Opinion
C085976
01-28-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID DALE HUTT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CF01413)
A jury found defendant David Dale Hutt guilty of the unlawful possession of ammunition (Pen. Code, § 30305, subd. (a)(1)) and possession of a firearm by a felon (§ 29800, subd. (a)(1)). A jury also found true allegations that defendant previously served two prison terms. (§ 667.5, subd. (b).) The trial court sentenced defendant to an aggregate term of five years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court prejudicially erred in denying his motion to suppress evidence. We conclude there was no error.
In supplemental briefing, defendant contends the one-year sentence enhancements imposed on him pursuant to section 667.5, subdivision (b) (hereafter 667.5(b) enhancement), must be stricken because of recently adopted legislation. We agree and modify the judgment accordingly.
BACKGROUND
Around 9:00 in the morning on March 26, 2017, Sheriff's Deputies King and Dickerson were on duty, in full uniform, and driving a marked car. King saw defendant in the middle of the road, on his bicycle, talking to other people who were "pulled over" on the side of the road. The deputies did not activate their lights, but stopped the patrol car near a residence.
Dickerson approached the nearby residence to speak with people at the residence. King approached defendant, who remained on his bicycle with both feet on the ground, in the middle of the road. There were no cars on the road. King asked defendant, "how's it going?" Defendant replied, "fine." King remembered defendant said something about talking to his buddies about work.
King suggested they move out of the road; defendant agreed. King did not handcuff defendant, nor did he draw his firearm. He asked defendant "if he had anything illegal or anything [he] should be concerned about on his person." Defendant "basically" said "no." King "probed him a little more, . . . . Come on. If you got anything illegal on you, let's just deal with it out here. It's probably not that big of a deal." King did not remember defendant's exact response but remembered defendant said he did not have anything illegal on him and told King to "go ahead and search."
King began to search defendant and defendant admitted to having a flare gun in his pocket. King removed the flare gun. The gun was modified to be a "home made pistol-type handgun" loaded with a shotgun shell. King also found three rounds of shotgun ammunition in another of defendant's pockets. King learned defendant was a felon and arrested him.
The People charged defendant with illegal possession of ammunition (§ 30305, subd. (a)(1)) and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The People also alleged defendant served two prior prison terms, as defined in section 667.5, subdivision (b). Defendant filed a motion to suppress evidence. The People opposed the motion, and the motion was heard at the preliminary hearing. The court denied defendant's motion.
Defendant renewed his motion at trial; the trial court denied the renewed motion as well. A jury subsequently found defendant guilty as charged and found true the enhancement allegations. The trial court sentenced defendant to an aggregate term of five years in state prison, including two 667(b) enhancements.
DISCUSSION
I
Motion to Suppress
Defendant contends he was "detained and unconstitutionally searched without a warrant." We conclude the encounter was consensual and not a detention. A. Standard of Review
In reviewing the denial of a motion to suppress, we must accept all facts in support of the ruling, including all reasonable inferences and deductions, if supported by substantial evidence. (People v. Miranda (1993) 17 Cal.App.4th 917, 922.) B. Legal Principles
A police officer may approach an individual in a public place and ask questions without implicating the Fourth Amendment. "The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty, does a seizure occur." (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
There is no bright-line rule for determining if an encounter is consensual. (Ohio v. Robinette (1996) 519 U.S. 33, 39 [136 L.Ed.2d 347, 354].) "[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." (Florida v. Bostick (1991) 501 U.S. 429, 439 [115 L.Ed.2d 389, 401-402].) Whether a person would have believed he or she was free to leave is to be evaluated in light of the totality of the circumstances, rather than emphasizing particular details of that conduct in isolation. (Michigan v. Chesternut (1988) 486 U.S. 567, 573-574 [100 L.Ed.2d 565, 571-572].)
Factors that might indicate an unlawful detention has taken place include: (1) the presence of several police officers; (2) an officer's display of a weapon; (3) some physical touching of the person; (4) the use of language or a tone of voice indicating compliance with the officer's request might be compelled. (United States v. Mendenhall (1980) 446 U.S. 544, 554-555 [64 L.Ed.2d 497, 509] (Mendenhall).) "The officer's uncommunicated state of mind and the individual citizen's subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred." (In re Manuel G., supra, 16 Cal.4th at p. 821; see also Mendenhall, at p. 554 .) C. Analysis
The totality of circumstances surrounding defendant's arrest reveals the encounter was consensual. King arrived with only one other officer, and only King approached defendant. (Mendenhall, supra, 446 U.S. at p. 554 .) Neither deputy activated the siren or lights on their patrol car, King did not display his weapon, he did not handcuff defendant, and there was no evidence he touched defendant. There also was no evidence his tone of voice or language indicated compliance was required. (Ibid.; see also People v. Brown (2015) 61 Cal.4th 968, 978 [activating sirens or lights can amount to a show of authority].) And prior to defendant giving his consent to a search, the encounter was brief.
We conclude the encounter was consensual and not a detention.
II
Senate Bill No. 136
In his supplemental brief, defendant contends the two one-year prior prison term enhancements must be stricken pursuant to the amendment to section 667.5, subdivision (b) by Senate Bill No. 136, effective January 1, 2020. The People concede the issue.
Signed by the Governor on October 8, 2019, and effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amends section 667.5, subdivision (b) to eliminate the one-year prior prison term enhancement for most prior convictions. (Stats. 2019, ch. 590, § 1.) An exception, not applicable here, is made for a qualifying prior conviction on a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b).
Because Senate Bill No. 136 became effective before defendant's judgment will become final, we agree with the parties that the amended law will apply to him retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence of contrary legislative intent, ameliorative criminal statutes apply to all cases not final when statute takes effect].) Accordingly, both of defendant's 667.5(b) enhancements must be stricken.
DISPOSITION
We modify the judgment to strike both of defendant's 667.5(b) enhancements. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy thereof to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
HULL, J. /s/_________
MAURO, J.