Opinion
H035154
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. JORGE ENRIQUE MELGAREJO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC821959)
I. STATEMENT OF THE CASE
Defendant Jorge Enrique Melgarejo appeals from a judgment entered after he pleaded no contest to possession of methamphetamine for sale and possession of cocaine and admitted five prior drug-related convictions. (Health & Saf. Code, §§ 11378, 11350, subd. (a), 11370.2, subd. (c).) He claims the court erred in denying his motion to suppress evidence obtained in a search of his apartment. He also claims defense counsel rendered ineffective assistance in failing to base the motion on an alternative theory. Last, he claims he is entitled to a recalculation of presentence custody and conduct credits.
Also charged with the substantive offenses was codefendant Fernando Medina.
We affirm the judgment.
II. THE MOTION TO SUPPRESS
On September 25, 2008, at 11:58 a.m., San Jose Police received an anonymous 911 call. The reporting person said she saw two men with guns who were banging on the door of apartment seven at 34 Willow Street in San Jose. The caller said the men wore blue pants and black baseball caps, one was in a blue shirt, and the other in a white shirt. A few minutes later, the caller said that the men had left. The caller did not want to identify her apartment number. Officer David Lee of the San Jose Police Department received a dispatch about the report and arrived at the address within minutes. Additional officers also arrived. Some officers went immediately to apartment seven, knocked at the door, and cleared it of occupants. Officer Lee remained outside near the driveway of the apartment building. Minutes later, the caller reported that the disturbance was really at 30 Willow Street, which faces and shares a driveway with the building at 34 Willow. The caller declined to meet police because she was too scared but saw where the police were and said they were going to the right apartment. She reported that many people come and go from that apartment, and she suspected drug related activity.
While waiting outside, Officer Lee noticed an Hispanic man—defendant—in blue clothes and a blue baseball cap crouching beside a truck in the rear of the carport. Along with another officer, he ordered defendant to come out. Defendant complied, and Officer Lee frisked him for weapons. Finding no weapons, he asked defendant to sit down. Officer Lee explained that he matched the description of individuals possibly involved in an incident there and asked if defendant had seen anything or lived there. Defendant said that he had just arrived and lived at 30 Willow Street, apartment seven. Officer Lee asked for permission to enter the apartment to see if anyone inside was injured, needed aid, or knew about the apparently criminal activity that had been reported. Defendant said the apartment should be empty and gave permission and the key to enter. Officer Lee left him with two officers and headed for the apartment.
By that time, some other officers were there pounding on the door. There was no response. Officer Lee arrived, and police entered with the key. The living room was empty. Some officer checked the kitchen, and Officer Lee went down the hallway. At that point, codefendant Medina came out of a bedroom. Officer Lee detained and frisked him. A short time later, defendant was brought inside and seated next to Medina on the sofa to "find out what was going on in the apartment" and what they knew about it. Officer Lee again explained why police were there and requested permission from each to search the apartment for guns, drugs, and "anything illegal" or "any illegal activity." After speaking to each other for a few moments, defendant and Medina each gave permission.
Police searched the apartment. Inside a dresser drawer in a bedroom, they found mail addressed to defendant and other evidence that he resided there, electronic scales, cocaine, $720 in cash, three cell phones, plastic wrap, and two plastic bags containing over 200 grams of methamphetamine.
At the hearing on defendant's motion to suppress, Officer Lee testified that while on patrol, he received a dispatch about two armed Hispanic men trying to break into an apartment. He said the suspects were described as Hispanic males, one in blue pants, shirt, and baseball cap; the other in a white shirt. He said he detained defendant to determine whether he was involved because he matched the description, in that he was an Hispanic man dressed in blue clothes and cap.
Officer Lee acknowledged that his only source of information was the dispatch he heard over his radio, and he admitted that in the printout transcription of the dispatch, the caller does not identify the ethnicity of the two men. He explained that either he was mistaken or misheard the dispatcher or the transcription was inaccurate.
In moving to suppress, defendant claimed that his detention was unreasonable and tainted his consent and the evidence obtained in searching his apartment. The prosecutor claimed the detention was reasonable, and defendant's consent was given freely and voluntarily.
The court agreed with the prosecutor that the detention and consent were proper and valid. Accordingly, it denied the motion to suppress.
III. STANDARD OF REVIEW
" '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.]' [Citations.]" (People v. Redd (2010) 48 Cal.4th 691, 719, fn. omitted.)
IV. PROPRIETY OF THE DETENTION
Defendant contends that his initial detention in the carport was invalid because it was based on uncorroborated information from an anonymous 911 call that did not support a reasonable suspicion that defendant may have been involved in criminal activity. In support of his claim, defendant relies on Florida v. J.L. (2000) 529 U.S. 266 (J.L.).
The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 8-9.) "A seizure within the meaning of the Fourth Amendment occurs whenever an individual's liberty is restrained by the police, either by physical force or an assertion of authority, to which the individual submits, in circumstances in which a reasonable person would have believed he or she was not free to leave. [Citation.] Distinctions are drawn between 'detentions' and 'arrests,' since, although both are seizures under the Fourth Amendment, the constitutional standard for permissible detentions 'is of lesser degree than that applicable to an arrest.' [Citation.]" (People v. Hester (2004) 119 Cal.App.4th 376, 385-386.) "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; United States v. Cortez (1981) 449 U.S. 411, 412, 417.)
J.L., supra, 529 U.S. 266 involved an anonymous call about a young African-American man in a plaid shirt standing at a particular bus stop and carrying a gun. The high court held the tip insufficient to justify a brief detention and patdown search because there was no independent corroboration of the reliability of the tip and tipster's assertion of illegal conduct. (Id. at pp. 272-274.) As the court stated, "[a]ll the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J. L." (Id. at p. 271.) The high court stressed that the tip contained no "predictive information" (such as predicting the suspect's future behavior) that might demonstrate the tipster had inside information of concealed criminal activity. (Ibid.)
Defendant asserts that there was no corroboration of the anonymous 911 call, the caller said that the men were gone, defendant did not completely match the description of the suspects, and he was not armed. Accordingly, defendant argues that there was no more basis to suspect him of criminal activity than there was to suspect the defendant in J.L. We disagree.
In People v. Dolly (2007) 40 Cal.4th 458 (Dolly), an unidentified man called 911 to report an assault with a firearm. He described the perpetrator, the car he was parked in, and his location. (Id. at p. 462.) The caller said he did not want to talk to police when they arrived for fear of retaliation against him. (Ibid.)Police arrived at the scene a few minutes later and found a man who matched the tipster's description sitting in a car that also matched the description. (Ibid.) Police ordered the suspect to get out of his car, and a revolver was found under the front passenger seat. (Ibid.)
On these facts, the court held that, in light of the totality of the circumstances, the anonymous 911 call supplied reasonable suspicion to detain defendant. (Dolly, supra, 40 Cal.4th at p. 465.) In reaching this conclusion, the court considered several factors. First, threatening the 911 caller with a revolver posed "a grave and immediate risk" to the caller and to anyone nearby. (Ibid.) Second, there is no reason to believe that anonymous 911 calls about contemporaneous threats with a firearm are any more likely to be hoaxes than anonymous calls regarding reckless driving, which have been held to provide police with a reasonable suspicion to stop a vehicle. (Id. at p. 467.) Third, the caller provided a "firsthand, contemporaneous description of the crime as well as an accurate and complete description of the perpetrator and his location, the details of which were confirmed within minutes by the police when they arrived." (Id. at p. 468.) Fourth, the 911 caller provided a reasonable explanation for wanting to protect his anonymity. (Id. at p. 469.)
The facts in this case are much closer to Dolly than to J.L. Here, the caller reported seeing two armed men, who appeared to be trying to break into a nearby apartment. This information represented a potentially dangerous, emergency situation— an attempted burglary or home invasion robbery—unlike the call in J.L. that someone simply possessed a gun. And although the caller reported that the two men had left the apartment, the men were still armed and could have returned. Under the circumstances, immediate police investigation and intervention were appropriate and necessary.
Second, after the police arrived, the caller made a follow-up call telling the dispatcher that she saw the police, but they had gone to the wrong building. She gave the correct building number. This information implied that the caller was a conscientious neighbor attempting to help police prevent possibly criminal behavior. This is especially so given the caller's refusal to identify herself out of fear that something might happen to her. These circumstances further distinguish this case from J.L., where the caller did not provide any basis for knowing the information given to the police. And given the circumstances, police could confidently treat the call as credible and not a hoax.
Third, the caller provided a first-hand, contemporaneous description of whom she had seen, what she had just seen, and what was currently happening. She described the clothing the two men were wearing. One was wearing blue pants, a blue shirt, and a black baseball cap. Within a few minutes, Officer Lee spotted defendant crouching behind a truck in the carport of the very apartment building police had been summoned to. Defendant was wearing blue clothing and a baseball cap. Although the cap was blue and not black as reported, he fit the general description and was in the immediate area— indeed, the only person—shortly after the incident was reported. Detentions for further investigation have been upheld where police encounter a person close in time and location to a reported incident not only when the detainee generally conforms to a description of the suspect but also when there has been no description of the suspect. (E.g., People v. Conway (1994) 25 Cal.App.4th 385, 390; People v. Lloyd (1992) 4 Cal.App.4th 724, 733-734; People v. McCluskey (1981) 125 Cal.App.3d 220, 226-227; People v. Juarez (1973) 35 Cal.App.3d 631, 635; People v. Peralez (1971) 14 Cal.App.3d 368, 376.)
Finally, as in Dolly, the caller declined to identify herself, give her apartment number, or meet with police because she was too "scared" and did not want "any problems." Obviously, the caller feared possible retaliation from her neighbors if her call became known in the area.
In sum, we agree with the trial court's implicit conclusion that the circumstances rendered the anonymous call a sufficiently reliable source of information. Moreover, when the call is combined with Officer Lee's observation of defendant within minutes crouching behind a truck in the carport of the apartment building in question and generally matching the caller's description, the totality of the circumstances support a reasonable suspicion that defendant may have been one of the individuals the caller saw trying to break into the apartment. This suspicion justified Officer Lee's decision to detain defendant to confirm or dispel his suspicion.
Defendant argues that Dolly was wrongly decided because it conflicts with J.L., and for that reason, he urges us to reject Dolly in analyzing the propriety of the detention. The short answer to defendant's argument is that we may not reject Dolly because we think it was wrongly decided; rather, we are bound to follow it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that defense counsel rendered ineffective assistance in failing to argue that (1) if the detention was lawful to begin with, it was improperly and unduly prolonged in violation of defendant's Fourth Amendment rights; and (2) the drugs found during a subsequent search were the tainted fruit of his unduly prolonged detention. (See People v. McGaughran (1979) 25 Cal.3d 577, 586 [reasonable detention may become unreasonable if extended beyond what is reasonably necessary to resolve suspicion of criminal conduct].)
To obtain reversal due to ineffective assistance, a defendant must first show "that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney[.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Strickland v. Washington (1984) 466 U.S. 668, 688.) Because the defendant bears this burden, "[a] reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Moreover, where the record on direct appeal "does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.) Under such circumstances, claims of ineffective assistance are generally rejected on direct appeal and more properly raised in a petition for habeas corpus, which can include declarations and other information outside the appellate record that reveal the reasons for the challenged conduct. (People v. Mayfield (1993) 5 Cal.4th 142, 188 ["tactical choices presented on a silent record" are "better evaluated by way of a petition for writ of habeas corpus" and will be rejected on direct appeal].)
Here, the record does not reveal counsel's reasons for not alternatively arguing that the evidence must be suppressed because it was the product of an unduly prolonged detention. Moreover, the record does not establish as a matter of law that counsel could not have had a sound tactical reason for not pursuing that theory.
Defendant argues that once Officer Lee was satisfied that defendant did not have a gun and had a legitimate reason for being in the carport—i.e., was not one of the persons trying to get into the apartment—and, after the initial search pursuant to defendant's consent revealed that there were no hostages or injured people in the apartment, there was no further basis to detain him. Under the circumstances, his continued detention to bring him into the apartment where Medina was being detained impermissibly prolonged his detention. He claims that the prolonged detention tainted the subsequent search of the apartment and the evidence that the police discovered.
Defendant does not claim the consent he gave in the carport was invalid.
In the carport, defendant said that no one should be in the apartment and gave consent and the key to search it. However, the police encountered Medina inside. The Attorney General argues, and we agree, that given defendant's statement that no one should have been there, it was reasonable for the police to bring defendant inside to determine whether defendant knew Medina and whether he was properly inside the apartment. Once inside the apartment, defendant implicitly vouched for Medina, and both then gave consent to search.
Under these circumstances, counsel reasonably could have concluded that asserting the theory of a prolonged detention would be unsuccessful because the detention was not unduly prolonged.
Moreover, even if the detention arguably was unduly prolonged, counsel reasonably could have concluded that the motion to suppress would still fail.
The United States Supreme Court has explained that "not . . . all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' " (Wong Sun v. United States (1963) 371 U.S. 471, 487-488; United States v. Ceccolini (1978) 435 U.S. 268, 276 [not all evidence obtained through a chain of causation that began with illegal police activity must be suppressed].) " 'The degree of attenuation that suffices to dissipate the taint "requires at least an intervening independent act by the defendant or a third party" to break the causal chain in such a way that the second confession is not in fact obtained by exploitation of the illegality.' [Citations.]" (People v. McWhorter (2009) 47 Cal.4th 318, 360.)
Even if defendant's consent to search were tainted by his unduly prolonged detention, it is undisputed that codefendant Medina separately and independently gave his consent to search.
It is settled that Fourth Amendment rights are personal, and therefore, defendant could not seek to suppress evidence on the ground that it was obtained in violation of Medina's Fourth Amendment rights. (People v. Letner (2010) 50 Cal.4th 99, 213.) Moreover, the record does not establish that Medina's detention was unlawful or that his consent to search was not independent, knowing, and voluntary.
Defendant argues that "but for" his unduly prolonged detention, Medina would not have given his consent because the police would have had no basis to ask Medina for permission to search. However, "but for" chronological causation is not the test to determine whether a primary illegality taints evidence that police later obtain. The question is whether police exploited defendant's allegedly prolonged detention to obtain Medina consent to the search.
The record does not support such a finding. Medina was detained before he knew that defendant had been detained. When defendant and the police came into the apartment, defendant was not in handcuffs or otherwise under arrest, and there is no evidence to suggest that Medina thought defendant was under arrest or had implicated either of them in criminal activity. Police then explained why they wanted to continue searching, and both independently gave consent. There is no evidence Medina thought he had to give consent. Nor is there evidence to suggest that Medina would not have given consent had he known that defendant's consent might have been tainted or involuntary. Although the two men briefly spoke to each other before consenting, the record does not reveal what they said. Accordingly, there is no evidence to support a finding that defendant urged Medina to give consent or that Medina would not have given his consent if defendant had not also consented or if defendant had refused consent. In short, the record does not established that Medina's ostensibly separate and voluntary consent was inextricably bound up with defendant's allegedly prolonged detention. The record reveals only that Medina independently gave his consent.
Under the circumstances, counsel reasonably could have concluded that a fruit-of-the-poisonous-tree theory based on defendant's prolonged detention would fail because Medina's consent was voluntary and represented a separate, intervening, and independent act that broke the causal chain between defendant's allegedly prolonged detention and the search of the apartment pursuant to consent. (See, e.g., U.S. v. Parker (7th Cir. 2006) 469 F.3d 1074, 1078-1079; U.S. v. Meece (2009) 580 F.3d 616, 619-620; cf. People v. Sanchez (1981) 116 Cal.App.3d 720, 729 [defendant's own voluntary consent constituted independent, intervening act].)
In short, defendant has failed to demonstrate that counsel's failure to argue prolonged detention was an unreasonable omission as a matter of law. Accordingly, we reject his claim of ineffective assistance of counsel.
Defendant also complains that defense counsel rendered ineffective assistance in failing to make an offer of proof concerning the testimony of a witness that he intended to call on defendant's behalf but who did not appear. However, in the absence of any information about the testimony the witness would have given, it is impossible to determine whether counsel's omission was prejudicial. For that reason, we need not discuss this complaint further.
VI. RECALCULATION OF PRESENTENCE CUSTODY WORK AND CONDUCT CREDIT
In this section, all unspecified statutory references are to the Penal Code.
Defendant contends that he is entitled to the benefit of a change in section 4019 that increased the amount of presentence work and conduct credit to which a criminal defendant is entitled even though he was sentenced before January 25, 2010, when the changes in the law became effective.
Section 4019 permits a criminal defendant to earn additional presentence credit for work time and for good behavior. (§ 4019, subds. (b) & (c).) Such credits are collectively referred to as " '[c]onduct credits.' " (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Senate Bill No. 18 (2009-2010 3d Ex.Sess.) amended section 4019, effective January 25, 2010, to enhance the number of presentence conduct credits for certain offenders. (Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28, § 50.) The formula in place for calculating credits under section 4019 in September 2009 when the court suspended imposition of sentence and placed defendant on probation was that a defendant could accrue presentence conduct credit of two days for every six days of actual presentence custody (former § 4019, subds. (b) & (c)); under the new formula provided in Senate Bill No. 18, a qualifying defendant may accrue conduct credit of four days for every four days of presentence custody (§ 4019, subds.(b)(1), (c)(1)).
We note that section 4019 was amended again effective September 28, 2010, to return to the accrual rate for presentence credits in effect prior to January 25, 2010. The latest statutory change will apply only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) This case involves the changes to the statute that became effective on January 25, 2010.
There is a conflict among the courts of appeal concerning whether the amended version of section 4019 applies prospectively from January 25, 2010, or retrospectively to all cases not yet final on that date. As the parties recognize, the California Supreme Court has granted review to resolve the conflict. (See People v. Brown (2010) 182 Cal.App.4th 1354, 1363-1365, review granted Jun. 9, 2010, S181963 [Third Appellate District held that amendment was retroactive]; People v. Rodriguez (2010) 183 Cal.App.4th 1, 13-14, review granted Jun. 9, 2010, S181808 [Fifth Appellate District held that amendment was prospective only]; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted Jul. 28, 2010, S183724 [Sixth Appellate District held that amendment was prospective only].)
Defendant raises the same claims that have been raised in the numerous cases before this court and the other courts of appeal. Relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada),defendant argues that section 3, which provides that no penal statute is retroactive "unless expressly so declared," is inapplicable because one can infer that the Legislature intended the amendment to apply retrospectively from both the lack of a savings clause and an uncodified provision of the amendment. Citing In re Kapperman (1974) 11 Cal.3d 542 (Kapperman ) and People v. Sage (1980) 26 Cal.3d 498 (Sage), defendant argues that prospective application of the law would result in a violation of his right to equal protection. He further argues that the cases holding that the amendment applies prospectively only were wrongly decided.
We have previously rejected these arguments, and until we receive guidance from the Supreme Court, we adhere to our view that the Legislature did not intend the January 2010 amendments to apply retroactively.
Estrada, supra, 63 Cal.2d 740, held that an amendatory statute lessening punishment " 'represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law,' " and that, in such cases, the section 3 presumption of prospective application is rebutted. (Id. at p. 745.) However, the amendment to section 4019 was enacted in order to address the state's fiscal emergency, as proclaimed by Governor Schwarzenegger in December 2008. (Stats. 2009, 3d Ex.Sess., ch. 28, § 62.) Increasing the amount of credits available to certain inmates will reduce the prison population resulting in reduced costs to the state. This goal does not reflect a legislative determination that the original punishment for any particular crime was too severe. Thus, Penal Code section 4019 does not provide the necessary " 'clear and unavoidable implication negat[ing] the presumption [of prospective operation],' " set forth in section 3. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208.)
Concerning defendant's equal protection claim, we do not find Kapperman, supra, 11 Cal.3d 542 or Sage, supra, 26 Cal.3d 498 to be applicable. Kapperman held that an express prospective limitation upon the statute creating presentence custody credits was a violation of equal protection because there was no legitimate purpose to be served by excluding those already sentenced. (Kapperman, supra, 11 Cal.3d at pp. 544-545.) Kapperman is distinguishable because it addressed actual custody credits, not conduct credits. Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served.
Similarly, Sage is inapposite because it involved a prior version of section 4019, which allowed presentence conduct credits to misdemeanants but not felons. (Sage, supra, 26 Cal.3d at p. 508.) The California Supreme Court found that there was no "rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons." (Ibid., fn. omitted.)
The purported equal protection violation at issue here is temporal rather than based on the defendant's status as a misdemeanant or felon. One of section 4019's principal purposes, both as formerly written and as amended, is to motivate good conduct. Defendant and those similarly situated to him whose sentencing occurred prior to the January 2010 amendment cannot be further enticed to behave themselves during their presentence custody. The fact that a defendant's conduct cannot be influenced retroactively provides a rational basis for the Legislature's implicit intent that the amendment only apply prospectively. In other words, the principal purpose of section 4019 is to motivate good conduct. A defendant's past conduct cannot be motivated retroactively. This is a rational basis for applying the amendments prospectively only.
In short, defendant's arguments do not persuade us that the amendments apply retroactively or that our view that they apply prospectively is erroneous. Accordingly, we reject defendant's claim.
VI. DISPOSITION
The judgment is affirmed.
RUSHING, P.J. WE CONCUR:
PREMO, J.
ELIA, J.