Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of San Bernardino County No. FCH07478, Douglas M. Elwell, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton, Elizabeth A. Hartwig and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Danny Dan McGhee appeals from his conviction of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). He contends: (1) the trial court erred in denying his motion to suppress evidence; (2) the trial court abused its discretion in denying his motion to dismiss a strike; and (3) his prison credits should be recalculated. The People concede defendant’s prison credits should be recalculated, and we agree. We find no other errors.
II. FACTS AND PROCEDURAL BACKGROUND
In the course of a search of defendant’s car, which will be discussed in more detail below, police officers found a loaded handgun under the driver’s seat. The gun was unregistered; the car was registered in defendant’s name. The parties stipulated that defendant had suffered a prior felony conviction and that, for purposes of the trial, the police had a legal right to search the car.
The jury found defendant guilty of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). The jury also found true that defendant had two prior strikes (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that defendant had served three prior prison terms (Pen. Code, § 667.5, subd. (b)).
The trial court sentenced defendant to 25 years to life, plus three consecutive one-year terms for the prior prison term convictions. The trial court gave defendant credit for time served of 704 actual days plus 140 conduct days.
III. DISCUSSION
A. Denial of Motion to Suppress Evidence
Defendant contends the trial court erred in denying his motion to suppress evidence because he was illegally detained.
1. Standard of Review
When we review the denial of a motion to suppress evidence, we apply the deferential substantial evidence standard to the facts as found by the trial court, but we review de novo whether on those facts the search and seizure were reasonable under federal constitutional standards. (People v. Hughes (2002) 27 Cal.4th 287, 327.)
2. Additional Factual Background
Defendant moved before trial to suppress the evidence seized during the search of his car.
Evidence at the hearing on the motion established that around 1:00 to 2:00 a.m. on August 27, 2005, a thin African-American man in his mid-20’s, five feet six inches to five feet 11 inches tall, wearing dark clothing, committed two robberies near Chino High School. In the early morning hours of August 29, Chino Police Sergeant Christopher Van Arsdell was on patrol in a marked patrol car looking for the robbery suspect in the area of the high school. He saw defendant, a thin African-American man approximately six feet tall, wearing dark clothing, standing near an apartment complex talking to a woman. Defendant appeared to be 35 to 40 years old.
Sergeant Van Arsdell drove by again and saw defendant standing near a car, shutting the car door. Sergeant Van Arsdell got out of his car, and he and defendant walked toward each other. The sergeant asked, “What’s going on, dude[?]” Defendant replied, “How you doing[?]” In response to the sergeant’s question about defendant’s age, defendant stated he was an “old man.” The sergeant asked defendant if he had anything illegal on him, and when defendant said he did not, the sergeant asked if he could search defendant. Defendant consented to the search.
Defendant was holding a set of keys, and Sergeant Van Arsdell asked defendant to set them on the ground; the sergeant wanted defendant’s hands free so he could control defendant during a patdown search. Defendant reluctantly put the keys down after complaining that he was being harassed. The sergeant replied that he was not harassing defendant, but was just speaking with him. The sergeant believed that defendant was not going to comply, so the sergeant radioed for backup. Defendant never said the sergeant could not search him.
Sergeant Van Arsdell continued to question defendant during the three or so minutes before the other officers arrived. The sergeant asked defendant if he had any criminal history. Defendant first did not respond but then replied that he was on parole for spousal abuse. Defendant gave the sergeant a California identity card, and the sergeant ran a record check, which revealed defendant was on parole with “an armed and dangerous no bail hold violation warrant.” Defendant was then arrested. Another police officer searched defendant’s car.
Defendant testified that Sergeant Van Arsdell had his hand on his gun when the sergeant first approached. Defendant said he felt intimidated, and he did not feel free to leave. Defendant told the sergeant that his niece lived in the apartment complex and asked if he could go there, but the sergeant “shook his head no.” Defendant was on parole and was subject to search and seizure conditions.
The trial court found that the first contact was “not technically but actually relatively consensual in nature.” The sergeant acted properly in asking if defendant would agree to a search, and defendant had given his consent. At that point, the sergeant asked defendant to put his keys down for officer safety during the patdown. When defendant objected that the sergeant was “hassling” him, the sergeant requested backup. The sergeant properly asked defendant for identification and properly ran the record check, which revealed the parole hold. The trial court therefore denied the motion to suppress evidence.
3. Analysis
Defendant first contends he was detained when Sergeant Van Arsdell approached with his hand on his gun and asked defendant if he had anything illegal on him. In the alternative, defendant contends he was detained when the sergeant asked defendant to put his keys on the ground. The People counter that defendant was detained once the officers verified he was on parole.
A person is detained if “‘in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’” (Michigan v. Chesternut (1988) 486 U.S. 567, 573.) The Constitution does not prevent an officer from addressing questions to anyone on the streets: “As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.” (United States v. Mendenhall (1980) 446 U.S. 544, 554; accord, People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227.) Thus, “a [Fourth Amendment] seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ [citation], the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. . . . ‘Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a [person] may we conclude that a “seizure” has occurred.’” (Florida v. Bostick (1991) 501 U.S. 429, 434.)
Here, however, we need not even determine when or whether the police contact with defendant developed into a seizure or detention for purposes of the Fourth Amendment because the search of the vehicle and seizure of the gun took place after the police learned defendant was the subject of an outstanding warrant. In People v. Brendlin (2008) 45 Cal.4th 262 (Brendlin), a case decided after the People’s brief was filed but before defendant’s reply brief, the court held that when the defendant’s outstanding arrest warrant was discovered after an unlawful traffic stop but before the search of the defendant’s person or vehicle, the taint of the illegal seizure was dissipated, and evidence seized during the search need not be suppressed. (Id. at pp. 269-270.) Here, as in Brendlin, the evidence defendant sought to suppress was seized in a search of defendant’s vehicle after the police learned that defendant was the subject of an outstanding warrant. Thus, under Brendlin, the trial court would not have erred in denying the motion to suppress evidence even if an illegal detention had earlier taken place.
B. Denial of Romero Motion
Defendant contends the trial court abused its discretion by denying his motion to strike one or more prior strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). He argues that his current offense was not serious or violent, and there was an issue as to whether the firearm actually belonged to him. As we discuss below, defendant’s contention is completely meritless.
Although the car was registered to defendant, and a vehicle insurance card and other documents in defendant’s name were found in the car, defendant told an officer that he had bought the car for his son but had been using it himself for several months. He told the officer his son had used the car over the prior weekend and had picked it up on the Sunday before defendant’s arrest on a Monday morning.
1. Standard of Review
We review the trial court’s decision whether or not to strike a prior conviction under the abuse of discretion standard, and we overturn that decision only if it fell outside the bounds of reason under the applicable law and the relevant facts. (People v. Williams (1998) 17 Cal.4th 148, 162 (Williams).)
2. Additional Factual Background
Defendant was born in 1961. As a juvenile he had petitions sustained for receiving stolen property (Pen. Code, § 496); auto theft (Veh. Code, § 10851, subd. (a)), and burglary (Pen. Code, § 459.) The probation report indicates that defendant’s adult criminal history began in 1980 when he was convicted of a violation of Penal Code section 487. He was given 36 months’ probation with 180 days in jail, but in 1982 his probation was revoked. In 1984, defendant was convicted of misdemeanor violations of Health and Safety Code sections 11550, subdivision (b), and 11377, subd. (a); he received probation and jail stays for each of those offenses. In 1985, he was convicted of felony violations of Health and Safety Code sections 11360, subdivision (a) and 11377, subdivision (a), for which he received 36 months’ probation. In 1985, he was also convicted of violations of Penal Code sections 459 and 4502, for each of which he was sentenced to two years in prison. In 1991, he was convicted of violations of Penal Code sections 32 and 246, for which he was sentenced to nine years in prison.
In 2001, defendant was convicted of a misdemeanor violation of Penal Code section 647, subdivision (f), for which he received probation. In 2002, defendant was convicted of a violation of Penal Code section 273.5, subdivision (a), for which he was sentenced to four years in prison. Defendant was released on parole in February 2005. However, in June his parole was suspended, and in July he was declared a parolee at large.
In denying defendant’s Romero motion, the trial court stated, “Under the Williams analysis of the 3 strikes law, it is precisely the fact that his life has been constituted by acts of institutionalization would suggest [sic] that he continues to fall within the spirit of the 3 strikes law. He is a person, who for whatever reason has not been able to lead a crime free life. The Williams analysis, it appears to me applies in this particular case.”
3. Analysis
Under Romero and Penal Code section 1385, subdivision (a), the trial court has discretion to strike or vacate a prior conviction under the Three Strikes law “in furtherance of justice.” (Romero, supra, 13 Cal.4th at p. 532.) However, in determining whether to dismiss a prior felony conviction, the trial court must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (Williams, supra, 17 Cal.4th at p. 161.)
Defendant had six prior felony convictions, which included burglary, shooting at an occupied vehicle, and corporal injury on a spouse, as well as numerous misdemeanor convictions for drug offenses. He had been placed on probation numerous times, and he was on parole at the time of the offense. He had been to prison five times. Moreover, contrary to defendant’s contention, his “main violent crimes” were not “well in the past.” Rather, the most recent, corporal injury on a spouse, took place in 2002, and defendant was in prison for that crime until February 2005.
We therefore agree with the trial court that defendant was precisely the type of recidivist criminal to which the Three Strikes law was directed. In People v. Philpot (2004) 122 Cal.App.4th 893, this court explained, “Striking a prior serious felony conviction ‘“is an extraordinary exercise of discretion, and is very much like setting aside a judgment of conviction after trial.” [Citation.]’ [Citation.] Accordingly, such action is reserved for ‘[e]xtraordinary’ circumstances. [Citation.] This case, however, is far from extraordinary. Accordingly, given defendant's continuous criminal history, his parole violations, the seriousness of the present and past offenses, his seemingly dim prospects for rehabilitation, and his lack of meaningful crime-free periods, the court did not abuse its discretion in denying the Romero motion.” (Id. at p. 907.) This, likewise, was far from an extraordinary case. The trial court did not act irrationally or arbitrarily in denying the motion to strike a prior.
C. Custody Credits
Defendant contends the trial court erred in calculating custody credits because he should have received one-for-two custody credits under Penal Code section 4019 instead of the 20 percent credits the trial court awarded. The People concede error—defendant’s current offense was not serious or violent, and therefore section 4019 governed defendant’s custody credits. (People v. Hill (1995) 37 Cal.App.4th 220, 226-227.)
IV. DISPOSITION
The trial court is directed to prepare a new abstract of judgment reflecting defendant’s proper custody credits and to send the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: MCKINSTER, J., RICHLI, J.