Opinion
C076735
04-11-2017
THE PEOPLE, Plaintiff and Respondent, v. LINO JOSE MEDINA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F02502)
After the trial court denied a motion to suppress evidence brought by defendant Lino Jose Medina, defendant pleaded no contest to possession of a firearm by a felon. The trial court subsequently denied defendant's motion to withdraw his plea, suspended imposition of sentence, and placed defendant on probation for five years.
Defendant now contends (1) the trial court erred in denying his motion to suppress evidence because the initial encounter between defendant and the police was an illegal detention, not a consensual encounter; (2) the trial court abused its discretion in denying his motion to withdraw his no contest plea because the City Attorney produced a supplemental police report two days after he entered the plea and he could have used the report to impeach a witness at the hearing on his suppression motion; and (3) if the Attorney General argues defendant's second contention is forfeited for failure to raise it in the trial court, defendant's trial counsel provided ineffective assistance.
We conclude (1) the trial court did not err in denying defendant's motion to suppress evidence because the initial police contact with defendant was a consensual encounter; (2) defendant fails to show that he demonstrated good cause to withdraw his no contest plea by clear and convincing evidence and that the belated disclosure of the supplemental police report prejudiced him; and (3) we do not address defendant's ineffective assistance claim because the Attorney General did not argue forfeiture.
We will affirm the judgment.
BACKGROUND
Defendant was charged with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1) -- count one) and possession of ammunition or reloaded ammunition by a person prohibited from owning or possessing a firearm (§ 30305, subd. (a)(1) -- count two). He moved to suppress all evidence obtained during the warrantless search of his person and room and any statements he made to police. The following facts are drawn from testimony given at the hearing on defendant's suppression motion.
Undesignated statutory references are to the Penal Code. --------
Sacramento Police Officers Andy Hall, Marcel Loriaux and other officers went to the residence of David Diaz to conduct a post-release community service (PRCS) search. Diaz lived with his brother (defendant), their parents, and defendant's niece. The officers arrived at the house in three patrol cars. Officer Loriaux was in uniform. Officer Hall was in plain clothes but wore a police tactical raid vest.
There were two cars parked in the driveway of the house. Defendant was seated in a chair propped against the closed garage door. Defendant's parents were next to defendant.
Diaz was informed the officers were there to conduct a "probation search" on him. But Diaz was not on PRCS supervision at the time. He repeatedly told the officers he was no longer on probation and to contact his probation officer, but the officers insisted Diaz was searchable. The officers searched Diaz and placed him in a patrol car.
Officer Loriaux approached defendant. He recognized defendant as a participant in a prior gang fight incident involving knives. Although he had no reason to believe defendant was involved in a crime on the day of the search, Officer Loriaux asked defendant if he could pat defendant down for weapons. Officer Loriaux did that because he believed defendant was a validated Sureño gang member or associated with the Sureño gang, gang members carried weapons, and defendant was previously involved in a gang fight. Officer Loriaux did not draw his gun when he asked defendant for permission to conduct the patdown.
Defendant agreed to the patdown, but asked that Officer Loriaux search him away from his parents. When Officer Loriaux asked why defendant wanted to move away from his parents and whether defendant had something he should not have, defendant responded that he had a "pocket gun" on him. Defendant stood up without direction from the officer. Officer Loriaux and defendant then moved to the other side of the cars parked on the driveway. Officer Loriaux placed defendant in handcuffs, patted him down, detected a handgun in defendant's right front pocket, and removed the gun from the pocket. Officer Loriaux searched defendant further and found a holster in defendant's back left pants pocket containing a magazine with five live rounds. Officer Loriaux placed defendant in a patrol car.
Officer Hall asked defendant for permission to search his room while defendant was sitting in the patrol car. Defendant initially refused, but later agreed as long as his sister could observe the search. Officer Hall searched defendant's room and found four boxes of .22-caliber ammunition containing approximately 150 rounds.
Defendant testified at the suppression hearing. He said Officer Loriaux approached him after Diaz had been placed in handcuffs. Defendant did not see any guns drawn. According to defendant, Officer Loriaux said to defendant, "I'm going to search you. Stand up. Get your hands behind your head, and spread your legs." Defendant did not protest because he did not want a charge for resisting arrest. Defendant said he felt he could not say no or walk away from the house because the police had surrounded the house. He said he "was gonna get searched no matter what." He asked Officer Loriaux to search him away from his parents because he did not know how the officer would react to the handgun in his pocket and he was afraid his parents would be hurt if something were to happen.
Defense counsel argued defendant was detained at the time of the initial contact by Officer Loriaux and the detention was not justified because Diaz was not subject to a search condition. The prosecutor countered that the initial contact between Officer Loriaux and defendant was a consensual encounter, defendant consented to the search of his person and room, and the officers had probable cause to arrest defendant following the search of his person and room. According to the prosecutor, the encounter between Officer Loriaux and defendant became a detention only after defendant disclosed he had a gun.
The trial court denied the motion to suppress without stating its reasoning. Following a recess, defense counsel announced that the parties had reached a resolution. Defendant would plead no contest to possession of a firearm by a felon and the People would move to dismiss count two. Defendant would be placed on probation with 300 days in county jail and 152 days of credit, and he would be released that day. The trial court confirmed with defendant that defendant had spoken with his attorney about the charges, the defenses in the case, his rights, and the consequences of the no contest plea, that defendant understood those things, and that defendant wanted to plead no contest. Defendant pleaded no contest to the count one charge. He affirmed that he entered the plea freely and voluntarily after having discussed the matter with his counsel. The trial court accepted the plea, finding the plea was voluntary and that there was a factual basis for the plea.
Two days after defendant entered the no contest plea, the City Attorney produced a supplemental police report that had been previously prepared by Officer Hall. The report had not been sent to the District Attorney and had not been previously disclosed to the defense. The report said defendant told Officer Hall defendant was a gang member. But the in-car camera recording of the interview between Officer Hall and defendant, which had been disclosed to defendant before entry of the no contest plea, established that defendant did not make such a statement to Officer Hall.
Prior to sentencing, defendant filed a motion to withdraw his plea. He argued his plea was not voluntary for various reasons, including that the failure to disclose the supplemental report denied him the opportunity to impeach Officer Hall at the suppression hearing. The People opposed the motion, arguing defendant could have impeached Officer Hall at the suppression hearing because the officer testified defendant was a gang member but the in-car camera recording, which defendant had at the time of the suppression hearing, indicated defendant informed the officer he was not a gang member. (We note, however, that Officer Hall did not so testify. It was Officer Loriaux who testified about defendant's gang membership.) The prosecutor also argued the supplemental police report did not contain evidence favorable to defendant and under the ruling in People v. Breslin (2012) 205 Cal.App.4th 1409 (Breslin), evidence discovered after entry of a guilty plea did not constitute good cause to withdraw a plea.
The trial court denied defendant's motion to withdraw his plea without stating the reason for its ruling. We presume the trial court did not rely on the prosecutor's incorrect assertion about Officer Hall's testimony. (People v. Giordano (2007) 42 Cal.4th 644, 666 ["On appeal, we presume that a judgment or order of the trial court is correct, ' "[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." ' "].) The trial court suspended imposition of sentence and placed defendant on probation for five years with various terms and conditions, including that he serve 300 days in county jail. It dismissed count two in the interests of justice.
DISCUSSION
I
Defendant contends the trial court erred in denying his motion to suppress evidence because the initial encounter between defendant and the police was an illegal detention, not a consensual encounter.
In reviewing a ruling on a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling. (People v. Miranda (1993) 17 Cal.App.4th 917, 922.) If there is conflicting testimony, we must accept the trial court's resolution of disputed facts and inferences and its evaluations of credibility. (People v. Zamudio (2008) 43 Cal.4th 327, 342 (Zamudio).) We defer to the trial court's factual findings, whether express or implied, when supported by substantial evidence, and we independently determine whether the facts of the challenged search and/or seizure violated the defendant's Fourth Amendment rights. (Ibid.; People v. Lomax (2010) 49 Cal.4th 530, 563 (Lomax).)
Challenges to the admissibility of evidence obtained by a police search and seizure are reviewed under federal constitutional standards. (Lomax, supra, 49 Cal.4th at p. 564, fn. 11.) The Fourth Amendment to the United States Constitution protects an individual's right to be secure in his or her person against unreasonable searches and seizures. (See Terry v. Ohio (1968) 392 U.S. 1, 8-9 [20 L.Ed.2d 889, 898-899].) There are three categories of police encounters for purposes of Fourth Amendment analysis: (1) consensual encounters that result in no seizure and may properly be initiated by police officers even if they lack objective justification for the contact; (2) detentions, which constitute seizures under the Fourth Amendment, and require an objectively reasonable suspicion that the person to be contacted has committed or is about to commit a crime; and (3) formal arrests or comparable restraints on an individual's liberty, which require probable cause to arrest the individual for a crime. (In re Manuel G. (1997) 16 Cal.4th 805, 821; Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 (Wilson).)
"Where, as here, the prosecution relies on consent to justify a warrantless search or seizure, it bears the 'burden of proving that the defendant's manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. [Citation.]' [Citation.] Consent that is the product of an illegal detention is not voluntary and is ineffective to justify a search or seizure. [Citations.] [¶] . . . [¶] Under these principles, the threshold issue here is whether defendant was detained when he gave consent." (Zamudio, supra, 43 Cal.4th at p. 341; see People v. Gallant (1990) 225 Cal.App.3d 200, 211 (Gallant).)
A person is detained, for Fourth Amendment purposes, when, " ' "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave" [citation].' [Citation.] '[W]hen a person "has no desire to leave . . . " for reasons unrelated to the police presence, the "coercive effect of the encounter" can be measured better by asking whether "a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter . . . " [citations].' [Citation.]" (Zamudio, supra, 43 Cal.4th at p. 341.) We assess the coercive effect of police conduct as a whole. (In re Manuel G., supra, 16 Cal.4th at p. 821.) "Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer's display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer's request might be compelled." (Ibid.) "The test is 'objective,' not subjective; it looks to 'the intent of the police as objectively manifested' to the person confronted. [Citation.] Accordingly, an 'officer's uncommunicated state of mind and the individual citizen's subjective belief are irrelevant . . . .' " (Zamudio, supra, 43 Cal.4th at p. 341.)
Officer Loriaux and defendant presented drastically different accounts of what happened during their initial contact. Officer Loriaux testified he asked defendant if he could pat defendant down for weapons, and defendant said yes. According to defendant, however, Officer Loriaux said he was going to search defendant, and he directed defendant to stand up, put his hands behind his head, and spread his legs. The trial court impliedly accepted Officer Loriaux's account when it denied defendant's suppression motion. We are bound by the trial court's evaluations of witness credibility. (Zamudio, supra, 43 Cal.4th at p. 342; Wilson, supra, 34 Cal.3d at p. 780.)
Under the circumstances described by Officer Loriaux, defendant was not detained when Officer Loriaux first approached him or when defendant consented to the patdown search and disclosed he had a gun. Although there were other officers on scene, their purpose was to make contact with Diaz, which they did before Officer Loriaux approached defendant. There is no evidence that any officer other than Officer Loriaux contacted defendant, and no evidence that, prior to the patdown, Officer Loriaux touched defendant, drew his gun, communicated that defendant could not leave, indicated that defendant had to submit to the officer's request, or indicated that Officer Loriaux suspected defendant of wrongdoing. (Contra, Wilson, supra, 34 Cal.3d at pp. 790-791; People v. Garry (2007) 156 Cal.App.4th 1100, 1111-1112; Gallant, supra, 225 Cal.App.3d at pp. 204, 207.) The circumstances Officer Loriaux described do not constitute a show of authority that would have conveyed to a reasonable person that he was not free to refuse the officer's request. "Approaching a person, requesting to speak with him, [and] asking for permission to search him . . . do not transform an otherwise consensual encounter into a detention." (People v. Coulombe (2000) 86 Cal.App.4th 52, 57, fn. 3; see In re Manuel G., supra, 16 Cal.4th at p. 822; People v. Franklin (1987) 192 Cal.App.3d 935, 941.) Defendant consented to the patdown and stood up without direction from Officer Loriaux. There is also no indication that the initial encounter with defendant -- before he consented to the patdown and said he had a gun -- was prolonged. (Contra, In re J.G. (2014) 228 Cal.App.4th 402, 411 .)
Officer Loriaux was not required to inform defendant he had a right to refuse to speak with the officer or to refuse his request for a search. (Zamudio, supra, 43 Cal.4th at p. 346.) No presumption of invalidity attaches if a defendant consents without explicit notification that he was free to refuse to cooperate with the police. (Ibid.) Officer Loriaux's uncommunicated beliefs about defendant's gang membership or possession of weapons and defendant's subjective beliefs about the officers' intent are not relevant to our inquiry whether the initial contact with defendant was a consensual encounter or a detention. (Id. at p. 341.)
Defendant points to Diaz's protests that he was no longer on PRCS, but there is no evidence defendant heard any conversation between Diaz and the officers and no indication any such comments influenced defendant's conclusions regarding whether he was free to leave or whether he should consent to the patdown and disclose that he had a gun.
Defendant agreed to the patdown and asked that it be conducted away from his parents. Officer Loriaux's question about why defendant wanted to move away from his parents and whether defendant had something he should not have did not transform what was a consensual encounter into a detention. At that point defendant admitted he had a gun. The admission created a reasonable suspicion justifying his subsequent detention and the patdown that led to the discovery of a handgun in his pocket. (Terry v. Ohio, supra, 392 U.S. at p. 27 .)
The trial court did not err in denying defendant's suppression motion. We need not address defendant's challenge to the search of his room because that claim is premised on his assertion that he was unlawfully detained by Officer Loriaux.
II
Defendant also contends the trial court abused its discretion in denying his motion to withdraw his no contest plea because the City Attorney produced a supplemental police report two days after he entered his plea, and the supplemental report could have been used to impeach Officer Hall during the hearing on his motion to suppress evidence.
The granting of permission to withdraw a plea of guilty is a matter within the sound discretion of the trial court. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796 (Giron).) " ' "Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged." [Citation.]' " (People v. Archer (2014) 230 Cal.App.4th 693, 702 (Archer).) We will not disturb the trial court's decision to deny a motion to withdraw a guilty plea unless the defendant has demonstrated a clear abuse of discretion. (Ibid.)
Section 1018 provides, in pertinent part, "On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice." A no contest plea is treated the same as a guilty plea under section 1018. (People v. Ramirez (2006) 141 Cal.App.4th 1501, 1506 (Ramirez).) A defendant seeking to withdraw his or her no contest plea under section 1018 must demonstrate good cause to withdraw the plea by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566; Archer, supra, 230 Cal.App.4th at p. 702; Breslin, supra, 205 Cal.App.4th at pp. 1415-1416.) The defendant must show that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud, or duress. (Giron, supra, 11 Cal.3d at p. 797; Archer, supra, 230 Cal.App.4th at p. 702.) Conclusory allegations of confusion or lack of understanding will not suffice. (Cruz, supra, 12 Cal.3d at pp. 564, 566-567; People v. Urfer (1979) 94 Cal.App.3d 887, 892-893.) And the defendant may not withdraw a plea merely because he or she has changed his or her mind. (Archer, supra, 230 Cal.App.4th at p. 702.)
Defendant failed to present any evidence in support of his motion to withdraw his no contest plea. No declaration accompanied his motion and no testimony was presented at the hearing on his motion. On this record, no error appears because defendant did not prove good cause to withdraw his plea by clear and convincing evidence. No abuse of discretion appears in any event based on defendant's assertions.
The suppression of favorable evidence by the prosecution is an extrinsic cause which may overcome the exercise of the defendant's free judgment and constitute good cause for withdrawal of a plea. (Ramirez, supra, 141 Cal.App.4th at p. 1506; People v. Dena (1972) 25 Cal.App.3d 1001, 1009 (Dena).) In Ramirez and Dena, the prosecutor failed to disclose, before the defendant changed his plea to guilty or no contest, evidence in the prosecutor's possession that was favorable to the defendant. (Ramirez, supra, 141 Cal.App.4th at pp. 1504-1505; Dena, supra, 25 Cal.App.3d at pp. 1006-1007.) Here, the prosecution did not have the supplemental police report before defendant entered his no contest plea. There is no assertion or evidence that the prosecution knew about the supplemental police report before defendant pleaded no contest.
In addition, defendant does not assert that he would not have accepted the plea bargain if he had known of the supplemental report by Officer Hall. (Contra, Ramirez, supra, 141 Cal.App.4th at p. 1508 [finding prejudice because earlier discovery of supplemental police report would have affected the defendant's decision to enter a plea bargain]; Dena, supra, 25 Cal.App.3d at p. 1009 [defense counsel would not have advised the defendant to enter a plea of guilty if he had been aware of the information the deputy district attorney had suppressed].) Defendant asserts instead that if the supplemental police report had been provided earlier, he would have used it (1) to challenge any claim that Officer Hall acted in good faith in contacting Diaz based on Diaz's PRCS status, and (2) to impeach Officer Hall during the suppression hearing. As for the good faith challenge, the prosecution did not make such a good faith claim. Defendant argued in the trial court that the detention of defendant could only be justified if Diaz was on PRCS and was searchable. But the prosecution did not oppose defendant's suppression motion based on Diaz's status. (Breslin, supra, 205 Cal.App.4th at p. 1416 [defendant must show prejudice].) Thus, regarding impeachment, other than a potential claim of good faith pertaining to Diaz's PRCS status, defendant does not identify any portion of Officer Hall's testimony which defendant would have sought to impeach with the supplemental police report. Defendant does not establish that he would have prevailed on his motion to suppress evidence if he had impeached Officer Hall at the suppression hearing.
Unlike the evidence that directly relates to the defendants' guilt or innocence in Ramirez and Dena, the new evidence in this case relates to impeachment of a witness who did not participate in the initial contact with defendant. (Ramirez, supra, 141 Cal.App.4th at pp. 1504-1505; Dena, supra, 25 Cal.App.3d at pp. 1006-1007.) "It is particularly difficult to characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant." (United States v. Ruiz (2002) 536 U.S. 622, 630 [153 L.Ed.2d 586, 595-596].)
Defendant fails to show that the belated disclosure of the supplemental police report was a " 'factor overcoming the exercise of his . . . free judgment' " when he pleaded no contest or that the late disclosure prejudiced him. (Archer, supra, 230 Cal.App.4th at p. 702.) The trial court did not abuse its discretion in denying his motion to withdraw his no contest plea.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
DUARTE, J.