Opinion
G057263
05-26-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA MICHAEL PETERS, Defendant and Appellant.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Ivan Ivri and Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18HF0869) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary M. Pohlson, Judge. Affirmed in part, reversed in part, and remanded. David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Ivan Ivri and Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant was convicted of possession for sale of a controlled substance (heroin) (Health & Saf. Code, § 11351; count 1), possession for sale of a controlled substance (methamphetamine) (Health & Saf. Code, § 11378; count 2), and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 3). It was found to be true that defendant suffered a prison prior pursuant to Penal Code section 667.5, subdivision (b). He was sentenced to the middle term of two years in county jail on count 1, a concurrent term of two years on count 2, plus an additional year for the prison prior, for a total sentence of three years. Pursuant to Penal Code section 1170, subdivision (h)(5), the sentence was split, two years of which were to be served in Orange County jail, and one year of mandatory supervision thereafter.
Defendant raises two issues on appeal. First, he contends he was detained without reasonable suspicion and thus all of the evidence against him should have been suppressed. We disagree that he was detained. His encounter with law enforcement was consensual. Second, he contends the evidence at the preliminary hearing did not support count 1, possession of heroin for sale. We agree with that contention and reverse as to count 1.
FACTS
The People filed a felony complaint against defendant charging two counts: possession of methamphetamine for sale, and possession of paraphernalia. As we explain below, the charge of possession of heroin for sale was added after the preliminary hearing.
Prior to the preliminary hearing, defendant filed a Penal Code section 1538.5 motion to suppress all of the evidence recovered pursuant to a search of his person, which was essentially all of the pertinent evidence against him. An evidentiary hearing was held on that motion in combination with the preliminary hearing. Because the issues on this appeal turn largely on the evidence presented at the preliminary hearing, we begin there.
Deputy Miller of the Orange County Sheriff's Department was patrolling an area of Rancho Santa Margarita at approximately 7:05 p.m. in June of 2018. He was in full uniform, driving a marked vehicle. He observed defendant walking around in an apartment complex. Although defendant had not committed any wrongdoing, Deputy Miller performed a U-turn and pulled into the apartment complex. Deputy Miller was not familiar with defendant from any prior investigation. Deputy Miller navigated through the parking lot looking for defendant.
When he located defendant, Deputy Miller got out of his police vehicle and approached him. He calmly asked defendant his name and if he lived in the area. Defendant gave his name and replied that he used to live in the area. Deputy Miller then asked if defendant was on probation or parole. Defendant replied, untruthfully, as it turns out, that he was not. Deputy Miller then asked if he could see defendant's identification. Defendant handed it over. Deputy Miller then asked defendant, "is it cool if you sit on the front of my car," while he performed a records check, which defendant did. Deputy Miller asked defendant to put his backpack down beside the vehicle. Deputy Miller's tone was calm throughout. Deputy Miller was alone at the time.
Within a few minutes, Deputy Miller determined defendant was on probation with a search condition. At that point he called for backup to assist in searching defendant. Three additional officers arrived. Defendant was placed under arrest and handcuffed. The entire encounter up to this point lasted approximately six minutes.
At the hearing, the court ruled that up to the point where defendant was determined to be on probation, the encounter was consensual, and defendant was not detained. Consequently, the court denied the section 1538.5 motion.
The preliminary hearing continued with the testimony of Orange County Sheriff's Deputy Daniel Parker. Deputy Parker was one of the deputies that arrived in response to Deputy Miller's request for backup. Deputy Parker had training on identifying methamphetamine and heroin. He had participated in approximately 25 investigations involving the personal use of heroin.
Deputy Parker testified that he searched defendant and found a needle, approximately 10 grams of methamphetamine, and approximately $3,500 in cash. Deputy Parker then searched defendant's backpack and found a roll of tinfoil, approximately 15 balloons, a scale, and "there was approximately three tinfoils that had what I believe to be heroin." Also in the backpack, he found a butane lighter, two cellphones, two knives with a brown sticky substance on them, a metal spoon with cotton stuck in the middle of it, and six plastic straws with burnt ends. Deputy Parker recognized the straws as "tooters," which are used to inhale narcotics. Deputy Parker used defendant's scale to weigh the methamphetamine. He did not weigh the heroin.
Deputy Parker expressed an opinion that the methamphetamine was possessed for sale based on the quantity (10 grams compared to a normally daily use of 0.3 grams), the presence of balloons which are often used for packaging drugs, and the amount of cash defendant had. He was not asked to express an opinion concerning heroin.
The magistrate held defendant to answer on the two charges then pending—possession of methamphetamine for sale, and possession of paraphernalia. The People filed an information with only those two charges. Three months later, the People filed an amended information that added a new count 1: possession of heroin for sale. That prompted a motion by defendant to set aside the information on the ground that the evidence from the preliminary hearing did not support a charge of possession of heroin for sale. The court denied the motion.
At trial, the People presented evidence that the three tinfoil bindles each contained approximately 0.25 grams of heroin. One of the cell phones from defendant's backpack had text messages consistent with drug sales, and heroin in particular. Of particular relevance, text messages from around the time defendant was arrested suggested he was at the apartment complex to sell heroin to someone named Austin. An expert opined that defendant possessed the heroin for sale.
DISCUSSION
Defendant raises two issues on appeal. First, he contends he was unlawfully detained and all of the evidence used against him was the fruit of the poisonous tree. Second, he contends the court should have dismissed count 1, possession of heroin for sale, because the evidence from the preliminary hearing did not support the charge. We address each contention in turn.
Defendant Was Not Detained
The Fourth Amendment prohibits unreasonable searches and seizures. (U.S. Const., 4th Amend.) A person is seized or detained "when an officer intentionally applies physical restraint or initiates a show of authority to which an objectively reasonable person innocent of wrongdoing would feel compelled to submit, and to which such a person in fact submits." (People v. Linn (2015) 241 Cal.App.4th 46, 57 (Linn).) A detention is a seizure that consists of a short, investigatory stop. For a detention to be reasonable under the Constitution, law enforcement must have reasonable suspicion that the person is involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.) It is undisputed that Deputy Miller did not have reasonable suspicion when he encountered defendant.
A consensual encounter, however, is neither a search, nor a seizure, and thus no justification is required under the Fourth Amendment. (In re Manuel G. (1997) 16 Cal.4th 805, 821.) A police encounter stops being consensual when a reasonable person would not feel free to leave. (Brendlin v. California (2007) 551 U.S. 249, 255.) The question is, was Deputy Miller's encounter with defendant consensual, or not? In other words, would a reasonable person in defendant's position feel free to leave?
"Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." (United States v.Mendenhall (1980) 446 U.S. 544, 554.)
Our standard of review is mixed. "In reviewing the trial court's ruling on the suppression motion," this court must "uphold any factual finding, express or implied, that is supported by substantial evidence," and then "independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness." (People v. Hughes (2002) 27 Cal.4th 287, 327.)
The record supports the conclusion that the encounter was consensual. Deputy Miller testified that everything he asked was in a calm tone. He was making requests of defendant, not issuing commands. There was no show of force or authority. Deputy Miller was alone. And the encounter was very brief.
Defendant contends the encounter was a seizure because Deputy Miller "hunted" defendant down. Defendant repeatedly stresses this characterization in his brief. The magistrate described it that way at one point, and Deputy Miller agreed with the characterization. "Hunted" is quite a loaded term, however. What actually happened was that Deputy Miller searched for defendant. We are not aware of any authority that would prevent a law enforcement officer from searching for someone, even in the absence of reasonable suspicion.
Defendant also contends the encounter became a seizure when Deputy Miller retained defendant's identification to perform a record search. However, the evidence shows Deputy Miller asked permission to do that, which defendant gave. There is nothing in the record to suggest the permission was coerced. It is well established that a citizen may consent to a records search. (See People v. Leath (2013) 217 Cal.App.4th 344, 353 ["an individual's voluntary cooperation with an officer's request for identification does not convert the request into a detention because the individual is 'free at this point to request that his [identification] be returned and to leave the scene'"]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1254 [finding no detention where defendant voluntarily produced identification, leading to a records check that revealed a warrant, and stating, "At no time did [the defendant] ask the officer for his driver's license back. During the entire encounter, which lasted about three minutes, neither [officer], by words or conduct, indicated that [the defendant] was not free to leave"]; People v. Lopez (1989) 212 Cal.App.3d 289, 291 ["it is quite clear police do not need to have a reasonable suspicion in order to ask questions or request identification."].)
Defendant relies heavily on Linn, supra, 241 Cal.App.4th 46, which we find distinguishable. There, a uniformed officer pulled up next to a vehicle that had just parked and got off his motorcycle. He parked his motorcycle approximately three feet away. He contacted the driver (the defendant), stating, "'[T]he reason for my contact was because . . . the passenger . . . was flicking ashes out of the window.'" (Id. at p. 51.) The officer ordered the defendant to extinguish her cigarette and set her soda down. (Id. at p. 52.) The officer proceeded to ask the defendant for her license, which she produced, and during an ensuing records check the officer smelled alcohol on the defendant, leading to an arrest for driving under the influence. (Id. at p. 52.) At trial, the court granted the defendant's motion to suppress, and the Linn court affirmed.
Linn is distinguishable in two important respects. First, the court emphasized the deferential aspect of its review of the trial court's order, which, unlike here, granted a motion to suppress the evidence. (Linn, supra, 241 Cal.App.4th at pp. 49, 50.) Second, in Linn the officer created an implication that the defendant was not free to leave by standing in close proximity to her, confronting her with an allegation of criminal conduct, and issuing commands to her. (Id. at p. 51.) None of those factors are present here. Linn did not turn on the voluntary receipt of the defendant's identification, but instead on the totality of the circumstances. As the court stated, "an officer's taking of a voluntarily offered identification card, while it may be considered as a factor in evaluating whether a detention has occurred pursuant to a review of all the circumstances involved in an encounter, is not alone definitive in resolving that question. To the extent the trial court may have concluded otherwise, it was in error. This, however, does not satisfy our obligation to determine whether, under the totality of the circumstances, an unlawful detention occurred here." (Id. at p. 63.)
Thus we conclude Officer Miller's encounter with defendant was consensual and, therefore, did not run afoul of the Fourth Amendment. The court did not err in denying defendant's motion to suppress the evidence.
Possession of Heroin for Sale
However, the court did err in permitting the People to proceed on a charge of possession of heroin for sale (count 1). (Health & Saf. Code, § 11351.) Penal Code section 1009 provides, "An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination." Penal Code section 995 permits a defendant to file a motion to set aside the information, which must be granted where "the defendant had been committed without reasonable or probable cause." (Id., subd. (a)(2)(B).) "'The purpose of a motion to set aside the accusatory pleading under Penal Code section 995 is to review the sufficiency of the indictment or information on the basis of the record made before the grand jury in the one case or the magistrate at the preliminary hearing in the other.'" (Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 269.)
"At a preliminary hearing, the magistrate determines only whether probable cause exists. That is, could a reasonable person 'harbor a strong suspicion of the defendant's guilt'?" (People v. Leon (2015) 61 Cal.4th 569, 596.) "To withstand scrutiny when attacked on the ground of evidentiary sufficiency, it must appear some showing of the existence of each element of the charged crime was made at the preliminary examination. The showing may be made by means of circumstantial evidence supportive of reasonable inferences." (Ortega v. Superior Court (1982) 135 Cal.App.3d 244, 256, italics added.)
"On review of an order denying a motion to dismiss, we review the decision of the magistrate that held the defendants to answer. [Citation.] We will not disturb the order 'if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.' [Citation.] We may not substitute our 'judgment as to the weight of the evidence for that of the magistrate, and, if there is some evidence to support the information, [we] will not inquire into its sufficiency. [Citations.] Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.' [Citation.] To the extent the motion to dismiss rests on undisputed facts or the interpretation of statutes, however, our review is de novo." (Bom v. Superior Court (2020) 44 Cal.App.5th 1, 11.)
One of the elements of a charge of possession of a controlled substance for sale is that the defendant possessed a usable amount of the drug. (People v. Rubacalba (1993) 6 Cal.4th 62, 66; CALCRIM No. 2302 [element 6].) The "usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace." (Rubacalba, at p. 66.)
Here, there was literally no evidence at the preliminary hearing concerning the amount of heroin found on defendant. All we have is a general statement that Officer Parker believed he found heroin, and that there were "three tinfoils" of it, but there is no evidence whatsoever about how much heroin was in the tinfoil. Nor, for that matter, was there any evidence about what a usable amount of heroin would be.
The People's only response to this on appeal is to quote the prosecutor's argument at trial as follows: "[I]s there a reasonable inference that [the tinfoils] were packaged up to sell and that there was a usable quantity in them to sell? There is. Because why would [defendant] package up three pieces of tinfoil and not put a usable quantity in it? Nobody wants to buy trace amounts."
But this argument begs the question: it assumes defendant packaged three pieces of tinfoil for sale. But we can only draw that inference if the tinfoil contained a useable amount. And that is the rub: there was absolutely no evidence at the preliminary hearing about the amount of heroin in the tinfoil, and thus we cannot form any rational inferences.
Accordingly, the court erred in denying defendant's motion to set aside count 1 of the amended information.
DISPOSITION
The judgment is reversed as to count 1 (possession of heroin for sale). On remand, the court is instructed to vacate its order denying defendant's motion to dismiss count 1 and to enter a new order granting the motion as to count 1. In all other respects, the judgment is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.