Opinion
A131944
11-07-2011
THE PEOPLE, Plaintiff and Respondent, v. CHARLES THOMAS JONES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Lake County Super. Ct. Nos. CR908439 & CR908705-A)
This is our third review of two 2006 Lake County Superior Court drug cases against appellant Charles Thomas Jones. In the first case (Super. Ct. Lake County, 2006, No. CR908439), appellant was found guilty upon his "slow plea" of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), one of three charges, with strike and prison-term enhancements found true. In the second case (Super. Ct. Lake County, 2006, No. CR908705), appellant entered a negotiated guilty plea to possessing methamphetamine (id., § 11377, subd. (a)) and misdemeanor possession of tear gas (Pen. Code, § 12420), two among 10 counts, plus admitted enhancements. At a consolidated sentencing hearing, appellant received a total prison term of 10 years four months.
In the first appeal (People v. Jones (Sept. 30, 2008, A119995) [nonpub. opn.]), we vacated the judgments in part, holding that the trial court erred in refusing to hear a motion alleging ineffective assistance of counsel affecting the result of the first motion to suppress. Our remand directions were that the court take evidence on the renewed claim; if it found ineffective assistance, it would rehear the suppression motion and, if suppression was warranted, set a retrial of the first case and a resentencing in the second. If ineffective assistance was not found, the judgments would stand in each case.
At the evidentiary hearing on remand, the trial court found no ineffective assistance. In the second appeal, in a published opinion, we disagreed with this finding, vacated the judgment in the first case, and again remanded the matter to the trial court to reconsider appellant's motion to suppress. (People v. Jones (2010) 186 Cal.App.4th 216.)
The critical issue at the 2006 suppression hearing was the truth of Clearlake Police Officer Greg Piccinini's statement that he saw appellant run a stop sign and stopped his vehicle and arrested him for violation of Vehicle Code section 22450. Appellant claimed that he came to a complete stop at the sign, Piccinini could not from his position have seen whether he stopped, and the stop was pretextual. Our confidence in the outcome of the 2006 suppression hearing was, we explained, "substantially undermined" by the investigative failures of appellant's original defense counsel, Thomas Quinn, and the evidence produced by Richard Biggs, a criminal investigator hired by appellant's new counsel, showing Piccinini could not have seen appellant roll through the stop sign, as he claimed.
On January 18, 2011, in connection with its reconsideration of appellant's suppression motion, the trial court held a hearing on appellant's Pitchess motion for disclosure of the personnel records of the arresting officers. (Evid. Code, § 1043.) After in camera review of those records, the court ordered disclosure of contact information for potential witnesses who might provide testimony relevant to the credibility of the officers who participated in appellant's arrest.
See Pitchess v. Superior Court (1974) 11 Cal.3d 531.
On April 27 and May 3, 2011, the trial court reheard appellant's motion to suppress, denied the motion, reinstated the previous judgments, and remanded appellant to the Department of Corrections and Rehabilitation.
Timely notice of this appeal was filed on May 4, 2011.
On September 2, 2011, appellant's court-appointed attorney filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
On September 11, 2011, appellant sent the First District Appellate Project (FDAP) a four-page letter setting forth his version of the relevant facts, issues he believes should be considered, and asking for appointment of new appellate counsel. FDAP filed that letter with the clerk of this court on September 15, 2011. A copy of the same letter was forwarded to the clerk of this court by attorney Terrence McQuigg, who filed the Wende brief in this appeal, and his letter and the enclosed copy of appellant's letter, was filed with the court on September 19, 2011. On November 2, 2011, attorney McQuigg filed a letter with the clerk of this court stating that "appellant requests an extension of at least thirty days in order to file a more extensive brief raising issues he wishes to bring before the court." We issued an order denying that untimely request on November 3, 2011.
Appellant's fourpage letter discussing the facts and issues he believes this court should evaluate has been considered.
FACTS
The remand ordered in the last appeal directed the trial court to vacate appellant's conviction in case No. CR908439 and reset that case for trial, and reconsider the sentence in case No. CR908705 only in the event that the trial court determined to grant appellant's Penal Code section 1538.5 motion to suppress evidence. Because the court determined to deny that motion, the only issue presented by this appeal is the propriety of that ruling. Therefore, the only facts relevant to the appeal are those elicited at the two hearings held in 2011 on the motion to suppress. (People v. Jones, supra, 186 Cal.App.4th at p. 245.)
Three witnesses testified for the prosecution: Officer Piccinini, who made the traffic stop; Clearlake Police Officer Tim Hobbs, who tested appellant for drugs and arrested him; and Jim Crane, a criminal investigator for the Lake County District Attorney.
Crane authenticated 10 photographs of the intersection of Arrowhead and Park he had taken on April 21, 2011 from various perspectives and distances, one of which was of a car located at the "limit line" of the stop sign appellant assertedly rolled through. These photographs, later designated People's exhibit Nos. 1 through 10 and received in evidence, were frequently referred to by Officer Piccinini in his testimony.
Officer Piccinini testified that while travelling north on Park Street toward the intersection with Arrowhead Street, which was about 30 yards away, he saw the headlights of a car travelling eastward on Arrowhead slow down but roll through the intersection without stopping. At that time, Piccinini had been told by the Lake County Narcotics Taskforce that appellant was under surveillance, but he was not aware appellant was the driver of the vehicle he saw run the stop sign. After he stopped the vehicle, Piccinini shined his flashlight at the driver, who he recognized from previous contacts as appellant, and asked why he ran the stop sign. Appellant, who did not dispute that he had run the stop sign, answered " 'Sorry, dog.' "
Piccinini, who received training in determining whether a person was under the influence of a controlled substance, noticed that appellant's eyes were dilated, and after appellant stepped out of his car, also observed his rigid muscle tone, fidgety fingers, and repetitive speech, all of which Piccinini considered indications appellant was under the influence of a controlled substance.
Shortly after Piccinini stopped appellant, Clearlake Police Officers Celli and Hobbs separately arrived at the scene. Officer Celli asked appellant if he would consent to a search of his car; appellant consented, and no incriminating evidence was found there. Piccinini said that after conducting a "drug evaluation," Officer Hobbs determined that appellant was under the influence of methamphetamine and arrested him.
On cross-examination, Piccinini acknowledged that he had been looking for appellant at the time he stopped his vehicle, but insisted that he did not know appellant was the driver of the car he stopped for running the stop sign until after he made the stop. Referring to the photographs in exhibit Nos. 1 through 10, Piccinini repeated on cross that he saw the headlights of appellant's car before he saw the car itself, but clearly observed the vehicle make what he described as "a California rolling stop" at the place at which Arrowhead encroached upon Park Street. Piccinini reiterated that when he first saw the car as it rolled through the stop sign he did not know it belonged to appellant or that he was the driver.
Shortly after Officer Piccinini made the stop, and while appellant was still seated in the vehicle, Officer Celli arrived at the scene and asked appellant for permission to search the car and appellant consented. Piccinini did not call Officer Celli to the scene, and could not remember whether he called Officer Hobbs to the scene.
Tim Hobbs, a sergeant with the Clearlake Police Department, testified that he was called by Officer Celli to respond to the scene, and it took him just a few minutes to get there. Hobbs, who had extensive training on determining whether a person is under the influence of controlled substances, immediately noticed several signs appellant was under the influence of such a substance: he was making repetitive body movements, his eyelids were rapidly fluttering, his speech was rapid, he had a visible carotid pulse, and his pupils were dilated. Hobbs asked appellant when he had last used methamphetamine and appellant said it was approximately a week ago.
After appellant agreed to submit to a few tests to determine if he was under the influence, Hobbs conducted "the Drug Abuse Recognition seven-step process," tested appellant's pulse, tested the size of his pupils with a pupilometer card and light, and conducted a "Romberg test." On the basis of these tests, Hobbs concluded that appellant "was under the influence of a controlled substance, specifically a central nervous system stimulant," which Hobbs suspected was methamphetamine. For that reason, Hobbs arrested appellant. After Hobbs explained his Miranda rights, appellant waived those rights. Among other things, appellant stated that he had last used methamphetamine an hour and a half earlier. At that point, Officer Piccinini drove appellant to the Clearlake Police Department, where he was booked.
Miranda v. Arizona (1966) 384 U.S. 436.
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After Hobbs explained to appellant the consequences of bringing drugs into the jail, appellant stated that he had one-and-one-half ounces of two types of methamphetamine in his underwear, which he removed and placed in a plastic bag. The People rested at the conclusion of Hobbs's testimony.
The defense also presented three witnesses: private investigator Richard Biggs; Samantha Sutch, a friend of appellant who was driving a vehicle behind him at the time his vehicle was stopped; and appellant himself.
Biggs described himself as a retired bail bondsman, a process server, and a private investigator. Like Crane, he also took photographs of the intersection at issue, and nearby streets, from various perspectives and distances. His photographs were also taken at different times of day. Biggs conducted two experiments to determine whether a person located at the place on Park Street at which Piccinini said he was located when he saw appellant roll through the stop sign would have difficulty seeing the stop sign or a vehicle approaching it from the west. The first test was during daylight hours; the second was conducted at night "at the approximate time frame that Mr. Jones was stopped." Like his testimony at the 2009 hearing on ineffective assistance (see People v. Jones, supra, 186 Cal.App.4th at p. 233), the gravamen of Briggs's testimony at the suppression hearing was that it would not be possible for a person on Park Street in Piccinini's position (i.e., approximately 30 yards south of the intersection) to tell from the light cast by the headlights of a car travelling east on Arrowhead whether the vehicle stopped at the stop sign or ran through it.
Samantha Sutch, appellant's friend for about seven years, was at his house earlier in the day he was stopped and arrested, and was driving her Cadillac Eldorado close behind him at the time he was stopped by Officer Piccinini. She observed appellant twice come to a full stop. After first coming to a full stop for "two or three seconds" "at the stop sign," appellant slowly rolled his vehicle forward in order to be able to see whether any vehicles were approaching Arrowhead from Park Street, stopping the vehicle when he was able to view the traffic approaching Arrowhead on Park from both directions. Ms. Sutch had "no doubt" appellant stopped at the sign and remembered it well because she almost rear-ended him. Sutch stated that she was not at the time under the influence of any controlled drug or alcohol, but did not know whether that was also true of appellant.
As she crossed Park Street, she saw a police car racing toward the intersection; the car had cut her off on Lakeshore Street a few seconds earlier, requiring her to slam on her brakes. The next morning, when appellant's girlfriend, Amber, told her that appellant had been stopped for running a stop sign and arrested, Sutch told her she was at the scene and knew "he didn't run the stop sign." Sutch acknowledged on cross-examination that she never contacted the police to give a statement regarding the traffic stop.
Appellant testified that he clearly remembered his 2006 arrest because the claim he ran the stop sign was "bogus." Appellant had previously been arrested in Clearlake for being under the influence of methamphetamine three times. On the evening in question, he noted that vehicles belonging to the Lake County Narcotics Task Force were surveilling his house, so he left the premises after secreting drugs "in my butt cheeks" and drove to his friend Mike's house. As he drove on Arrowhead toward Park, he saw Samantha Sutch's car behind him. When the nose of his vehicle approached the stop sign, he came to a complete stop for "five or six seconds." He was careful to do this because he knew numerous accidents occurred at this intersection. Appellant was sure he stopped in front of the stop sign because he remembered seeing the sign pole while stopped. After the stop, he "pulled forward to make sure that I could proceed across the street without, you know what I mean, any trouble." As he crossed the intersection, appellant saw "the push bumpers of two police cars side by side coming up Park Street" toward him. He was shortly pulled over by one of these cars, which was driven by Officer Piccinini.
Sergeant Celli appeared on the scene almost immediately. After asking appellant "you selling any drugs tonight," Celli asked whether he could search his vehicle. Appellant told him "No. I'm not on probation or parole." At that point, appellant testified, Celli "told me to get the fuck out of my vehicle." Appellant stated that he never gave Celli or any other officer permission to search his vehicle, but he did get out of the vehicle.
Appellant also stated that Officer Hobbs subjected him to a strip search. After he took his clothes off, as directed, and was told to turn around, appellant said he "grabbed my dope and I handed it to [Hobbs and Celli]." Appellant said he heard Officer Hobbs testify that he voluntarily gave Hobbs his drugs while he was still wearing his clothes, but "that is not what happened."
Appellant stated on cross-examination that he was carrying his drugs because he felt that the Narcotics Task Force might raid his house "with my kids and my old lady there and find dope." Appellant admitted he had used methamphetamine earlier that evening, and that he "used every day." Appellant denied admitting to Officer Piccinini that he had rolled through the stop sign, claiming he told him "I did not believe I did run through that stop sign or a California stop." Appellant also stated that Officer Hobbs's testimony that he admitted being under the influence of methamphetamine "was a lie." Appellant remembered Hobbs telling him it was a crime to bring drugs into the jail, but claimed he never told Hobbs he had "methamphetamine in [his] ass crack" or that the methamphetamine was "packaged in three baggies."
After counsel for the parties made closing arguments and the matter was submitted, the court stated and explained its findings. First, the court stated that Officer Piccinini's testimony, which was consistent with that of Officer Hobbs, was "very credible." Based on the fact that he was admittedly under the influence of methamphetamine at the time of the traffic stop, and his demeanor on the stand, the court found that appellant's testimony was not credible.
The court discounted Biggs's testimony because it did not believe his assessments of the intersection were made from the same place Officer Piccinini said he was located when he made his observation of the intersection and the light from and movement of appellant's vehicle. As the court stated, "Biggs was not driving forward as the officer was. He was pulled over to the side and stable. Piccinini was driving forward. He was getting closer to the intersection every moment. I've seen the photographs. I have no doubt that Officer Piccinini could have seen the lights at the intersection from defendant's car as he approached the stop sign on Arrowhead. And he saw that the vehicle did not come to a complete stop, which would be, of course, a violation of the Vehicle Code section 22450. I don't find Mr. Biggs experiment to have been very similar to what happened [on] the night in question. I'm not convinced by it."
The court also rejected appellant's theory that Piccinini had an ulterior motive. According to the court, Piccinini "didn't know who the driver of that vehicle was when he saw the violation and turned in behind him and radioed in." Citing Whren v. United States (1996) 517 U.S. 806, the court also noted that the stop would be valid even if Piccinini had an ulterior motive.
In short, the court concluded that appellant rolled through the stop sign and Piccinini's stop was legitimate, not pretextual. So too, the court concluded, was the arrest justified, because Officer Piccinini immediately noted several signs indicating appellant was under the influence of a controlled substance, which was confirmed by the tests conducted at the scene by Officer Hobbs. The court also accepted as true the testimony of the officers that appellant was not strip-searched, but willingly retrieved the methamphetamine secreted in his underwear after being told that bringing drugs into the jail constituted a separate felony.
The court found Samantha Sutch's testimony not credible because it conflicted with that of appellant. Appellant stated that he saw two police cars racing toward him side-by-side as he crossed Park Street, but Ms. Sutch, who claimed she was right behind him, said she saw nothing.
DISCUSSION
Proceedings on motions to suppress evidence are ones in which factual issues are resolved by the trial court sitting as a finder of fact. In such a proceeding, the power to judge the credibility of witnesses, resolve any conflicts in the testimony, weigh evidence, and draw factual inferences, is vested in the trial court. On appeal, all presumptions favor the exercise of such power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence. (People v. Rios (1976) 16 Cal.3d 351, 357; People v. Duren (1973) 9 Cal.3d 218, 239; People v. Payne (1977) 65 Cal.App.3d 679, 681.) Issues relating to the suppression of evidence derived from governmental searches and seizures, as here, are reviewed under federal constitutional standards. (People v. Parson (2008) 44 Cal.4th 332, 345, fn. 4; People v. Ayala (2000) 23 Cal.4th 225, 254.)
The foregoing standards of review provide no basis upon which we can question the trial court's findings. As those findings fully support the denial of appellant's Penal Code section 1538.5 motion to suppress evidence, we are compelled to affirm the ruling. Accordingly, there is no basis upon which to challenge the judgments.
Our independent review having revealed no arguable issues that require further briefing, the judgments of conviction in the two cases before us, which include the sentences imposed, are affirmed.
Kline, P.J.
We concur:
Haerle, J.
Lambden, J.