Opinion
H024512.
11-18-2003
THE PEOPLE, Plaintiff and Respondent, v. BRADY PLOURDE, Defendant and Appellant.
Defendant Brady Plourde appeals from a judgment after a jury trial in which he pleaded no contest to possession of cocaine, and was convicted of carrying a loaded firearm on his person. On appeal, defendant asserts the trial court erred (1) in denying his motion to suppress evidence, because the police officer lacked a reasonable suspicion to detain him, (2) in refusing to instruct the jury on the defense of transitory possession of the weapon, and (3) in refusing to consider his request for deferred entry of judgment. We will affirm the judgment.
STATEMENT OF PROCEDURE
On May 18, 2001, defendant was charged in a three-count information with possession of cocaine while in possession of a loaded, operable firearm (Health & Saf. Code, § 11370.1 - count 1), possession of cocaine (Health & Saf. Code, § 11350, subd. (a) - count 2), and carrying a loaded firearm on his person, a misdemeanor. (Pen. Code, § 12031, subd. (a)(1) - count 3).
Defendant pleaded not guilty on all counts, and brought a motion to suppress evidence, which was denied on August 22, 2001.
A jury trial began on January 8, 2002, when the jury was sworn. The presentation of evidence was completed the next day, on January 9, 2002. At the conclusion of the presentation of evidence, the prosecutor moved to dismiss count 1, and renumber count 2 as count 1. Defendant pleaded no contest to count 1, (possession of cocaine) on January 10, 2002. The jury began deliberations and returned a guilty verdict to count 3 (carrying a loaded firearm, a misdemeanor).
On March 15, 2002, the court suspended imposition of sentence and placed defendant on two years probation, with four months in jail as a condition of probation.
Defendant filed a notice of appeal on April 29, 2002, and supplemented the notice on May 16, 2002.
STATEMENT OF FACTS
On December 1, 2000, defendant was arrested at a bar in downtown Palo Alto called MS04. At the time of defendants arrest, MS04 had been under police surveillance for suspected drug activity. The police officer who was supervising the surveillance was Sergeant Lacey Burt, who was outside the bar during the course of the evening of the arrest. Also present on the scene were four undercover police officers inside the bar.
On the night of defendants arrest, Sergeant Burt was outside the bar in a surveillance vehicle about 70 to 100 feet from the front door of the bar. At around 11:00 p.m., Sergeant Burt observed a man named Cheshire come out of the bar, get into his truck and drive away. A short time later, Cheshire drove back into the parking lot, parked, and reentered the bar. Soon thereafter, Sergeant Burt again observed Cheshire come out of the bar, this time with the bars bouncer, Robert Britton (Britton), whom Sergeant Burt knew as a parolee. With the aid of night-vision binoculars, Sergeant Burt saw Cheshire remove a handgun from his truck and hand it to Britton. At that point, Sergeant Burt called for additional patrol cars and she signaled the undercover officers inside the bar to leave.
After the transfer of the gun from Cheshire to Britton, the bars manager, Curtis Sazzman (Sazzman), walked out of the bar to his car, which was parked next to Cheshires truck. Sazzman got into his car, backed out of his parking space, and started to leave the parking lot, when Cheshire stepped in front of the car and flagged him down to stop. At this time, two patrol cars arrived and stopped almost directly in front of Sazzmans car. Sazzman stopped and remained in his car. Britton then left through the front door of the bar, and the arriving police officers detained and searched Britton. The police officers did not find a gun when they searched Britton.
At this point, Sergeant Burt saw defendant walk up to Sazzmans car, which was stopped in the driveway that led out of the bars parking lot. Sazzman got out of his car, and met defendant at the rear of Sazzmans car. Sergeant Burt then saw Sazzman hand defendant a small, dark object that he had taken from his waistband. Defendant put the object into his waistband area.
After the exchange between Sazzman and defendant, defendant walked to his truck in the parking lot. Defendant attempted to open the passenger door with his keys that were in his right hand. Sergeant Burt verbally identified herself as a police officer, by saying "Police officer," and ordered defendant to show his hands. Defendant dropped his right hand, and turned toward Sergeant Burt. Instead of showing his hands, defendant reached inside his unzipped jacked with his left hand. At this point, Sergeant Burt believed defendant was reaching for a weapon. Sergeant Burt grabbed defendant from behind, and struggled to pull him around the end of the truck. Sergeant Herrera saw the two of them, and ran up to assist Sergeant Burt turn defendant around and put his hands on the back of the truck. Just before defendants hands hit the back of the truck, a gun fell from underneath defendants jacket to the ground.
Defendant was then handcuffed, and a search of his person produced a bindle containing 1.3 grams of cocaine from his right front pocket. After being read his Miranda rights, defendant agreed to talk to Sergeant Burt, and told her that Sazzman gave him the gun when the two met at Sazzmans car. Sazzman asked defendant to take the gun, and at first, defendant refused. Defendant later agreed to take the gun because Sazzman "looked really desperate," and he intended to put the gun into his (defendants) truck when Sergeant Burt confronted him. Defendant also told Sergeant Burt that earlier that same day, Sazzman came to his house and showed him the gun. Sazzman said at the time that he obtained the gun for protection from possible retaliation by J.R., an employee whom Sazzman had recently fired.
Miranda v. Arizona (1966) 384 U.S. 436.
At his trial, defendant testified in his own defense, that on the night of his arrest, he had been socializing at the MS04 bar, and at one point, he went outside to look at a friends new car. While defendant and his friend were sitting in his friends car, defendant saw Sazzman and decided to go talk to him. Defendant walked up to Sazzman as he was still sitting in the drivers seat of his car. Sazzman opened the drivers door, said " `[y]ou have to take this, " reached behind the front seat and tried to hand defendant a gun. Defendant could not tell if the gun was loaded or operable.
At first, defendant refused to take the gun from Sazzman; however, Sazzman looked at defendant with "desperation in his eyes, like something was going to happen." At the time he took the gun, defendant was not aware that there were police in the area. Defendant testified that he made a "judgment call" that Sazzman was "in trouble" and that defendant needed to act quickly. Defendant then put Sazzmans gun under his jacket and walked to his own truck in the parking lot. He intended to "get rid of it" by putting it in his truck and later throwing it away.
As defendant was walking across the parking lot from Sazzmans truck to his own, he was holding the gun in his right hand under his jacket. The gun dropped to the ground when Sergeant Burt grabbed his arms and pulled them away from his jacket.
Defendant testified that he did not know what to do with the gun at the time he took it from Sazzman, but that he knew he wanted to "get rid of it." Defendant further testified that he did not want to throw the gun on the street, in case someone else should find it. Defendant also testified that he did not intend to give the gun back to Sazzman.
DISCUSSION
I. Motion to Suppress Evidence
Prior to the trial in this case, defendant moved to suppress the gun and the cocaine seized from him on the grounds that he had been detained without reasonable cause. The trial court denied the suppression motion, finding that defendants detention was reasonable under the totality of circumstances in this case. We agree.
In a proceeding to suppress evidence under Penal Code section 1538.5, the trial courts findings concerning the facts, whether express or implied, must be upheld if they are supported by substantial evidence. However, it is the responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness for the search or seizure. (People v. Lawler (1973) 9 Cal.3d 156, 160; People v. Loewen (1983) 35 Cal.3d 117, 123; accord, People v. Williams (1988) 45 Cal.3d 1268, 1301.) All presumptions favor the trial courts exercise of its power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, " `and the trial courts findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence. " (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) However, as the reviewing court, we "decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure." (People v. Miranda (1993) 17 Cal.App.4th 917, 922.)
Illegal Detention
Defendant first contends that he was illegally detained in this case, when Sergeant Burt walked up behind him, announced "Police officer," and ordered him to show her his hands.
"A person is seized for Fourth Amendment purposes when the officers words would convey to a reasonable person that he or she is being ordered to stop, and the person complies with that order." (People v. Castellon (1999) 76 Cal.App.4th 1369, 1374, citing California v. Hodari D. (1991) 499 U.S. 621, 628-629.) Hodari D. was clear that where defendant has not complied with the order, there has been no detention. (California v. Hodari D., supra, 499 U.S. at pp. 628-629.)
Defendant contends Sergeant Burts assertion of authority over him had two parts: the stated command to show his hands, and an unstated demand that he not leave. It is this unstated command that caused a restraint on defendants freedom to leave or walk away. (See, e.g. People v. Verin (1990) 220 Cal.App.3d 551, 556-557 [officers call of "Hold it. Police," or "Hold on. Police," detained defendant].) Further, while defendant did not comply with the first order to show the officer his hands, he did comply with the second unstated command by not attempting to flee. Therefore, defendants actions were consistent with Hodari D.s requirement of compliance with the officers orders.
While it is true that defendant did not leave the scene after being told to show his hands, he did not comply with the officers direct orders. "[A] person reasonably believing he is not free to leave is nevertheless not detained for Fourth Amendment purposes until he either submits to that show of authority or is physically seized by the officer. (California v. Hodari D., [supra, 499 U.S. at p.] 629.) Adapting the holding of Hodari D. to our facts: `[A]ssuming that [the officers conduct] in the present case constituted a "show of authority" [ordering] [defendant] to [show his hands], since [he] did not comply with that [order] he was not seized until [his hands were grabbed]. [Citation.]" (People v. Johnson (1991) 231 Cal.App.3d 1, 11.)
We disagree with defendants assertion that his remaining at the scene was sufficient to establish compliance with the officers orders such that the requirements of Hodari D. are satisfied. On the contrary, defendants act of moving his hands into his jacket in an area where he had earlier placed a weapon, rather than showing Sergeant Burt his hands as ordered was a clear refusal to submit to the authority of the police officer, a necessary component of a detention under Hodari D. Therefore, defendant was not detained until Sergeant Burt physically restrained him by grabbing his hands with the assistance of Sergeant Herrera.
Reasonable Cause
Assuming Sergeant Burts ordering defendant to show his hands constituted a detention, such detention was reasonable in this case. The Fourth Amendment prohibits police from making unreasonable stops of citizens. (People v. Souza (1994) 9 Cal.4th 224, 229.) A detention is reasonable "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." (Id. at p. 231.)
Here, Sergeant Burt had specific and articulable facts that provided an objective belief that defendant was involved in criminal activity. Specifically, during the course of the evening, Sergeant Burt saw Cheshire give Britton, a revolver in the parking lot. Britton then entered the bar with the revolver. Soon after Britton entered the bar with the revolver, Sazzman came out of the bar in a hurried manner, got into his car, and tried to leave the parking lot, but was blocked by two patrol cars. After Sergeant Burt witnessed Sazzmans foiled attempt to drive out of the parking lot, she observed Sazzman hand defendant a small, dark object, which defendant put into his waistband area. At the time of the transfer, Sazzman and defendant were standing a foot apart in the parking lot, with their backs to the two patrol cars that blocked Sazzmans exit from the parking lot. Under these circumstances, it was reasonable for Sergeant Burt to believe that the object Sazzman handed to defendant in the parking lot was the gun she had seen Britton take into the bar earlier in the evening. As a result, Sergeant Burt was justified in conducting an investigatory detention to determine if defendant was armed with a concealed weapon.
Based on the evidence presented at the suppression motion, the detention of defendant was reasonable and based on specific and articulable facts that defendant was carrying a concealed weapon. As such, the trial court did not err in denying defendants motion to suppress evidence.
II. Instruction on transitory possession
Defendant asserts that during his trial, the court erred in failing to give his requested jury instruction for transitory possession of a firearm. We disagree.
The requested jury instruction submitted by defense counsel at the close of evidence was CALJIC No. 12.06 (1999 rev.) (6th ed. 1996), which provides in relevant part: "The possession of an item is lawful where all of the following conditions are met: [¶] 1. The possession is momentary and is not based on either ownership or the right to exercise control over the item; [¶] 2. The item is possessed solely for the purpose of abandonment, disposal, or destruction; [& para;] 3. The item is possessed for the purpose of terminating the unlawful possession of it by another person or preventing another person from acquiring possession of it; and [¶] 4. Control is not exercised over the item for the purpose of preventing its imminent seizure by law enforcement."
The defense of transitory possession protects a person who disposes of known contraband for the purpose of terminating anothers illegal possession of that contraband. (See, e.g., People v. Mijares (1971) 6 Cal.3d 415, 420 (Mijares) ["in throwing the heroin out of the car, defendant Mijares maintained momentary possession for the sole purpose of putting an end to the unlawful possession of Rodriguez"].) As the Mijares court also recognized, the defense of momentary possession does not insulate from prosecution "those individuals who, fearing they are about to be apprehended, remove contraband from their immediate possession. [Citations.]" (Id. at p. 422.)
We agree with defendant that case law supports the conclusion that an instruction on temporary possession may be given in a possession of a firearm case. In People v. Hurtado (1996) 47 Cal.App.4th 805, 814, this court held that "the `momentary possession defense recognized in Mijares extends to possession of a firearm by a felon offenses." However, we disagree with defendant that there was substantial evidence to support the defense presented at the trial in this case. "A defendant is entitled to instruction on request on any defense for which substantial evidence exists." (People v. Miceli (2002) 104 Cal.App.4th 256, 267.) As such, the trial court did not err in refusing to give the transitory possession instruction.
In the instant case, there was not substantial evidence presented at trial that defendant possessed the gun for purposes of disposal. Specifically, defendant testified that when he took the gun from Sazzman, his intent at the time was to put the gun into his truck. Defendant acknowledged that at the time he took the gun and intended to place it into his truck, he had not yet determined what he would do with it. This testimony does not support one of the necessary elements of the defense of temporary possession, namely that defendant possess the firearm solely for the purpose of "abandonment, disposal,or destruction." (CALJIC No. 12.06 (1999 rev.).)
Additionally, the evidence presented at the trial suggests that defendants acceptance of the gun was to prevent the guns seizure by law enforcement, an act specifically excluded from the temporary possession defense. Specifically, defendant testified that the decision to take the gun was a "judgment call" based on the fact the Sazzman had a "look of desperation in his eyes." Moreover, defendant testified that he believed that Sazzman was "in trouble" and that "something was going to happen" to him. This testimony, coupled with the fact that two police cars blocked Sazzmans exit from the parking lot at the time Sazzman asked defendant to take the gun, supports a conclusion that defendant possessed the gun for the purpose of preventing its seizure by law enforcement.
There was not substantial evidence to support the defense of transitory possession in this case. As such, the trial court did not err in refusing to give the jury instruction on transitory possession.
III. Deferred Entry of Judgment
Defendant contends the trial court erred in refusing to grant him deferred entry of judgment after his no contest plea to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). The deferred entry of judgment statutes, Penal Code section 1000 et seq., provide that first time drug offenders who meet specified conditions "bypass the normal criminal process and enter a drug treatment program." (Terry v. Superior Court (1999) 73 Cal.App.4th 661, 663-664.) The purpose of the program "is to permit `the courts to identify the experimental or tentative user before he becomes deeply involved with drugs, to show him the error of his ways by prompt exposure to educational and counseling programs in his own community, and to restore him to productive citizenship without the lasting stigma of a criminal conviction and thereby reduce `the clogging of the criminal justice system. [Citation.]" (Id. at p. 664, quoting People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 61-62.)
A defendant may be considered for deferred entry of judgment where: "(1) The defendant has no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense. [¶] (2) The offense charged did not involve a crime of violence or threatened violence. [& para;] (3) There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed in this subdivision. [¶] (4) The defendants record does not indicate that probation or parole has ever been revoked without thereafter being completed. [& para;] (5) The defendants record does not indicate that he or she has successfully completed or been terminated from diversion or deferred entry of judgment . . . within five years prior to the alleged commission of the charged offense. [¶] (6) The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense." (Pen. Code, § 1000, subd. (a).)
At the time defendant requested deferred entry of judgment, the prosecutor provided two reasons for defendants ineligibility. The first was that defendant was involved in a crime of violence, because he struggled with police and was carrying a loaded firearm at the time he was arrested. The second reason the prosecutor determined defendant was not eligible was because J.R. told the police officer at the time he was arrested that defendant was the cocaine supplier at the bar. The trial court declined to rule on defendants motion for deferred entry of judgment based on a finding that the request was untimely.
Defendant asserts on appeal that his request for deferred entry of judgment was not untimely, because it was made as soon as possible after the prosecutor dismissed the count for violation of Health and Safety Code section 11370.1, a charge that made him statutorily ineligible for deferred entry of judgment. Additionally, defendant asserts he was eligible for deferred entry of judgment, and that the prosecutor lacked sufficient evidence to support a finding to the contrary.
Timeliness of the request for deferred entry of judgment
Defendant asserts that the trial court erred in refusing to consider his request for deferred entry of judgment when he decided to plead guilty to the possession of cocaine charge during trial. The trial court ruled that the request was untimely, because it was made after the commencement of trial. We agree.
Both the express language of the statute itself, as well as case law demonstrates that deferred entry of judgment may not be granted after the commencement of trial. For example, Penal Code section 1000.1, subdivision (b) provides: "If the defendant consents and waives his right to a speedy trial or a speedy preliminary hearing, the court may refer the case to the probation department." (Italics added.) These words unequivocally make a defendants consent to consideration for deferred entry of judgment contingent upon a simultaneous waiver of speedy trial rights. In addition, case law clearly states that once a trial commences, a defendant may not consent to deferred entry of judgment. "[T]he plain meaning of the waiver of speedy trial language of [Penal Code] section 1000.1 is that the defendants consent to referral of his case to the probation department should be tendered to the district attorney prior to the commencement of trial." (Morse v. Municipal Court (1974) 13 Cal.3d 149, 156.)
We disagree with defendants interpretation of the statute. Although it is true that defendant waived his right to a speedy trial in pleading no contest at the conclusion of the presentation of evidence in the trial, such waiver is not that intended by Penal Code section 1000.1. The statutory scheme clearly does not contemplate a request for deferred entry of judgment during the course of a trial. Indeed, Penal Code section 1000, subdivision (b) states that the "procedure shall be completed as soon as possible after the initial filing of the charges," and is "intended to allow the court to set the hearing for deferred entry of judgment at the arraignment." (Pen. Code, § 1000, subd. (b).) The express language of the code demonstrates its purpose to facilitate quick resolution of a pending drug case. Therefore, it is contrary to the statutes intent to allow a defendant to waive his right to a speedy trial after the trial has begun in order to avail himself of the opportunity to request deferred entry of judgment.
We agree with the trial court that defendants request for deferred entry of judgment at the conclusion of the evidence at his trial was untimely.
Eligibility for deferred entry of judgment
Assuming defendants request for deferred entry of judgment was timely in this case, we consider whether defendant was eligible under the statutory scheme for referral the program. On appeal, defendant asserts the evidence is not sufficient to support either of the prosecutions reasons for the determination that he was not eligible for deferred entry of judgment. (Sledge v. Superior Court (1974) 11 Cal.3d 70, 75-76. A defendant "may raise on appeal the question whether there was `evidence " to support the prosecutions finding of ineligibility.) Specifically, defendant contends that because the charge of possession of cocaine while armed with a loaded firearm was dismissed, and the statement of J.R. is inherently unreliable, neither of the grounds upon which the prosecution based its finding are sufficient.
While it is true that there is little to support the contention that defendant was involved in other drug offenses, based on the single statement of J.R. at the time he was arrested, there is sufficient evidence to support a finding that defendant was involved in a crime of violence or threatened violence that would make him ineligible for deferred entry of judgment.
We disagree with defendant that People v. Macafee (1980) 109 Cal.App.3d 808, is analogous to the present case. In Macafee, the defendant was arrested for disorderly conduct and battery. On the night of December 24-25, 1978, he approached a passenger in a vehicle and struck him on the side of the head. The victim complained to the police, who came to investigate and thought the defendant was intoxicated. The officer arrested him for disorderly conduct, and the victim made a citizens arrest for battery. Later, after the defendant had been taken to jail, a booking search revealed a razor blade in a folded piece of paper and a usable quantity of cocaine in a paper bindle. The defendant was convicted of possession of cocaine, and the charges of battery and disorderly conduct were dismissed. (People v. Macafee, supra, 109 Cal.App.3d at p. 811.) The defendant challenged the district attorneys determination that he was ineligible for diversion under Penal Code section 1000. "For an accused to be eligible for diversion Penal Code section 1000 requires, inter alia, that `[t]he offense charged did not involve a crime of violence or threatened violence. [Citation.]" (People v. Macafee, supra, 109 Cal.App.3d at p. 812, quoting Pen. Code, § 1000, subd. (a)(2).)
The appellate court reversed the probation order and remanded to allow the trial court to determine whether the defendant should be diverted, noting: "An offense specified in [Penal Code] section 1000 does not `involve a crime of violence or threatened violence unless the drug offense played some part in the commission of the violent crime, e.g., where the defendant committed a crime of violence while under the influence or during the purchase of a controlled substance. [¶] Appellants possession of cocaine apparently played no part in the commission of the battery. There was no evidence that he was under the influence of cocaine at the time." (People v. Macafee, supra, 109 Cal.App.3d at pp. 812-813.)
In Macafee, the violent act (the battery) occurred earlier in the evening and in a different location (on the street as compared with at the police station) than the drug offense (possession of cocaine), which was before the court. In the instant case, in contrast, the violent act (struggling with the police officers at the time he was arrested) occurred at the exact same moment and in the same place that the drug offense (possession of cocaine) occurred. We agree with the prosecution that the fact that the defendant struggled with the police and appeared to be reaching in his waistband for the firearm supports the inference that defendant was attempting to thwart his arrest on drug and firearm charges. Evidence of defendants actions provided a sufficient basis for the prosecution to conclude that defendant was involved a crime of violence or threatened violence. Accordingly, the prosecutions conclusion that defendant was ineligible for deferred entry of judgment pursuant to Penal Code section 1000, subdivision (a)(2), was supported by sufficient evidence.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: Rushing, P.J., Mihara, J.