Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF118007A. Michael B. Lewis, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Poochigian, J.
After his motion to suppress was denied, appellant Manuel Antonio Marquez pled no contest to second degree robbery with personal use of a firearm (Pen. Code, §§ 212.5, subd. (c), 12022.53, subd. (b)) and admitted two prior prison term enhancements (§ 667.5, subd. (b)) and allegations that he had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)). On March 3, 2010, the court sentenced Marquez to an aggregate 12-year term, the aggravated term of five years on the robbery conviction, doubled to 10 years because of the prior strike conviction, and two 1-year prior prison term enhancements.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On appeal, Marquez contends the court erred when it (1) denied his motion to suppress; and (2) imposed a fine pursuant to Government Code section 70373. We will affirm.
FACTS
At the hearing on the motion to suppress, John Hicks and Joshua Huffman testified that around noon on October 5, 2005, Marquez entered their house armed with a gun, bound the men with duct tape, and robbed them of approximately $10,000. Huffman described the robber as a bald Hispanic man in his forties or fifties, wearing blue jeans and a white T-shirt or tank top. The description was broadcast to patrolling officers.
Kern County Sheriff’s Sergeant Linda Sallee (Sallee) testified that about noon on October 5, 2005, she was two to three blocks north of the site of the robbery completing another call when a woman told her there was a man hiding in the bushes. Sallee checked the bushes, but did not find anyone. She heard a broadcast over the radio for a robbery suspect who matched the description the woman gave her of the man hiding in the bushes. She then saw Marquez walking rapidly into a park. Sallee told dispatch that she saw the suspect and was going to stop him. She stopped her car and walked towards Marquez as he walked towards her. Sallee stopped Marquez and told him she wanted to ask him some questions. She asked Marquez if he had been hiding in some bushes and patted him down for weapons. Other officers arrived on the scene within minutes.
Kern County Sheriff’s Deputy Eric Fennell (Fennell) contacted Marquez at the park and advised him he “was not under arrest and that there was an ongoing investigation involving other deputies.” Marquez told Fennell he had been painting a doughnut shop, but there was no paint on his clothing or hands. Marquez was looking around nervously and acting as if he were going to leave, so Fennell told him to sit on the grass. Marquez sat, but began to scoot toward the sidewalk. Fennell, who had heard the broadcast of the description of the robber, recalled that the broadcast had reported the robber was armed. Fennell asked Marquez to kneel so he could do a cursory search for weapons. The pat search disclosed a roll of duct tape in Marquez’s pants pocket. Officers found a backpack containing money and a loaded handgun in the nearby bushes. Later that day, John Hicks indentified Marquez as the robber at an infield showup.
DISCUSSION
The Motion to Suppress
Marquez contends Sallee unlawfully detained him without reasonable suspicion because she never testified that he matched the description broadcast of the suspect. We disagree.
Preliminarily, we note that Marquez did not contend in the trial court that he was detained by Sallee, or that his detention by Sallee was unlawful. Instead, he contended he was first detained when Fennell ordered him to sit on the ground. Thus, Marquez forfeited the right to challenge his initial contact with Sallee as an illegal detention. (People v. Scott (1993) 17 Cal.App.4th 405, 410-411.) However, even if this issue were properly before us, we would reject it.
On appeal, we review the trial court’s factual determinations for substantial evidence; we review its determination of the applicable rule of law de novo. “We independently assess … whether, under such facts as found …, the challenged action by the police was constitutional.” (People v. Lindsey (2007) 148 Cal.App.4th 1390, 1395.)
“‘A police officer may temporarily detain and patsearch an individual if he believes that criminal activity is afoot, that the individual is connected with it, and that the individual is presently armed.…”’ (People v. Lindsey, supra, 148 Cal.App.4th at p. 1395.) “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.)
A general description is sufficient justification for stopping and questioning persons meeting that description. (People v. Craig (1978) 86 Cal.App.3d 905, 911 (Craig).) Here, Sallee saw Marquez a short time after the robbery within a few blocks from where it had occurred, and Marquez matched the description of the robber that had been broadcast over the radio. As in Craig, these circumstances provided Sallee with a reasonable suspicion to believe that Marquez was the robber and to detain him.
Marquez contends that Sallee did not have reasonable suspicion to detain him because, although she testified she heard the description of the robber prior to detaining him, she did not testify explicitly that he matched the description. We disagree.
Although Sallee did not specifically testify that Marquez matched the description of the robber she heard broadcast, she testified she advised dispatch she saw the subject and was going to stop him. Because Sallee was aware of the robber’s description, it is implicit in her characterization of Marquez as “the subject” that Marquez matched the description of the robber. In any event, Fennell’s testimony unequivocally established that Marquez matched the broadcast description of the robber. Thus, the record established that Sallee was aware of the robber’s description and that Marquez matched that description. This was sufficient under Craig to provide Sallee with a legal basis for detaining Marquez, whether the fact that Marquez matched the robber’s description was provided by her testimony or Fennell’s. Accordingly, we reject Marquez’s contention that the court erred when it denied his motion to suppress.
The Government Code Section 70373 Assessment
The court imposed a $30 assessment pursuant to Government Code section 70373 on Marquez’s robbery conviction. Government Code section 70373 was enacted in 2008 and became effective on January 1, 2009. (Gov. Code, § 70373, added by Stats. 2008, ch. 311 § 6.5, p. 2113.) This code section in pertinent part provides:
“To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony ….” (Gov. Code, § 70373, subd. (a)(1).)
Marquez committed the offense underlying his conviction in 2005, prior to the effective date of Government Code section 70373. Marquez contends that this section operates prospectively only because the statute does not contain a declaration of retroactivity and there is no evidence the legislature or the voters intended a retroactive application. Thus, according to Marquez, the assessment pursuant to this section was unauthorized because it may not be applied retroactively to his offense.
This court recently held that in determining whether the section 70373 assessment applied, the date of the conviction, not the date the crime was committed, was the material date. (People v. Phillips (2010) 186 Cal.App.4th 475, 477-479; see also People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-1415.) We find these cases controlling and apply their holdings here to reject Marquez’s contention.
DISPOSITION
The judgment is affirmed.