Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA089458. John A. Torribio, Judge.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Appellant Jose A. Lovato appeals from a judgment entered after a jury found him guilty of carrying a dirk and dagger, in violation of Penal Code section 12020, subdivision (a)(4). The jury found true the allegations that appellant had suffered two prior serious or violent felony convictions within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), and one prior prison term within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code.
Appellant was sentenced to state prison for a total term of seven years, calculated as follows: the upper term of three years for the base term, which was doubled pursuant to the three strikes law.
CONTENTIONS
Appellant contends that: (1) the trial court erred when it denied his motion to suppress pursuant to section 1538.5; (2) the trial court violated appellant’s right to due process of law in order to punish him for exercising his constitutional right to go to trial; and (3) the imposition of the aggravated term without jury findings to support it violated appellant’s rights to due process of law and a jury trial.
FACTS AND PROCEDURAL BACKGROUND
Section 1538.5 Hearing
At the hearing on a motion to suppress under section 1538.5, Los Angeles County Deputy Sheriff Larry Urrutia testified that on June 9, 2005, at 5:30 p.m., he was alone and in uniform when he arrested Pico Rivera gang member Larry Alvarez in a gas station parking lot, pursuant to an arrest warrant. Deputy Urrutia handcuffed Alvarez, put him in the backseat in handcuffs, and placed Alvarez’s property on the hood of his car. He was standing in front of the car inventorying Alvarez’s property, when he saw appellant about 20 feet away, walking toward him and pushing a bike.
Deputy Urrutia recognized appellant because he had previously arrested him on a marijuana charge. In response to the question of whether he knew if appellant had a history of violence “at the time that you saw him out in the field,” Deputy Urrutia responded: “Yes. From my last arrest with Mr. Lovato when I got into the station and checked his rap sheet, he had been convicted prior for assaulting police officers, and I had [also been] made aware by deputies at the station of his history of violence towards deputies at Pico Rivera station.” Deputy Urrutia testified that both appellant and Alvarez belonged to the Pico Rivera Gang. In order to get to his patrol car, Deputy Urrutia would have had to walk toward appellant.
Deputy Urrutia testified that as appellant approached him he asked appellant to come to him, had him put his hands behind his back, and conducted a patdown search for the officer’s own safety. Appellant did not say anything to Deputy Urrutia, make any gestures of violence, or appear to be trying to interfere with Alvarez’s arrest. In the course of the patdown, Deputy Urrutia found two five-inch nails taped together at the heads, to create a stabbing device, partially sticking out of appellant’s back pocket.
The trial court denied the motion to suppress on the basis that the encounter was consensual and that the patdown was a reasonable minimal intrusion made for the deputy’s own safety, based on his knowledge of appellant’s gang affiliations and past conduct.
The Jury Trial
Deputy Urrutia testified that on June 9, 2005, he was working alone, in uniform, and driving a marked black and white radio car. Deputy Urrutia had just arrested an individual, and was conducting a search of his property, while standing at the front of his car. Appellant approached him, pushing a bike. Appellant did not threaten the deputy or make any statements. Deputy Urrutia searched appellant, and found in appellant’s right pants pocket, two five-inch nails taped together to create a nine-inch long stabbing device.
Appellant presented no defense and was convicted of carrying a dirk and dagger, in violation of section 12020, subdivision (a)(4).
DISCUSSION
I. Standard of Review
Appellant contends that the trial court erred when it denied appellant’s motion to suppress because no consent was given and an unjustified detention occurred, resulting in an illegal patdown search of appellant.
Under section 1538.5, subdivision (a)(1), a defendant may make a motion to suppress evidence obtained as a result of an unreasonable search or seizure. “In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court’s resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]” (People v. Ramos (2004) 34 Cal.4th 494, 505.) To determine whether evidence procured by a search or seizure should have been suppressed, we consider only the Fourth Amendment’s prohibition on unreasonable searches and seizures. (People v. Carter (2005) 36 Cal.4th 1114, 1141.) “The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” (Rakas v. Illinois (1978) 439 U.S. 128, 131, fn. 1.)
II. Reasonable Detention
1. Consent
Appellant first urges that the trial court erred in ruling that the encounter between Deputy Urrutia and appellant was consensual. A consensual police encounter is one in which the interaction between the police and the individual results in no restraint of an individual’s liberty. (People v. Hughes (2002) 27 Cal.4th 287, 327.) The People concede that appellant’s compliance with Deputy Urrutia’s orders was done in submission to police authority and was not a consent to a patdown search. But, the People urge, the ruling must be sustained if it is correct upon any theory of law applicable to the case. (People v. Zapien (1993) 4 Cal.4th 929, 976.) Here, the People assert that under the totality of the circumstances it was reasonable for Deputy Urrutia to believe that appellant might be going to violently assault him, given appellant’s known prior convictions and history, and to temporarily detain appellant while he conducted a patdown search for weapons.
We agree with the People. As we discuss, infra, the trial court’s ruling was proper because the detention was brief and based on a reasonable concern for law enforcement safety.
2. Detention
A police officer may “seize” an individual and search that person so long as there is a justification for the intrusion given “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Terry v. Ohio (1968) 392 U.S. 1, 21, fn. omitted.)
Here, after arresting Alvarez, Deputy Urrutia noticed appellant walking toward him pushing a bicycle. At the suppression hearing, Deputy Urrutia testified that he had recognized appellant as someone he had previously arrested; that appellant and Alvarez belonged to the same gang; that he knew appellant had been previously convicted for assaulting police officers; and that other officers at the station had informed him of appellant’s history of violence toward police officers. Deputy Urrutia, alone, wearing a uniform, and near a marked police car, saw appellant walking straight toward him, and was concerned for his own safety. Given appellant’s prior history, Deputy Urrutia’s suspicion of an imminent attack was reasonable. We conclude that the evidence shows that Deputy Urrutia articulated sufficient facts warranting a reasonable suspicion that appellant might be preparing to assault him. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” (Terry v. Ohio, supra, 392 U.S. at p. 23.)
Citing People v. Hester (2004) 119 Cal.App.4th 376, 387, appellant attempts to characterize the facts articulated by Deputy Urrutia as assumptions or mere beliefs. In Hester, the police officer based the challenged detention on his suspicions that three vehicles were traveling together; that the passengers in the cars were gang members because one of the passengers was a gang member; that all members of that particular gang were aware that one of their members had shot a member of another gang that day; and that the passengers were armed and prepared for retaliation. (Id. at pp. 383-384.) The Fifth Appellate District concluded that the detention was based on speculation. (Id. at p. 389.) Here, on the other hand, Deputy Urrutia’s suspicions were founded on a factual basis: his knowledge that appellant and Alvarez were both members of the same gang; his knowledge of appellant’s prior criminal record for assaulting police officers; and his knowledge from other deputies that appellant had assaulted police officers.
Nor are we convinced otherwise by appellant’s argument that there was no evidence that appellant had an opportunity to see the person the deputy had just arrested. We must consider whether specific articulable facts exist in light of the totality of the circumstances, rather than the suspect’s frame of mind. Appellant also argues that there was no evidence that, among other things, Deputy Urrutia saw a weapon, or that the area was a high crime area, or that appellant avoided eye contact, or threatened him. While it is true that those specific factors were not presented, we have concluded that Deputy Urrutia pointed to other specific articulable facts reasonably warranting a belief that appellant was intending to commit an assault.
We conclude that the trial court did not err in denying appellant’s suppression motion.
III. Violation of Due Process
Appellant contends that the trial court decided to aggravate his sentence based on its perception that appellant should not have refused a reasonable plea offer.
Punishment of a person for exercising a constitutional right is “‘a due process violation of the most basic sort.’ [Citation.]” (In re Lewallen (1979) 23 Cal.3d 274, 278.) “‘A court . . . may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right.’ [Citation.]” (Id. at pp. 278-279.)
According to appellant, the trial court imposed an aggravated sentence because appellant’s failure to agree to a plea indicated to the trial court that he lacked remorse. We disagree. Our reading of the record persuades us that the trial court did not treat appellant more harshly because he did not agree to a plea offer. The record shows that after the jury returned its guilty verdict, and found the prior conviction and prior prison term allegations to be true, appellant waived the probation report and requested immediate sentencing. Appellant’s counsel argued for the midterm, on the basis that there were no aggravating or mitigating factors. The trial court responded: “What about absolutely no remorse for the crime? . . . The absolute lack of any acceptance of his criminal conduct. Isn’t that an aggravating factor?” Appellant’s counsel noted that lack of remorse was a factor, but that appellant’s primary concern was the suppression motion. The trial court stated: “I know that. I advised him on the record,” and noted that it had advised appellant that both orders on the suppression motion and the motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 were appealable. Furthermore, the court indicated that even if appellant had pled, it would have given him a certificate of probable cause on the motions, and that the motion to suppress was a good motion. Thus, the record does not indicate any animus toward appellant by the trial court.
After the trial court stated that lack of remorse was a factor, appellant’s counsel argued that mitigating factors included appellant’s cooperative attitude and lack of violence toward counsel or court staff. The People then urged that the following factors in aggravation existed: appellant’s lack of remorse; appellant’s prior conviction for escape under section 148; appellant’s prior prison record showing he had been continually returned to parole; that this case involved a threat of great violence; and that the weapon involved was extremely dangerous. The trial court adopted the People’s argument in its entirety and found the aggravating factors to exist, stating: “The court looked at the weapon. There is absolutely no societal purpose for that weapon other than harm.”
Appellant urges that the factors propounded by the People were not based on the record but on argument, complaining that the probation report was filed after appellant’s conviction. First, appellant waived consideration of the probation report and requested immediate sentencing. Therefore, he cannot now complain of the trial court’s failure to consider the probation report. Second, appellant did not object to the arguments presented by the People at the time of sentencing. Finally, the abstract of judgment regarding appellant’s conviction for attempted escape was documented in his prison packet, which was presented to the jury with respect to the prior convictions.
In light of the lack of animus demonstrated by the trial court, and its adoption of the factors in aggravation urged by the People, we conclude that there is no evidence that the trial court punished appellant for exercising his right to trial.
IV. The Recidivism Exception
In a supplemental letter brief filed September 14, 2007, appellant contends the trial court erred by imposing the high term based on facts neither found by the jury or admitted by appellant.
Appellant’s contention lacks merit. For the reasons set forth in People v. Black (2007) 41 Cal.4th 799 (Black II), we find no constitutional violation in the trial court’s imposition of the upper term.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) The Supreme Court subsequently held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely).) The high court recently made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham v. California (2007) 549 U.S. at p. __ [127 S.Ct. at 856, 868].) The court therefore concluded that the California determinate sentencing law (DSL) was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Id. at p. 871.)
However, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, 41 Cal.4th at p. 812.)
As appellant acknowledges, the right to a jury trial does not apply to the fact of a prior conviction. (Black II, supra, 41 Cal.4th at p. 818; People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) Moreover, the “‘prior conviction’ exception” must not be read too narrowly; it includes “not only the fact that a prior conviction occurred, but also other related issues that may be established by examining the records of the prior convictions.” (Black II,supra, at p. 819.)
The trial court’s determination that appellant had a prior prison record and had been continually returned to parole is the type of finding relating to a defendant’s recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court.’” (Black II, supra, 41 Cal.4th at pp. 819-820; accord, People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) Once the trial court made this determination, appellant was eligible for the upper term, which became the statutory maximum. (Black II, supra, at p. 816.) The trial court’s finding of additional facts that supported its discretionary choice of the upper term – the possession of an extremely dangerous weapon and a threat of great violence – thus did not violate appellant’s right to trial by jury. (Id. at p. 820.)
Since the imposition of the upper term did not violate appellant’s constitutional rights, we do not reach his argument that the constitutional error was not harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
I concur: BOREN, P. J.
DOI TODD, J.—Dissenting
I dissent because I cannot find that the evidence discloses specific articulable facts reasonably warranting a belief that appellant was intending to commit an assault, or any crime.
As in People v. Hester (2004) 119 Cal.App.4th 376, Deputy Urrutia’s suspicions were largely founded on his knowledge that appellant and Alvarez were both members of the same gang. Although he testified at the suppression hearing that he knew of appellant’s prior criminal record for assaulting police officers and that other deputies had told him that appellant had assaulted police officers, Deputy Urrutia did not explain when those offenses occurred, or if they were separate incidents. In the case at hand, there was no evidence that appellant was about to assault the deputy. Deputy Urrutia conceded that appellant made no threatening gestures or sounds and did nothing to interfere with Alvarez’s arrest. Nor was there evidence that appellant knew Alvarez had been arrested or that appellant could see him in the car from 20 feet away. According to Deputy Urrutia, appellant was merely pushing his bike in the deputy’s direction, and it was the deputy who asked appellant to come to him. There simply was no evidence that might have supported Deputy Urrutia’s suspicions.
I therefore conclude that the trial court erred in denying appellant’s suppression motion and would reverse the conviction.