Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC778854
Mihara, J.
Defendant Christopher Greco appeals from a judgment of conviction entered after he pleaded no contest to possession of psilocybin for sale (Health & Saf. Code, § 11378), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). The trial court suspended imposition of sentence and placed defendant on probation for three years on condition, among others, that he serve 180 days in jail with credit for time served. The trial court also imposed various fines and penalty assessments. On appeal, defendant contends that the trial court erred in denying his motions to suppress evidence and to withdraw his no contest plea. He also challenges the amount of the penalty assessments imposed by the trial court. We modify the judgment to reflect a reduction in the penalty assessments. As modified, the judgment is affirmed.
I. Statement of Facts
At approximately 5:45 p.m. on September 5, 2007, Officer Frank Proft was driving west on Foothill Drive in San Jose when he saw a woman sitting in an SUV that was parked facing east on Foothill Drive. Officer Proft then saw defendant walking down a hillside between two residential properties, which were located at 888 and 896 Foothill Drive. There was a “No Trespassing” sign on the hillside, and defendant was about 50 feet behind the sign.
Officer Proft then made a U-turn and parked at the curb in front of 896 Foothill Drive. Officer Proft decided to detain defendant, because he was on property that had been posted “No Trespassing” and because “it was unusual to see somebody up on that hill.” Based on past contacts Officer Proft also knew that residents of the area, including a woman who lived in a camper at 896 Foothill Drive, possibly used and sold drugs.
After Officer Proft parked his vehicle, defendant came “down the hill walking northbound. When he saw [Officer Proft], he immediately turned to his left, which would put him westbound, and he kind of hid behind a vehicle that was in the driveway” of 896 Foothill Drive. “It appeared that he didn’t want police contact, because he ducked behind the vehicle in front of 896.”
As Officer Proft exited his vehicle, he yelled to defendant, “ ‘Hey, come over here. I want to talk to you.’ ” Defendant looked at the officer “kind of bewildered,” and did nothing. Officer Proft called to him again, and defendant walked towards the patrol car. As defendant approached him, the officer saw that he had something in his hand. Officer Proft told defendant to put his hands on the hood of the patrol car. When he did not comply, Officer Proft called for a backup officer. Officer Proft then saw that it was a cell phone in defendant’s hand, and he told him to put it on the hood. Defendant, who appeared nervous and was shaking, complied and asked what he was being arrested for. Officer Proft told him that he was not under arrest.
Officer Proft told defendant that he had been walking in an area that was posted “No Trespassing.” Defendant responded that he had not seen the sign. The officer observed that defendant’s pupils were small, his heart was racing, he was sweating and talking rapidly, but “really not making a whole lot of sense.” Officer Proft believed that defendant was possibly under the influence of a stimulant. Based on his observations and his knowledge of the area, the officer concluded that defendant “was probably in the area to buy dope.” The officer asked defendant “to put his hands behind his head and to interlock his fingers,” because he feared for his safety based on defendant’s nervous demeanor and failure to follow commands. As Officer Proft pat searched defendant, he felt a cell phone and a hard, round, metal object in his pocket. He asked defendant what the object was, and defendant replied that he didn’t know. Officer Proft emptied defendant’s pockets and found cash, a cell phone, and a pipe. Based on its smell and the residue on it, the officer recognized it as a marijuana pipe.
Officer Proft handcuffed defendant, but he was not sure whether he was going to arrest him for being under the influence, cite him, or take no action. At this point, Ms. Campbell, the woman who had been sitting in the SUV, approached and asked the officer what he was doing. She also said that defendant was her friend and she had given him a ride to this location “in the last couple minutes.” The SUV was located 150 to 200 feet away.
Officer Proft asked Campbell if there was anything illegal in her car and if he could search her car. She replied, “No” to both questions. Officer Proft decided that he was going to at least cite defendant for being under the influence, so he told Campbell that he was going to search her car incident to defendant’s arrest. Since defendant appeared to be under the influence and was in possession of a marijuana pipe, the officer wanted to check whether he had more marijuana in the car.
Officer Proft searched the SUV and found a backpack on the right front passenger floorboard. He then searched the backpack and found a large bag that held several smaller bags of what appeared to be psilocybin and a smaller bag that contained what he believed was methamphetamine. There was also a scale and a large amount of cash in the backpack. Officer Proft then arrested both defendant and Campbell. Neither would claim ownership of the backpack.
II. Discussion
A. Motion to Suppress Evidence
Defendant contends that the trial court erred in denying his motion to suppress evidence. He maintains that the officer illegally detained him. Alternatively, he argues that the search of the vehicle was unlawful.
1. Standard of Review
“ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]’ ” (People v. Weaver (2001) 26 Cal.4th 876, 924, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.)
2. Detention
Defendant contends that his detention was illegal, and thus the trial court erred in failing to suppress the fruits of this detention.
The Fourth Amendment, made applicable to the states through the due process clause of the Fourteenth Amendment, protects the individual against unreasonable searches and seizures. (Mapp v. Ohio (1961) 367 U.S. 643, 643-660.) This protection also extends to brief investigatory stops that fall short of an arrest. (Terry v. Ohio (1968) 392 U.S. 1, 16-17.) “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.)
In the present case, Officer Proft saw defendant walking down a hillside between two residences at 888 and 896 Foothill Drive. Defendant was in the area covered by a “No Trespassing” sign. According to the officer, it was “unusual to see somebody up on that hill.” Based on past contacts, the officer also knew that residents of the area, including the woman who lived at 896 Foothill Drive, possibly used and sold drugs. The officer parked his vehicle. When defendant saw the officer, he “ducked behind the vehicle in front of 896.” Thus, defendant’s presence beyond the “No Trespassing” sign in an area known for drug use and sales coupled with his furtive behavior constituted specific, articulable facts causing Officer Proft to believe that criminal activity had occurred or was occurring, and that defendant was involved in this activity. Thus, Officer Proft’s detention of defendant was lawful.
Defendant argues that he could have been a homeowner or a guest of one of the homeowners. However, the “possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal, or illegal—to ‘enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer to charges.’ ” (In re Tony C. (1978) 21 Cal.3d 888, 894, quoting People v. Manis (1969) 268 Cal.App.2d 653, 665.)
Defendant also relies on People v. Perrusquia (2007) 150 Cal.App.4th 228 (Perrusquia). In Perrusquia, the defendant’s car was running and parked near the exit of a 7-Eleven store in a high-crime area. (Id. at p. 231.) Though several 7-Eleven stores had been robbed recently, it was not particularly late at night and the store was open. (Id. at p. 234.) When the defendant saw the officers, he turned off the engine, exited the car, and walked quickly to the store entrance. (Id. at p. 231.) The officers then detained the defendant, searched him, and found weapons and drugs. (Id. at p. 232.) The appellate court held the detention of the defendant was unlawful. (Id. at p. 234.) Perrusquia is factually distinguishable from the present case. In that case, the defendant was in the parking lot of an open 7-Eleven store while here defendant was in an area that had been posted “No Trespassing.” Moreover, as the Perrusquia concurrence clarified, there was no evidence that the defendant “repositioned himself in response to police presence.” (Id. at p. 235.) In contrast to Perrusquia, here defendant hid behind a vehicle when he saw the officer.
3. Search of the Vehicle
Defendant next contends that his Fourth Amendment rights were violated when the officer conducted a warrantless search of the vehicle without probable cause.
In Arizona v. Gant (2009) ___ U.S. ___ [129 S.Ct. 1710] (Gant), the United States Supreme Court recently clarified the parameters of a warrantless search of a vehicle incident to an arrest. In Gant, the police arrested the defendant because he had an outstanding arrest warrant for driving with a suspended license. (Id. at p. ___ [129 S.Ct. at p. 1715].) After the defendant was arrested, handcuffed, and sitting in the patrol car, the police searched his vehicle and found a gun and narcotics. (Ibid.) The high court held that the police may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” (Id. at p. ___ [129 S.Ct. at p. 1719].) Here, as in Gant, defendant was unable to access the interior of the vehicle. Defendant was handcuffed and the vehicle was parked 150 to 200 feet away.
However, Gant expressly reaffirmed the warrantless search of a vehicle when it is “ ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ” (Gant, supra, ___ U.S. at p. ___ [129 S.Ct. at p. 1719], quoting Thornton v. United States (2004) 541 U.S. 615, 632.) Thus, the court recognized that, in some cases, “the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.” (Ibid.) “In determining probable cause we must make a ‘practical, common-sense decision whether, given all the circumstances... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” (People v. Allen (2000) 78 Cal.App.4th 445, 450, quoting Illinois v. Gates (1983) 462 U.S. 213, 238.)
People v. Low (1983) 148 Cal.App.3d 89 presents facts similar to those before us. In Low, the defendant was driving in excess of the speed limit and in an erratic manner when the officers stopped him. (Id. at p. 91.) Based on his appearance and behavior, the officers concluded that the defendant was under the influence of heroin, arrested him, and searched his vehicle where they found a weapon and methamphetamine. (Id. at pp. 91 92.) The appellate court concluded that there was probable cause to believe the vehicle contained contraband. (Id. at p. 91.)
Here, Officer Proft reasonably concluded that defendant was under the influence of a stimulant, because he had small pupils, his heart was racing, and he was sweating and talking rapidly without making sense. During a search of defendant, the officer found cash, a cell phone, and a marijuana pipe. Defendant’s claim that he “had exited the vehicle an unknown period of time prior to arrest” was refuted by the officer’s testimony that Campbell told him that she had just given defendant a ride to the area “in the last couple minutes.” Based on the totality of the circumstances, there was a fair probability that the vehicle contained narcotics.
Relying on State v. Griffin (2004) 324 Mont. 143, defendant argues Officer Proft did not have probable cause to search the SUV. In Griffin, the officer arrested the defendant for driving with a suspended license. (Id. at p. 145.) During the search of the defendant, the officer found a glass pipe with white residue on it. (Ibid.) After the defendant refused the officer’s request to search the defendant’s vehicle, she applied for and received a search warrant that authorized the search of the vehicle for evidence of drug possession. (Ibid.) The search of the vehicle uncovered items that could be used to manufacture methamphetamine. (Ibid.) The Montana Supreme Court held that there was insufficient probable cause on which to issue a search warrant for the defendant’s vehicle, stating that “[j]ust because a person has a pipe in his pocket with untested white residue on it, does not mean his vehicle will contain evidence of a drug offense.” (Id. at p. 148.) Here, Officer Proft had additional circumstances indicating a fair probability that narcotics would be found in the SUV. Defendant was presently under the influence of narcotics and, unlike in Griffin, the pipe had the smell of marijuana attached to it.
In sum, we find that the officer had probable cause to search the SUV and the backpack. Accordingly, the trial court did not err in denying defendant’s motion to suppress evidence.
B. Motion to Withdraw a Plea
Defendant next contends that the trial court erred when it denied his motion to withdraw his no contest plea.
Defendant brought two motions to withdraw his no contest plea. On appeal, he challenges only the denial of the first motion.
1. Background
Defendant brought a motion to withdraw his plea in which he argued that he had entered his no contest plea as a result of mistake or ignorance. Defendant claimed that his plea was induced by defense counsel’s statement that his property would be returned to him after sentencing, and that he was never told that his property would be retained pending appeal. The property consisted of two cell phones, a backpack, a Valley Medical Center health card, $2,330 in cash, and some miscellaneous documents.
At the hearing on the motion, defendant testified that there were a “number of reasons” why he pleaded no contest to the charges, and that one of the reasons was that his counsel told him that he would be able to get his property back after he was sentenced. On cross-examination, there was the following colloquy between the prosecutor and defendant: “Q. Let me ask you this. Did you indicate to the judge when you entered your plea that, ‘I understand I’m getting 6 months in County jail, I understand I’m pleading to these three charges, and, Judge, also by the way, I also understand I get all of my property back as soon as I enter this plea’? Did you say that on the day of your plea? [¶] A. I believe so, yeah. [¶] Q. You said that to the judge? [¶] A. Did -- you’re asking did I say, ‘Do you plead basically no contest or guilty to these charges, and then you get your stuff back’? Is that what your question is? [¶] Q. Sort of. Let me rephrase. The plea process takes about 15 to 20 minutes. During the course of that time you’re asked several questions. One of those questions is, sir, ‘Have there been any other promises or inducements other than what we discussed in court here today that are causing you to enter into this plea agreement?’ And the answer to that is ‘Yes or no.’ If it’s yes, you would indicate to the judge, ‘Yes, it is because I’m also getting A, B, and C that you haven’t stated yet, Judge,’ and then the judge would acknowledge that. That will be on the record with the fine woman in front of us typing it down. [¶] Do you recall in court on the day you entered your plea saying to the judge, ‘I understand I’m getting 6 months, that’s part of the -- I understand I’m pleading guilty to these charges, the other one is getting dismissed, and, Judge, also, I have been promised I get my property back as soon as this is done.’ Did you say that to the judge? [¶] A. That sounds right. That sounds right. [¶] Q. Do you have any specific independent recollection of that having been said to the judge? [¶] I recall something along the lines of that. Word-for-word, I don’t recall.” On redirect examination, defendant testified that he did not have “a clear memory” of what was said at the change of plea hearing.
As set forth by defense counsel, the prosecutor and defense counsel entered into the following stipulation: “on the day of his plea, Mr. Greco before pleading guilty to these charges, or no contest to these charges, did ask me before whether he could get his non-contraband property returned to him. I took that question and asked the District Attorney on that day whether this would happen. She indicated to me that she didn’t see any reason why not. I then communicated to Mr. Greco that, yes, he should be getting his property back. [¶] During my conversations with Ms. Deng, I did not indicate to her that my client was intending to appeal the case, and when I talked to Mr. Greco, I didn’t advise him that his -- any pending appeal will preclude him from receiving his property back.”
The trial court denied the motion, stating “[b]ased on everything the Court has heard, I’m not going to find that good cause exists to demonstrate the defendant[s] exercise[ ] [of] free judgment was overcome on these circumstances.”
2. Legal Analysis
A defendant may move to withdraw his or her plea, at any time before judgment, on a showing of good cause. (Pen. Code, § 1018.) While mistake, ignorance, or any other factor overcoming the exercise of free judgment is good cause for the withdrawal of a guilty plea, such factors must be shown by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566.) “A plea may not be withdrawn simply because a defendant has changed his mind.” (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) We review the trial court’s denial of a motion to withdraw a plea under the abuse of discretion standard. (People v. Fairbank (1998) 16 Cal.4th 1223, 1254.) In making such a determination, we adopt the trial court’s factual findings if supported by substantial evidence. (Ibid.)
Here, there was substantial evidence to support the trial court’s finding that the erroneous information regarding the return of defendant’s property did not overcome his judgment when he pleaded no contest. The trial court was not required to find credible defendant’s testimony regarding the importance of this factor in his decision to enter his plea, particularly when defendant’s testimony at the hearing on the motion was not true. Defendant testified that he told the trial court prior to entering his plea that he had been promised the immediate return of his property. However, the transcript of the change of plea hearing refutes this testimony. Moreover, pursuant to the plea agreement, the prosecution agreed that it would dismiss one of the counts, not seek a state prison term, and consent to imposition of probation on condition, among others, that defendant serve no more than six months in jail. The trial court could reasonably conclude that the prospect of not receiving his property back immediately would not have caused defendant to reject the favorable terms of the plea agreement. If defendant had rejected the plea agreement, the return of his property would not have occurred until a much later date. Accordingly, the trial court did not abuse its discretion in denying defendant’s motion to withdraw his plea.
In our discussion of the statutory basis for each of the penalty assessments, we refer to the statutes in effect when defendant committed the charged offense.
Defendant also contends that the trial court erred in imposing excessive penalty assessments in the amount of $26. The People argue that the penalty assessments attached to the lab fee, drug program fee, and AIDS education fine should be reduced by $52.50, $105, and $24.50 respectively. We agree with the People’s position.
The trial court ordered defendant to pay, among other fines and assessments, a “$150 criminal laboratory analysis fee, plus penalty assessments,” a “$300 drug program fee, plus penalty assessments,” and an “AIDS education fine of $70, plus penalty assessments.” The minute order states that a penalty assessment of $397.50 is attached to the criminal laboratory analysis fee, a penalty assessment of $795 is attached to the drug program fee, and a penalty assessment of $185.50 is attached to the AIDS education fine.
Penal Code section 1464, subdivision (a)(1) provides that “there shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses, except parking offenses....”
Penal Code section 1465.7 provides in relevant 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 assessment 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.”
Government Code section 76000, subdivision (a)(1) requires each county to levy “an additional penalty of seven dollars ($7) for every ten dollars ($10),... upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses” except for the fees imposed under Penal Code sections 1464 and 1465.7. Subdivision (e) of Government Code section 76000 states: “The seven dollar ($7) additional penalty authorized by subdivision (a) shall be reduced in each county by the additional penalty amount assessed by the county for the local courthouse construction fund established by Section 71600 as of January 1, 1998, when the money in that fund is transferred to the state under Section 70402. The amount each county shall charge as an additional penalty under this section shall be as follows:... [¶] Santa Clara $5.50.” Thus, the Santa Clara County Board of Supervisors has determined that $5.50 of the penalty assessment of $7 on $10 of every fine is not to be used for courtroom construction. Accordingly, in Santa Clara County the penalty assessments under Government Code section 76000 are $5.50 for every $10.
Former Government Code section 76104.6, subdivision (a) provides: “For the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of one dollar for every ten dollars ($10)... in each county 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,...”
Former Government Code section 76104.7 provides in relevant part: “In addition to the penalty levied pursuant to Section 76104.6, there shall be levied an additional state-only penalty of one ($1) for every ten dollars ($10)... in each county, 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,...”
Former Government Code section 70372, subdivision (a) states in relevant part: “Except as otherwise provided in this article, there shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10)... upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses,...” Former Government Code section 70375 then reduced the amount of the penalty authorized in section 70372. It stated in relevant part: “In each county, the amount authorized by Section 70372 shall be reduced by the following: The amount collected for deposit into the local courthouse construction fund established pursuant to Section 76100.” (Former Gov. Code, § 70375, subd. (b)(1).) Because the Santa Clara County Board of Supervisors has determined that $1.50 of every $7 is distributed into the local construction fund (Gov. Code, § 76000, subd. (e)), the amount deducted from the state court construction penalty on the fines is $1.50. Thus, in Santa Clara County the penalty assessment under Former Government Code section 70372 is $3.50 for every $10.
Based on the formulas set forth in these statutes, the penalty assessments in the present case should have been $345 attached to the criminal laboratory fee, $690 attached to the drug program fee, and $161 attached to the AIDS education fine.
III. Disposition
The judgment is modified to reflect penalty assessments of $345 attached to the criminal laboratory fee, $690 attached to the drug program fee, and $161 attached to the AIDS education fine. In all other respects, the judgment is affirmed.
WE CONCUR: Premo, Acting P. J., Elia, J.