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People v. Hernandez

Court of Appeals of California, Fifth Appellate District.
Nov 20, 2003
F042760 (Cal. Ct. App. Nov. 20, 2003)

Opinion

F042760.

11-20-2003

THE PEOPLE, Plaintiff and Respondent, v. GEORGE GALLAGOS HERNANDEZ, Defendant and Appellant.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

STATEMENT OF THE CASE

On December 30, 2002, the Kern County District Attorney filed an information in superior court charging appellant George Gallagos Hernandez as follows: count I—manufacture and possession of a billy club (Pen. Code, § 12020, subd. (a)), with a prior serious felony conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and a prior prison term (§ 667.5, subd. (b)); count II—misdemeanor possession of narcotics paraphernalia (Health & Saf. Code, § 11364); count III—misdemeanor giving of a false identification to a police officer (§ 148.9, subd. (a)); and count IV—misdemeanor driving with a suspended license (Veh. Code, § 14601.2, subd. (a)).

On January 2, 2003, appellant was arraigned, pleaded not guilty, and denied the special allegations.

On January 28, 2003, the superior court denied appellants motion to suppress evidence seized during a vehicle stop (§ 1538.5).

On February 7, 2003, appellant withdrew his not guilty plea and entered into a plea agreement. Appellant pleaded nolo contendere to count I and admitted the prior serious felony allegation. In exchange, the prosecution agreed to dismissal of the remaining counts and prior prison term allegation and that appellant would be sentenced to no more than the lower term of 32 months in state prison.

On April 1, 2003, the court concluded there was no basis for appellants motion to withdraw his plea. Additionally, the court denied appellants motion to strike the prior felony conviction. On that same date, the court denied appellant probation, sentenced him to state prison for the doubled low term of 32 months, and awarded appellant 171 days of custody credits. The court imposed a $200 restitution fine (§ 1202.4, subd. (b)) and imposed and suspended a second such fine pending successful completion of parole (§ 1202.45).

On April 1, 2003, appellant filed a timely notice of appeal based on the sentence or other matters occurring after the plea as well as the denial of the motion to suppress.

STATEMENT OF FACTS

The following facts are taken from the report of the probation officer filed April 1, 2003:

"On December 8, 2002, at approximately 2:50 a.m., an officer observed a vehicle traveling at a slow rate of speed of approximately 15 miles per hour in a 35-mile-per-hour zone. The officer performed a record check on the vehicle license plate number and was informed the number came back to a GMC truck. The officer observed on the vehicles tailgate the name Chevrolet and believed the vehicle may have been stolen. A traffic stop was conducted. The officer made contact with the driver and observed a side-handle baton resting on his thigh on the drivers side.

"The driver was eventually identified as George Hernandez, the defendant. The defendant was ordered out of the vehicle and a pat-down search was conducted of his person. During the search, the defendant was asked if he had any weapons on his person and he replied, `Just a crank pipe. He informed the officer where the pipe was located and it was recovered. Officers noted the pipe appeared to have been used as it was blackened on one end and a white powdery residue was inside of the pipe. When the defendant was asked his name and date of birth, he stated it was Marcos Hernandez with a date of birth of September 29, 1979. As the defendant did not have a drivers license in his possession, a record check revealed there was a valid license for Marcos Hernandez. The defendant was placed under arrest and transported to the Delano City Jail.

"While being booked, the defendant asked if it was too late to tell the truth[.] He then informed the officer his name was George Hernandez and gave a true date of birth and address. A drivers license check revealed the defendant was on parole and had a suspended drivers license. When the defendant was asked why he had a baton in his vehicle, he stated, `My cousin left it in there and I put it out in the open so I wouldnt be hiding it. When asked why his cousin would have a baton in the vehicle, he said, ` Hes in the academy or a security guard."

DISCUSSION

On appeal appellant contends the superior court erroneously denied his suppression motion arguing the arresting officer did not have a rational suspicion that appellant was involved in criminal activity at the time of the vehicle stop. Therefore, the officer was not justified in stopping appellant and the trial court should have granted his motion to suppress.

He specifically argues:

"A police officer observed appellant driving his pick-up at a slow speed for a short distance and ran a check of the trucks license plate. The officer noticed the word ` Chevrolet embossed on the tailgate of the truck. When the check revealed that the license plate was registered to a GMC truck, the officer, suspecting that the pick-up truck was stolen, stopped it. As it was not reasonable for the officer to believe the truck was stolen simply because the tailgate had the word `Chevrolet embossed on it, the stop was made without probable cause. Therefore, the court erred in denying the suppression motion."

In ruling on a motion to suppress under section 1538.5, the superior court sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences. On review of its ruling by appeal or writ all presumptions are drawn in favor of the factual determinations of the superior court. The appellate court must uphold the superior courts express or implied findings if they are supported by substantial evidence. The reviewing court then independently reviews the superior courts determination that no Fourth Amendment violation occurred in conducting the search. If the search or seizure violated the Fourth Amendment, then the evidence seized as a result of that search must be excluded. (People v. Needham (2000) 79 Cal.App.4th 260, 265.)

Specifically, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. The trial courts resolution of each of these inquiries is, of course, subject to appellate review. The courts resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial evidence standard. The courts decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. Finally, the courts ruling on the third, which is a mixed fact-law question that is predominantly one of law, is also subject to independent review. (People v. Ayala (2000) 23 Cal.4th 225, 255.)

At the January 28, 2003, suppression hearing, Delano Police Corporal Boake Slape testified he had been employed by the City of Delano for approximately 15 years. At about 2:50 a.m. on December 8, 2002, Slape was on patrol duty in the 400 block of High Street. He was wearing a uniform and driving a marked patrol car. Slape noticed a full-size white pickup traveling northbound on High Street. The pickup had the brand name "Chevrolet" embossed on the rear tailgate. The truck was traveling eastbound on Woollomes Road and then turned northbound onto High Street. Slape drove onto the 400 block of High Street in a northbound direction and was positioned about 30 to 40 yards behind the truck. During the time the truck was traveling approximately 15 miles per hour in a 30 mile-per-hour zone. Slape paced the vehicle at this slower speed for approximately one block. While doing so, he ran a check of the vehicle license plate number because of "the time of the day and the vehicle going so slow." The record check came back and reflected the plate was registered to a GMC pickup truck.

In the meantime, the pickup truck came to a stop at a four-way-stop intersection and then proceeded through the intersection. Officer Slape testified, "Seeing I was advised it was a GMC pickup and I saw the tailgate said Chevrolet, it heightened my suspicions. Believing the vehicle might possibly be a stolen vehicle, I, of course, effected a traffic stop on it." As Officer Slape walked up to the driver, the appellant, he noticed a side-handle baton resting on the latters right thigh. The baton was 26 inches long. Slape waited for a back-up officer to arrive. Delano Police Officer Jeremy Hatchell arrived at the scene minutes later. Slape then directed appellant to get out of the vehicle. Slape also seized the baton. After detaining appellant, Slape conducted a check of the trucks vehicle identification number (VIN) and found it registered to a GMC vehicle.

Officer Hatchell advised appellant he was going to pat him down for weapons and asked if appellant had any other weapons. Appellant responded, "`I have a crack pipe." Hatchell asked where the pipe was and appellant said it was in his sock. The officer seized the pipe, which was blackened and contained white residue. Pursuant to questioning, appellant said his name was Marcos Hernandez and gave a date of birth. He also claimed the baton belonged to his cousin.

Defense counsel argued the vehicle stop was unlawful because Slapes belief that the pickup might be stolen was speculative and also because the speed of the truck was irrelevant. The trial court denied the suppression motion, stating:

"... The court does note that the officer first had his attention drawn to the vehicle because he was driving very, very slow. He did not testify that he felt that the vehicle was impeding traffic, which would be a grounds for a stop, but it was the reason why he first focused his attention on the vehicle.

"He did observe the tailgate indicating the vehicle was a Chevrolet, Counsel. And in running the plate number, it came back to a GMC. We know now that it was just a change in the tailgate, but the officer didnt know that at that time. Hes out there at that point seeing a plate coming back to a different vehicle from the one he thinks hes looking at. That is an articulable grounds for him to suspect theres criminal activity and was the basis for his stop in the testimony, I thought, which is perfectly lawful, and he should, in fact, stop the vehicle under the circumstances.

"In terms of his approach of the officer — of the vehicle, hes not required ... to just focus his attention on the vehicle and see if its, in fact, a GMC or a Chevy. He first has to be concerned with officer safety especially under the circumstances described.

"When he sees what, in the very end, was described as a PR 24 — I know what that is.... PR 24 ... is a weapon that only law enforcement can carry or people that have certain certificates.

"Once he sees that, he then has to be certain. He certainly has to detain and determine whether or not this is an individual whos lawfully possessing that weapon or is, in fact, possessing a weapon that is a felony to possess. Subsequent discovery of the crack pipe during that process is certainly legal.

"Based upon all of that, I will deny the motion to suppress at this time, and we are in recess at this point."

The Fourth Amendment prohibits unreasonable searches and seizures by the government and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Because the balance between the public interest and the individuals right to personal security tilts in favor of a standard less than probable cause, the Fourth Amendment is satisfied if the officers action is supported by reasonable suspicion to believe that criminal activity may be afoot. Reviewing courts must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. Although an officers reliance upon a mere hunch is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause and falls considerably short of satisfying a preponderance of the evidence standard. A determination that reasonable suspicion exists need not rule out the possibility of innocent conduct. (United States v. Arvizu (2002) 534 U.S. 266, 273-277.)

Every action taken by an officer in the course of making a traffic stop must be objectively reasonable and justified by the specific facts and circumstances confronting the officer. A police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that the motorist has violated the Vehicle Code or some other law. When an officer makes such a traffic stop, the stop may last only so long as is reasonably necessary to perform the duties incurred by virtue of the stop. Thus, an officer may order the driver out of the car, ask for and examine the motorists drivers license and car registration, discuss the violation and listen to any explanation, write a citation, and obtain the drivers promise to appear. Since minor traffic offenses do not reasonably suggest the presence of weapons, an officer may not search the driver or those areas of a car where a weapon may be hidden and accessible unless the objective circumstances furnish reasonable grounds to believe the driver is armed and/or dangerous and may gain immediate control of a weapon. A traffic stop can provide an officer with an opportunity to observe what is in plain view. However, a plain view observation is not itself an invasion of privacy, that is, a search. (People v. Miranda (1993) 17 Cal.App.4th 917, 927.)

In the instant case, appellant drove 15 miles per hour in a 30-mile-per-hour zone for more than a block in very light traffic. This occurred at 2:50 in the morning on High Street in Delano. The fact a driver proceeds at a speed slower than the speed limit under circumstances where he might normally proceed at the higher speed is a factor appearing to justify an officers investigation. (People v. Gibson (1963) 220 Cal.App.2d 15, 20.) Appellants exceedingly slow speed quite reasonably caught Officer Slapes attention and he ran a records check on appellants vehicle. The check revealed the license plate was registered to a GMC pickup truck. However, the vehicle that Slape observed bore a Chevrolet tailgate. Appellants slow speed, the light traffic, the early morning hour, and the non-matching tailgate—when considered together—gave rise to a particularized and objective basis for Slapes belief that appellant was driving a stolen vehicle.

Upon stopping the vehicle, Slape observed a PR 24 baton in plain view on appellants thigh. Generally speaking, section 12020, subdivision (a)(1)—a provision of the Dangerous Weapons Control Law—proscribes the possession of batons and billys. Section 12002, subdivision (a), a companion statute, creates an exception when such items are carried by police officers, special police officers, peace officers, or law enforcement officers. (People v. Mercer (1995) 42 Cal.App.4th Supp. 1, 6.) When Officer Slape observed the baton on appellants thigh, he had reasonable suspicion to prolong his detention to determine if appellants possession of the baton was lawful. (See generally People v. Suennen (1980) 114 Cal.App.3d 192, 200-201.) When circumstances demand immediate investigation by the police, the most useful tool for such investigation is general on-the-scene questioning. Such questioning is designed to bring out the persons explanation or lack of explanation of the circumstances which aroused the suspicion of the police and enable the police to quickly determine whether they should allow the suspect to go about his or her business or hold the suspect to answer. (People v. Warren (1984) 152 Cal.App.3d 991, 996-997.)

A review of the totality of the circumstances reveals that Officer Slape had a particularized and objective basis for suspecting legal wrongdoing while he was on early-morning patrol on December 8, 2002. Officer Slape properly initiated the stop of appellants vehicle and the trial court properly denied appellants motion to suppress.

DISPOSITION

The judgment is affirmed. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.


Summaries of

People v. Hernandez

Court of Appeals of California, Fifth Appellate District.
Nov 20, 2003
F042760 (Cal. Ct. App. Nov. 20, 2003)
Case details for

People v. Hernandez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GEORGE GALLAGOS HERNANDEZ…

Court:Court of Appeals of California, Fifth Appellate District.

Date published: Nov 20, 2003

Citations

F042760 (Cal. Ct. App. Nov. 20, 2003)