in C.A.D.’s . . . .” Healy also testified at the hearing, and maintained that he arrived at the scene a minute prior to Hollenbeck.
At the conclusion of the limited hearing, defense counsel requested a renewed suppression motion based on the new evidence of the discrepancies in the C.A.D. printouts. The trial court denied the request finding no new evidence upon which to renew the motion, and that “all of the information was available to the defense at the time, in fact, the defense alluded to it in various places during the course of their cross examination of Officer Healy, in fact, argued at the end or conclusion of the motion to suppress that he had to be there first and so forth.”
Penal Code section 1538.5, subdivision (h) provides authority for a renewed motion based upon grounds either unavailable or unknown to defendant at the time his prior motion was denied. “[I]f there occurred an intervening change in the applicable law or the discovery of new evidence in support of suppression, the trial court could entertain a new motion based upon such grounds.” (People v. Superior Court (1971) 4 Cal.3d 605, 611.)
Here, the trial court held a limited hearing to review the evidence offered by the defense and determined that it was not new, and did not require a renewed motion to suppress. In doing so, the court considered not only the evidence from the communications manager including the second C.A.D. printout, but also heard from Officer Healy again on when he arrived at the scene. Moreover, in considering the evidence at the limited hearing, the court also evaluated the evidence that was previously presented at the original motion, noting that the defense argued extensively at the original hearing that Healy could not have arrived before Hollenbeck. The court’s evaluation of all of the evidence was proper here, and its evaluation that the new C.A.D. printout did not support a renewed motion to suppress under Penal Code section 1538.5, subdivision (h) was correct.
While there is no dispute that the two printouts were different, the difference was not such that a renewed motion to suppress was required. Indeed, the trial court determined as much when it specifically found that the defense had ample time to cross examine Healy at the original three day hearing about his arrival time and observations, and argued that point to the court. The trial court properly found that there was no new evidence to support a renewed motion to suppress.
Sentencing Error-Dual Use
Defendant asserts the trial court erred in relying on defendant’s prior prison term to impose the upper term of six years on the burglary count, because the court also used the prior conviction to enhance his sentence an additional five years.
Here, the trial court used two factors in deciding to order the aggravating term for defendant: “[d]efendant served a prior prison term” for burglary and “[d]efendant was aware that alcohol was a disinhibitor; he had educated himself regarding the risk it imposed on his behavior, yet drinking alcoholic beverages the evening that precipitated the instant offense [and] concurrently, he was aware of his diagnosed fetish from 1993, yet still imbibed in alcoholic beverages increasing the risk of reoffending, which he did in this case.”
Weighing these factors against factors in mitigation, the court imposed the aggravated term of six years on the burglary count, and enhanced the sentence by five years pursuant to Penal Code section 667, subdivision (a)(1). Defendant asserts this was error, because the court used the same burglary conviction to order the aggravated term, and to enhance his sentence.
Penal Code section 1170, subdivision (b) states, in relevant part: “[t]he court may not impose an upper term by using the fact of any enhancement upon which the sentence is imposed under any provision of law.” Moreover, California Rules of Court, rule 4.420, subdivision (c), states: “[t]o comply with section 1170, [subdivision] (b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so. . . .” The Advisory Committee comment on rule 4.420, subdivision (c), states: “[t]he rule makes it clear that a fact charged and found as an enhancement may, in the alternative, be used in aggravation.”
The law clearly prohibits the dual use of a prior conviction to both enhance a sentence, and to support the imposition of the aggravated term as occurred in this case. The court had the option of using the prior conviction either as a circumstance in aggravation, or as a separately sentenced enhancement, but not both.
At the outset, it must be noted that defendant did not object to the sentencing in the trial court. As a result, defendant’s claims of error are waived on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353.) In order to overcome waiver, defendant asserts his counsel was ineffective, and had no tactical reason for failing to object in the trial court.
“To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” ’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 569; see Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Pope (1979) 23 Cal.3d 412, 426.)
Here, the record does not demonstrate the reason for defense counsel’s failure to object to the trial court’s dual use. By our estimation, there can be no satisfactory explanation for the omission.
Moreover, based on the sentencing overall, we find a reasonable probability that had defense counsel objected, the outcome would have been different. Here, the court relied heavily on defendant’s prior conviction in aggravating his sentence. Indeed, the only other reason given for imposing an aggravated sentence was the fact that defendant chose to drink alcohol on the date of the incident knowing that alcohol affects his self-control, a reason that does not qualify as a circumstance in aggravation under the California Rules of Court. (See Cal. Rules of Court, rule 4.421.)
The court’s improper dual use of defendant’s prior conviction in this case resulted in defendant receiving at a minimum four more years in state prison than was appropriate under the Rules of Court. As such, defense counsel’s failure to object to the court’s improper dual use of his prior conviction clearly prejudiced defendant. The matter must be remanded for resentencing.
This difference is calculated by the fact that defendant received the aggravated term of six years, doubled to 12 because of a strike conviction, and five years for the enhancement for a total of 17 years. By sentencing defendant to five years on the enhancement, the court should have sentenced defendant to either the midterm of four years, doubled to eight for a total of 13, or the mitigated term of two, doubled to four for a total of nine.
Because we remand the matter to the trial court for resentencing, we do not reach the issue raised by defendant regarding Blakely sentencing error.
Order to Pay Attorney Fees
Defendant asserts the order that he pay $7,500 in attorney fees should be stricken, because the trial court did not make findings as to whether he had the ability to pay such fees and lacked substantial evidence to impose the reimbursement requirement.
Penal Code section 987.8 outlines criteria the court may use in evaluating a defendant’s ability to pay for the services of court-appointed counsel, and includes the defendant’s current, as well as future financial position. Here, the court did not hold a hearing to determine whether defendant had the ability to pay the fees ordered. The Attorney General concedes that this omission requires the order for fees be stricken and the matter remanded to the trial court for a hearing.
Disposition
The judgment is reversed. The matter is remanded for resentencing. With regard to the issue of attorney fees, the trial court in its discretion may order a hearing on defendant’s ability to pay.
WE CONCUR: PREMO, J., ELIA, J.