Opinion
B166120.
10-28-2003
THE PEOPLE, Plaintiff and Respondent, v. SYLVESTER FLOYD, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Yun K. Lee, Deputy Attorney General, for Plaintiff and Respondent.
Sylvester Floyd was convicted of one count of possession of a firearm by a felon, with findings that he had suffered three prior felony convictions, two of which qualified as strikes, and served two prior prison terms. He was sentenced to state prison for a period of 25 years to life. Floyd appeals, claiming his motion to suppress should have been granted and challenging his sentence as cruel and unusual. We affirm.
DISCUSSION
I.
Floyd contends he was unlawfully detained, and that the trial court should have granted his motion to suppress the firearm. We disagree.
A.
At the suppression hearing, Deputy Louis Ulloa testified that he and his partner, Deputy Kenneth Brown, were on patrol in a marked police car when, shortly after midnight, they saw Floyd walking on the sidewalk. They watched Floyd for a minute or two, and then Deputy Ulloa made eye contact with Floyd. Floyd "came to . . . an abrupt stop," looked at the officers, and at the same time put his right hand into the left side of his "heavy bulky jacket" that was "like a ski jacket," the sort of movement that occurs when someone is "trying to either retrieve or discard contraband . . . ." As the deputies drove past Floyd and made a U-turn, Floyd looked over his shoulder at the officers, then walked toward an area where there were bushes and weeds.
As the officers drove up to Floyd, he took his hand out of his jacket. The officers turned on their spotlight to illuminate the area, got out of their car, and Deputy Ulloa asked Floyd his name and whether he lived in the area. Floyd gave them his name and said he didnt live in the area. When Deputy Ulloa asked Floyd what he was doing there, he said he was visiting his girlfriend. The deputy — based on (1) the fact that they had seen Floyd put his hand in his jacket in response to seeing the officers, (2) his experience with similar movements when someone is trying to discard contraband or retrieve a weapon, (3) the fact that Floyd "was acting very nervous" and "stuttering," and (4) on the fact that they were in a high crime area at around 12:30 a.m. — then asked if he "could conduct a pat down search of him for weapons." Floyd said, "go ahead" and, as he spoke, turned around and put his hands behind his back without being told to do so.
When Deputy Ulloa patted down the left side of Floyds jacket area, over his chest, the deputy felt "a triangular shape" and "recognized it to be the butt of a handgun." The deputy asked Floyd what it was, but Floyd wouldnt answer, and "got a little more nervous. His hands were shaking." When Deputy Ulloa asked him why he was nervous, Floyd first said he didnt know, then said "he had just got off of parole." Beyond that, Floyd would not respond, and the deputy then unzipped Floyds partially zipped jacket, reached into his inside pocket, and retrieved a ".38 special Taurus."
B.
Floyd testified in his own behalf at the suppression hearing. He was walking on the sidewalk, smoking a cigarette, when he first saw the deputies in their patrol car. He did not stop and did not move his hand toward the inside of his jacket (because he "had no reason to"). The deputies then pulled up, got out of their car, and told Floyd "to stop right there as [he] was walking." Floyd stopped and started to turn toward the officers but Deputy Uoa told him to face back the way he had been walking. He complied, and (while Deputy Brown stood in front of Floyd) Deputy Ulloa stood behind him and told him to spread his legs and interlace his hands behind his head. Floyd complied, and the deputy then said he was going to pat him down (he did not ask for permission), and did so from the back. Deputy Brown then unzipped Floyds coat (which had been zipped all the way up) and Deputy Ulloa reached inside the jacket.
On cross-examination, Floyd admitted that he had the gun in his inside pocket and that he did not want the deputies to see it because he was "just off parole." He testified that he did not "recall" the deputy asking for permission to pat him down but that, had the deputy asked, Floyd would have said yes because he would "have had no other choice. Me saying no what was he going to do beat me up. Then after that probably." The officers never drew their guns or turned on their siren or patrol lights.
C.
The trial court found, "as far as judging the credibility of the witnesses," that the deputies saw Floyd put his hand inside his jacket, that the deputies did not tell Floyd to stop, that Floyd knew he was free to go but turned and stopped as though he was "waiting for the police," and that Floyd told the deputies to "go ahead" with the search. The court also found that, based on what they saw, and on their training, education and experience, the deputies were entitled to stop and ask a few questions, and that they were not required "to just ignore everything that they [saw] short of probable cause and drive away." The court found it was a consensual encounter, not a detention, and denied the motion to suppress.
D.
Floyd contends he was unreasonably detained, but this argument is no more than an improper request to us to reweigh the evidence, and that we cannot do. (People v. Lawler (1973) 9 Cal.3d 156, 160 [the trial courts factual findings at a motion to suppress are binding when supported by substantial evidence].) The trial court found the deputy more credible than Floyd and thus believed that Floyd stopped voluntarily and expressly consented to the patdown. The court rejected Floyds contention that a show of authority was obvious from the beginning. Since those findings are supported by the deputys testimony, the findings are binding on this appeal. (In re Manuel G. (1997) 16 Cal.4th 805, 821 [consensual encounters do not trigger Fourth Amendment scrutiny]; People v. Bouser (1994) 26 Cal.App.4th 1280, 1287-1288.)
Were we to view this as a detention, the result would be the same — because there were specific and articulable facts justifying the deputies belief that Floyd was carrying contraband. (People v. Daugherty (1996) 50 Cal.App.4th 275, 285; People v. Castellon (1999) 76 Cal.App.4th 1369, 1374.)
The motion was properly denied.
II.
Floyd contends his sentence of 25 years to life constitutes cruel and unusual punishment. We disagree.
Floyd (who was 39 at the time of his current offense) began his life of crime as a juvenile, when there were charges that he had taken a vehicle without the owners consent and committed an assault with a deadly weapon. His adult history began in 1983, when he was convicted of grand theft (with forcible rape and kidnapping charges dismissed) and placed on formal probation. That same year, he suffered a drug conviction and was again placed on probation. In 1985, he was convicted of willful child cruelty causing great bodily injury and sentenced to state prison for two years. He was paroled in 1986, violated in 1987 and again in 1988, and twice returned to prison. When he was released in 1989, he again violated his parole and was returned to prison.
In 1990, Floyd was convicted of misdemeanor domestic abuse and sentence was suspended. In 1992, he was convicted of arson of an inhabited structure and sentenced to prison for six years. He was released in 1996 but soon violated the conditions of his parole and was returned to prison. In 1998, he was convicted of false imprisonment (with kidnapping, robbery and other charges dismissed) and sentenced to prison for 32 months, notwithstanding that he then had a prior strike. He was discharged from parole in 2001, and committed this crime seven months later.
It is plain that shorter sentences have not made any impression, and that Floyd is incapable of following the law. It is also plain that his crimes are violent, and that his current offense, although not violent in itself, would most probably have resulted in violence had he not been apprehended before he had an opportunity to use the gun he was carrying. For these reasons, and based on the substantial body of law rejecting similar arguments, we conclude that his punishment is neither cruel nor unusual, and it does not offend fundamental notions of human dignity, shock the conscience, or violate the state or federal constitutions. (People v. Young (1992) 11 Cal.App.4th 1299, 1310-1311; People v. Cooper (1996) 43 Cal.App.4th 815, 827; Harmelin v. Michigan (1991) 501 U.S. 957, 998-999; Ewing v. California (2003) 123 S.Ct. 1179, 1185.)
DISPOSITION
The judgment is affirmed.
We concur: SPENCER, P.J., ORTEGA, J.