Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. KA086037 Robert M. Martinez, Judge.
Law Offices of Pamela J. Voich and Pamela J. Voich for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Sr. Assistant Attorney General, Lance E. Winters and Susan D. Martynec, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, J.
Pursuant to an information filed on March 19, 2009, Robert Edward Lewis (defendant) was charged with one count of bringing drugs into a jail (Pen. Code, § 4573) and one count of possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)), as well as special allegations pertaining to prior convictions pursuant to sections 667.5 and 1203, subdivision (e)(4). Defendant pled not guilty and denied all allegations. Following denial of his motion to suppress and waiver of his right to a jury trial, defendant was convicted by the court on both counts and thereafter sentenced on June 23, 2009, to three years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends the court committed error by denying his motion to suppress. Because the glass pipe discovered during the booking search formed the basis for both charges and would never have been found but for his initial detention, which defendant contends was unconstitutional, defendant argues the pipe was “fruit of the poisonous tree” and should have been excluded. Defendant further contends that he is entitled to additional presentence custody credits pursuant to recently amended section 4019. We affirm the court’s denial of defendant’s motion to suppress. However, defendant is correct that he is entitled to additional days of presentence custody credit, and therefore we remand with directions to modify the judgment and abstract of judgment accordingly.
The contours of the exclusionary rule are well known: If challenged police conduct is shown to violate the Fourth Amendment “‘the exclusionary rule requires that all evidence obtained as a result of such conduct be suppressed[, ]... [including] not only what was seized in the course of the unlawful conduct itself--the so-called “primary” evidence [citations]--but also what was subsequently obtained through the information gained...--the so-called “derivative” or “secondary” evidence [citations]. Thus, the “fruit of the poisonous tree, ” as well as the tree itself, must be excluded.’” (People v. Mayfield (1997) 14 Cal.4th 668, 760.)
FACTS
On February 18, 2009, Officer Jesus Cardenas (Cardenas) was on patrol during the graveyard shift and working as a field training officer. Cardenas is an 11-year veteran with the Pomona Police Department. Just before midnight, Cardenas and his trainee, Officer Sean Geer (Geer), turned into the parking lot in front of a strip mall located at 1136 East Holt Avenue in Pomona. None of the stores in the strip mall were open at that hour. The neighborhood around East Holt Avenue is “plagued” by narcotic activity and prostitution, generates numerous citizen complaints, and is subject to extra patrols on that basis. Cardenas and Geer were conducting such a patrol, surveying the entire parking lot and shining their spotlight into all parked vehicles, attempting to determine if there was any narcotic activity, sexual activity, loitering or trespassing taking place. Cardenas was in the passenger seat of the patrol car and Geer was driving.
As they made their way through the parking lot using the spotlight, Cardenas spotted an occupied vehicle, behind a box truck, that had not been visible from the street. It was parked and its lights were off. Cardenas and Geer were less than a car length away, and the spotlight fully illuminated the vehicle. He saw defendant in the driver’s seat with a second occupant, a female, in the front passenger seat. Cardenas notified Geer there was an occupied vehicle, and Geer immediately parked the patrol car. Cardenas saw defendant make a furtive movement, which he described as “reaching down towards the bottom of the vehicle, ” toward the floorboard.
Cardenas got out of the patrol car and took cover by the box truck. He did not know if defendant was concealing contraband or a weapon or whether the situation presented a danger. Geer had already exited the patrol car and was making his way around the subject vehicle to approach the driver’s side door and ask defendant for identification. Cardenas repositioned himself to cover the passenger side of the vehicle.
In response to Geer’s query, defendant produced a pre-booking slip with his name on it. Within three to four minutes of Cardenas stepping up to the passenger side door, while Geer was obtaining identification from defendant, the female occupant volunteered to Cardenas that she and defendant had been “smoking crack.” Defendant and the female passenger were then arrested for narcotic loitering. Nothing was discovered during the initial pat-down search, and defendant and the female were thereafter transported to the Pomona city jail. During the pre-booking search of defendant at the jail, a glass pipe used for smoking crack was found in his left boot or sock.
The trial court denied defendant’s motion to suppress the glass pipe, finding the facts and circumstances known to the officers justified the brief detention, the request for identification, and the attempt to ascertain defendant’s reason for being in the parking lot. After the suppression motion was denied, defendant waived his right to a jury trial, stipulated to the admission of the suppression hearing testimony of Cardenas, and was convicted on both counts by the court. Defendant was sentenced on June 23, 2009, to three years in state prison with 187 days of custody credits. This appeal timely followed.
DISCUSSION
1. The Motion to Suppress Was Properly Denied.
“‘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; People v. Glaser (1995) 11 Cal.4th 354, 362.) We find no error in the court’s order denying the motion.
In order for a detention to withstand Fourth Amendment scrutiny, “the circumstances known or apparent to the officer must be such as would cause a reasonable law enforcement officer in a like position, drawing when appropriate on his or her training and experience, to suspect that criminal activity has occurred, is occurring, or is about to occur and that the person to be stopped or detained is involved in the activity.” (People v. Conway (1994) 25 Cal.App.4th 385, 389 (Conway).) The officer must have “‘specific and articulable’” facts that are applicable to the particular suspect to be detained. (People v. Perrusquia (2007) 150 Cal.App.4th 228, 234 (Perrusquia).) And, the “reasonable suspicion requirement is measured by an objective standard, not by the particular officer’s subjective state of mind at the time of the stop or detention.” (Conway, at p. 388.)
The only witness who testified at the suppression hearing was Cardenas. He described how he and Geer found defendant and his companion in a car, with the lights off in a spot hidden from the street, parked in a dark shopping mall parking lot, long after business hours, in an area known for regular narcotics and prostitution activity. When the officers shined a light into the vehicle, defendant quickly made a furtive gesture toward the floorboard of the car. A reasonable officer would suspect defendant had been or was about to engage in an illicit drug transaction or an illicit sexual encounter and was seeking to hide or conceal something related thereto at the first sight of law enforcement.
The mere fact these same circumstances could also be consistent with lawful activity, such as two individuals simply sitting and talking in a parked vehicle, in a semi-private location, does not mean the detention violated the Fourth Amendment. “[W]hen circumstances are ‘“consistent with criminal activity, ” they permit--even demand--an investigation....’ [Citation.] A different result is not warranted merely because circumstances known to an officer may also be ‘“consistent with lawful activity.”’ [Citation.] As we said: ‘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 [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal....’” (People v. Souza (1994) 9 Cal.4th 224, 233 (Souza), italics added.)
Defendant incorrectly argues that facts unrelated to the suspect, like being in a high-crime neighborhood, are not relevant to a determination of whether or not there were facts supporting reasonable suspicion. While it is true a person’s presence in an area known for criminal activity does not alone provide a basis to detain an individual, it is one appropriate factor to consider in judging the totality of the circumstances. “An area’s reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment.” (Souza, supra, 9 Cal.4th at p. 240.) “The time of night is another pertinent factor in assessing the validity of a detention.” (Id. at p. 241.) Whether or not an individual displays nervous or evasive behavior, including fleeing from law enforcement, is also appropriately considered. (Illinois v. Wardlow (2000) 528 U.S. 119, 124.) “‘[T]he totality of the circumstances--the whole picture--must be taken into account.’” (Souza, at p. 230, citing United States v. Cortez (1981) 449 U.S. 411, 417-418.) Here, the totality of circumstances supported a reasonable suspicion that defendant may have been engaging or about to engage in criminal activity.
Indeed, there are more facts here to support reasonable suspicion than were found adequate in Conway, supra, 25 Cal.App.4th 385. There, the detaining officer had received a report of a burglary in progress in the neighborhood he was patrolling, but had no description of the suspects and did not know if they were in a car. Nevertheless, the court found that the officer’s detention of two individuals in a car was justified, because he saw a car leaving the area of a reported burglary less than two minutes after receiving the report of a burglary in progress at 3:00 a.m., and the officer saw no one else in the area. (Id. at p. 390.)
Compare with Perrusquia, supra, 150 Cal.App.4th 228 (granting of motion to suppress affirmed where suspect was waiting in car, with engine running, in commercial parking lot in neighborhood with high crime, not particularly late in the evening, while the store was still open for business; officer had no information that suspect matched description of robbery suspects but suspect did not want to answer officer’s questions and attempted to walk away after exiting his vehicle).
The record does not support defendant’s contention that the officers wrongfully detained him on a “mere curiosity, rumor, or hunch.” (Conway, supra, 25 Cal.App.4th at p. 389.) The detention was reasonable based on a review of the totality of the circumstances and did not violate defendant’s constitutional rights. As such, the motion to suppress was properly denied.
2. Defendant Is Entitled to Additional Custody Credits.
Defendant contends he is entitled to additional presentence custody credits due to the recent amendments to section 4019, which became effective while defendant’s appeal was pending. Defendant contends, and we agree, the amended statute should be given retroactive effect. Determining whether a statutory amendment applies retroactively is a question of law we review independently. (In re Chavez (2004) 114 Cal.App.4th 989, 994.) There is a split of authority among our appellate districts on this issue, with the majority of courts having considered the issue holding that retroactive application is dictated. (See e.g., People v. Delgado (2010) 184 Cal.App.4th 271 [Second Dist., Div. Six]; People v. Keating (2010) 185 Cal.App.4th 364 [Second Dist., Div. Seven], People v. Pelayo (2010) 184 Cal.App.4th 481 [First Dist., Div. Five], but see, People v. Hopkins (2010) 184 Cal.App.4th 615 [Sixth Dist.].) We find the more persuasive analysis supports retroactive application.
A challenge may be made to an award of presentence custody credit at any time. (People v. Florez (2005) 132 Cal.App.4th 314, 319, fn. 12.) Because the amendment went into effect while this appeal was pending, the issue was first raised in the reply brief. We found good cause to hear the issue and afforded the parties the opportunity to submit supplemental briefing by way of letter briefs.
Four of the decisions are presently pending before the Supreme Court, i.e., People v. House (2010) 183 Cal.App.4th 1049, rev. granted June 23, 2010; People v. Brown (2010) 182 Cal.App.4th 1354, rev. granted June 9, 2010; People v. Landon (2010) 183 Cal.App.4th 1096, rev. granted June 23, 2010; People v. Rodriguez (2010) 182 Cal.App.4th 535, rev. granted June 9, 2010.)
Section 4019 was amended effective January 25, 2010. (§ 4019, subds. (b) & (c), as amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) The amendment reformulates how good conduct and work time credits shall be calculated for certain classes of offenders. That formulation results in an increase in the number of presentence custody credits to be awarded a defendant as an offset against a prison sentence. The Legislature, in amending section 4019, did not expressly declare whether or not the new language should be given retroactive effect. We therefore must look to other factors to infer legislative intent. (People v. Martinez (1987) 194 Cal.App.3d 15, 19.)
Section 3 provides that no part of the code is retroactive unless expressly declared to be so. Nevertheless, notwithstanding section 3, it is well established that a criminal defendant, absent a savings clause, “is entitled to the benefit of a more recent statute [or amendment] which mitigates the punishment for the offense....” (People v. Babylon (1985) 39 Cal.3d 719, 725.) If, as here, “the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then... it, and not the old statute in effect when the prohibited act was committed, applies.” (In re Estrada (1965) 63 Cal.2d 740, 744.)
We hold that the amendments to section 4019 should be applied retroactively to cases not yet final as of the date of its enactment on January 25, 2010. The amendments lessened defendant’s punishment by eliminating 62 days from his prison sentence. Under the amended language, defendant is entitled to one day each of work time and conduct credit for each four-day period of actual presentence custody. Since defendant served 125 days of actual presentence custody, he is now entitled to 124 days of good time/work time credits instead of the 62 days previously awarded. Defendant is entitled to a total presentence credit of 249 days.
DISPOSITION
The judgment is remanded for modification as to the calculation of defendant’s custody credits pursuant to section 4019, as amended. The trial court is directed to modify the judgment to reflect total presentence custody credits of 249 days, inclusive of 125 days of actual custody credits and 124 days of good time/work time credits. The trial court is further directed to prepare an amended abstract of judgment consistent with the modified judgment and transmit a certified copy of same to the Department of Corrections. The judgment is affirmed as modified.
We concur: BIGELOW, P. J., FLIER, J.