Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside, Ronald C. Taylor, Judge (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and J. Richard Couzens, Judge (Retired judge of the Placer Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed in part and reversed in part. Nos. RIF109319/ RIF112658 & RIF112694
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant Jose DeJesus Ramirez was charged in case number RIF109319 with possession for sale of methamphetamine (Health & Saf., § 11378) and two counts for resisting arrest (Pen. Code, § 69); in case number RIF112658 with receiving stolen property while released on bail (Pen. Code, §§ 496, subd. (a), 12022.1) and misdemeanor resisting an officer (Pen. Code, § 148, subd. (a)(1)); and in case number RIF112694 with possessing a handgun for the benefit of a criminal street gang (Pen. Code, §§ 12021, subd. (a)(1), 12001.6, 186.22, subd. (b)), active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)), and receiving stolen property (Pen. Code, § 496, subd. (a)). All three cases alleged defendant had suffered a prior prison offense (Pen. Code, § 667.5, subd. (b)) and had three prior strike convictions (Pen. Code, §§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)).
After the court denied his motion to suppress evidence obtained in the stolen property case, case number RIF112658, defendant pleaded guilty to all charges in all three cases. He also admitted the prior prison allegation and the prior strike. The court denied defendant’s motion to strike a prior offense and sentenced him to 26 years to life in case number RIF109319, 28 years to life in case number RIF112658, and 32 years to life in case number RIF112694.
Defendant appeals contending the court erred in denying his motion to suppress evidence and motion to strike his prior convictions under section 1385, and that his sentence of 86 years to life constitutes cruel and unusual punishment. We agree the court should have granted his suppression motion and reverse the judgment in case number RIF112658.
Additionally, because the Attorney General concedes the prior prison term enhancements in counts 2 and 3 of case numbers RIF109319 and RIF112694 should be stricken, the case is remanded to allow the court to exercise its discretion to strike or impose the prior prison term enhancement in count 1 of case number RIF112694. In all other respects, we affirm the judgments in case numbers RIF109319 and RIF112694.
FACTS
The facts of case numbers RIF109319 and RIF 112694 are irrelevant to the issues on appeal and are omitted.
At the hearing on the motion to suppress evidence, police officer Charles Payne testified he was driving down a street at 11:30 a.m. when he saw defendant talking to someone while straddling a bicycle parked perpendicular to the curb blocking the traffic lane. Defendant was directly in front of Payne as he drove eastbound and there was another vehicle approaching in the westbound lane.
Believing defendant was in violation of a Vehicle Code section prohibiting pedestrians from standing or blocking a roadway, Payne tried to stop him. Defendant looked at him in surprise, made a U-turn, and fled north through some apartments. As Payne chased him on foot to arrest him for violations of the Vehicle Code and Penal Code section 148, he noticed the bicycle defendant had been riding lying in front of an apartment.
Payne approached the apartment and saw defendant, who had been bare-chested, look out the door at him, disappear inside, and re-emerge wearing a Lakers’ jersey. Defendant told Payne someone dropped the bicycle and ran through to the alley. When Payne responded he had already checked the alley and knew defendant was the one on the bicycle, defendant reached for the knob on the security door and tried to close it. Payne grabbed his wrist and attempted to take him into custody but defendant pulled away and ran to the back bedroom.
Payne pursued him into the apartment, stopping in the living room for his own safety. Defendant came out moments later and Payne took him into custody. In response to Payne’s request for identification, defendant said it was in a wallet lying on the desk. The only thing Payne saw on the desk that resembled an I.D. or a wallet was a passport with checks and other forms of identification folded into it. Believing that was what defendant had referred him to, Payne opened it and discovered the passport belonged to Kelly Forsberg. Inside the passport he found checks belonging to Forsberg and a Maria Diaz.
The court denied defendant’s motion to suppress without comment.
DISCUSSION
1. Denial of Motion to Suppress
a. 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.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
b. Reasonable Basis to Stop Defendant
A detention is constitutionally reasonable if the circumstances known or apparent to the detaining officer include “specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.... [T]he facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question.” (In re Tony C. (1978) 21 Cal.3d 888, 893, fn. omitted; People v. Daugherty (1996) 50 Cal.App.4th 275, 285.) “The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case. [Citations.] [¶]... The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ [Citation.] But where a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances “in the proper exercise of the officer’s duties.” [Citation.]’ [Citation.]” (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
The Attorney General cites two Vehicle Code (all further statutory references are to this code unless otherwise stated) provisions potentially violated by defendant’s actions at the time of the stop—section 21950, subdivision (b) and section 21956, subdivision (a). Neither applies.
Section 21950, subdivision (b) provides, “This section does not relieve a pedestrian from the duty of using due care for his or her safety. No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard. No pedestrian may unnecessarily stop or delay traffic while in a marked or unmarked crosswalk.” “[T]he statute was intended to apply to those situations where a pedestrian unexpectedly asserts his right-of-way in an intersection at a time when the vehicle is so close that it is virtually impossible to avoid an accident. Typical situations include when a pedestrian steps, jumps, walks or runs directly in front of a vehicle travelling in lanes which are adjacent to the curb or other place of safety occupied by the pedestrian.” (Spann v. Ballesty (1969) 276 Cal.App.2d 754, 761.)
Here, defendant was sitting on a bicycle talking to someone. A person on a bicycle is not a “pedestrian.” (See Jermane v. Forfar (1952) 108 Cal.App.2d 849, 852; § 21200, subd. (a).) And rather than suddenly running into the path of Payne’s vehicle, defendant “immediately made a U-turn” and rode away upon seeing Payne.
The record does not support the Attorney General’s contention defendant was “causing an immediate hazard because he was blocking a whole lane of traffic.” Although Payne testified defendant was impeding eastbound traffic and was “directly in front of [him] blocking the lane,” he also conceded that the only car he saw defendant impede “would have been [his] until [defendant] fled from him.” Because defendant fled before Payne reached him, there was no “immediate hazard” to either defendant or Payne and it cannot be said defendant was “unnecessarily stop[ping] or delay[ing] traffic....” (§ 21950, subd. (b).)
Section 21956, subdivision (a), in turn, reads, “No pedestrian may walk upon any roadway outside of a business or residence district otherwise than close to his or her left-hand edge of the roadway.” The statute has been interpreted to mean that a pedestrian may be in the middle of the road when he or she is inside a business or residential district. (People v. Cox (2008) 168 Cal.App.4th 702, 709.) Here, the Attorney General acknowledges defendant “was in a residence district, as he ran to apartments nearby.” He also implicitly admits defendant was not walking, but “straddling a bicycle which was perpendicular to the curb.” Defendant thus did not violate section 21956.
Relying on People v. Souza (1994) 9 Cal.4th 224, the Attorney General argues defendant’s flight provided Payne with reasonable suspicion that a crime had been committed. Souza “recognize[d]... that flight in response to the appearance of a uniformed officer or a marked patrol car ordinarily is behavior that police may legitimately regard as suspicious, and therefore also can be a key factor in establishing reasonable cause to detain in a particular case.” (Id. at p. 227.)
But the court refused to adopt a “bright line rule” that flight upon encountering a uniformed police officer or a marked patrol car alone is sufficient to justify a detention. (People v. Souza, supra, 9 Cal.4th at pp. 235-239.) Rather, it held that courts should consider “‘the totality of the circumstances—the whole picture’ to determine whether a particular intrusion by police was justified.” (Id. at p. 239.) “No single fact—for instance, flight from approaching police—can be indicative in all detention cases of involvement in criminal conduct. Time, locality, lighting conditions, and an area’s reputation for criminal activity all give meaning to a particular act of flight, and may or may not suggest to a trained officer that the fleeing person is involved in criminal activity.” (Ibid.) Souza concluded the totality of the circumstances in that case—“the presence on the sidewalk at 3:00 a.m. of two people who appeared to be talking to the occupants of a car parked in total darkness in [a high crime] area, coupled with evasive conduct by the occupants of the car and defendant’s sudden flight when [the] [o]fficer... directed his patrol car’s spotlight towards the group”—“justified a brief, investigative detention to enable the officer to resolve the ambiguity in the situation and to find out whether the activity was in fact legal or illegal. [Citation.]” (Id. at pp. 241-242.)
This case does not present a similar degree of suspicious conduct by defendant. He was not engaged in any activity that created a reasonable suspicion he was committing a crime. He was sitting on a bicycle talking to someone in broad daylight. The record contains no evidence this was a high crime area or that Payne believed it to be so. The only fact the Attorney General cites is defendant’s flight when Payne tried to detain him. But that by itself does not suffice to justify a detention.
c. Warrantless Entry Into Defendant’s Apartment
Defendant also argues “Payne was not authorized to pursue him into his home to detain him....” The Attorney General responds the entry was justified because Payne “sought to detain [defendant] for [a] traffic violation” and “followed [him] into his apartment in hot pursuit.” The contention lacks merit.
A “presumption of unreasonbleness... attaches to all warrantless home entries. [Citation.]” (Welsh v. Wisconsin (1984) 466 U.S. 740, 750 [104 S.Ct. 2091, 80 L.Ed.2d 732].) “The presumption... ‘can be overcome by a showing of one of the few “specifically established and well-delineated exceptions” to the warrant requirement [citation], such as “‘hot pursuit of a fleeing felon...’” [citation].’” (People v. Thompson (2006) 38 Cal.4th 811, 817-818.) This “type of exigent circumstance[] has been recognized where an arrest or detention based on probable cause has begun in a public place, but the suspect retreats into a private place in an attempt to thwart the arrest.” (People v. Lloyd (1989) 216 Cal.App.3d 1425, 1428.)
But the exception does not apply here because we have already determined Payne had no probable cause to detain defendant and the attempted detention was not lawful. That fact distinguishes this case from those cited by the Attorney General. (See United States v. Santana (1976) 427 U.S. 38, 42-43 [96 S.Ct. 2406, 49 L.Ed.2d 300 [otherwise lawful arrest for selling drugs]; In re Lavoyne (1990) 221 Cal.App.3d 154, 159 [lawful detention for traffic violations]; People v. Lloyd, supra, 216 Cal.App.3d at p. 1428 [same]; People v. Abes (1985) 174 Cal.App.3d 796, 806-807 [reasonable suspicion of criminal activity].) The warrantless entry into defendant’s apartment violated his Fourth Amendment rights.
In light of our conclusion, it is unnecessary to address defendant’s claim Payne exceeded the scope of his consent in opening the passport. Because “the illegal entry inexorably led to the search and seizure of the contraband challenged here,... defendant’s motion to suppress should have been granted.” (People v. Ormonde (2006) 143 Cal.App.4th 282, 296.)
2. Prior Prison Term Enhancements
Defendant argues the prior prison term enhancements in counts 2 and 3 in cases RIF109310 and RIF112694 should be stricken, rather than stayed, because a prior prison term maybe imposed only once. The Attorney General agrees, as do we. (People v. Smith (1992) 10 Cal.App.4th 178, 182-183.)
Defendant also asserts “the prior prison term enhancement imposed and stayed in count 1 in case RIF112694 must be stricken” because once a prior prison term is found true within Penal Code section 667.5, subdivision (b)’s meaning, the court may not stay the enhancement “but must either impose or strike it.” (People v. Langston (2004) 33 Cal.4th 1237, 1241.) But as the Attorney General notes, the trial court must provide a statement of reasons when exercising its discretion to strike a mandatory prison prior (Pen. Code, § 1385, subd. (a); People v. Jordan (2003) 108 Cal.App.4th 349, 368-369), and here it “was silent as to why it chose to stay and run the prior prison enhancement in count 1 of RIF112694 concurrently.” Although defendant maintains the court’s intent was “apparent,” he acknowledges “remand is an accepted remedy.” (See People v. Campbell (1999) 76 Cal.App.4th 305, 311.) The case is remanded to the court with directions to strike or impose the prior prison term enhancement in count 1 of RIF112694.
3. Denial of Motion to Strike Prior Convictions
Defendant contends the court abused its discretion by denying his motion to strike one or more of his three prior serious convictions under Penal Code section 1385 based on his criminal history. We disagree.
Penal Code section 1385, subdivision (a) authorizes a trial court to strike prior felony conviction allegations “in furtherance of justice” in cases brought under the “Three Strikes” law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) In determining whether or not to do so, the trial court “must consider whether, in light of the nature and circumstances of [the defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under [Penal Code] section 1385 is subject to review for abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 375.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.) That did not occur here.
The court denied the motion to strike the priors because, although defendant had “a number of things going for him,” including a supportive family and being employed at times, his criminal record started in 1990 and “continues almost unabated.... ” In 1990, there was a “significant incident” in which defendant was the driver and thus “a serious participant in a drive-by shooting” where a person was wounded. Shortly after his release from probation two years later, he committed another weapons violation. Two years after that, he was convicted of carrying a firearm in a vehicle.
In 1997, defendant was convicted of his three strike offenses. The convictions arose out of a single incident in which defendant had robbed a convenience store and returned to the car when a codefendant pointed a gun at the store clerk and a customer. Defendant pleaded guilty to two counts of assault with a deadly weapon and one count of robbery. After defendant was released from state prison, he committed two parole violations and in 2003 committed the present series of offenses.
Defendant argues the court should have granted his request to strike his strike convictions because they “arose from a single incident, [he] personally committed only a theft, the assaults were committed by a codefendant without any apparent assistance or encouragement from him, and the assaults were not strikes at the time he entered his plea.” (See People v. Winters (2001) 93 Cal.App.4th 273, 276 [before 2001 adoption of Proposition 21, assault conviction constituted prior strike only if the defendant personally used weapon or inflicted great bodily injury]; see also People v. Rodriguez (1998) 17 Cal.4th 253, 261.)
But as defendant acknowledges, the determination of whether a prior offense constitutes a strike is based on whether it was a strike when the current offense was committed. (People v. Alvarez (2002) 100 Cal.App.4th 1170, 1179; People v. James (2001) 91 Cal.App.4th 1147, 1151.) Here, because defendant’s current offenses were committed after the effective date of Proposition 21, his 1997 assault convictions qualified as serious felonies under section 1192.7, subd. (c)(31). As for the other factors cited by defendant, the court agreed the strikes arose out of “one incident and [the] defendant had less involvement than the person who actually had the firearm,... [but was] very troubled by the fact he was wearing body armor at the time.” Under these circumstances, defendant has not shown the court abused its discretion in weighing these factors.
Defendant maintains that his current offenses “were not serious or violent felonies,” that “gang activity was not an integral part of the offenses” despite his admission of the gang enhancement, and that he took responsibility by pleading guilty, “sparing the state considerable resources.” He admits his juvenile offense was serious, but asserts “it occurred 15 years earlier and [he] was not the shooter[]” and “never personally used a gun.” And although he recognizes the court considered the “number of things going for him,” he reiterates these matters and argues his “struggle[] with a long-term addition to drugs which led him to engage in criminal activity[]... was a mitigating factor that the court should have considered in determining whether to strike his prior convictions.”
Defendant is essentially asking this court to reweigh the evidence and substitute our judgment for that of the trial court. This we will not do. “‘[W]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance’ [citation].” (People v. Carmony, supra, 33 Cal.4th at p. 378.) The record in this case affirmatively shows the court understood its discretionary authority and weighed all of the competing facts to reach a reasoned and reasonable conclusion. After evaluating the entirety of that information, the court drew its ultimate conclusion and declined to exercise its discretion to strike one or more of the prior strikes. Given these facts and circumstances, defendant has failed to show abuse of discretion.
4. Cruel and Unusual Punishment
Defendant challenges his 86-years-to-life sentence, claiming it “constitutes cruel and unusual punishment” under the federal constitution and “is disproportionate to the severity of his offenses.” We are not persuaded.
The Eighth Amendment to the United States Constitution “contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ [Citations.]” (Ewing v. California (2003) 538 U.S. 11, 20 [123 S.Ct. 1179, 155 L.Ed.2d 108].) “A punishment violates the Eighth Amendment if it involves the ‘unnecessary and wanton infliction of pain’ or if it is ‘grossly out of proportion to the severity of the crime.’ [Citation.]” (People v. Retanan (2007) 154 Cal.App.4th 1219, 1230.) As the Attorney General points out, the United States Supreme Court noted this principle is “applicable only in the ‘exceedingly rare’ and ‘extreme’ case. [Citations.]” (Lockyer v. Andrade (2003) 538 U.S. 63, 73 [123 S.Ct. 1166, 155 L.Ed.2d 144].)
In deciding whether a sentence constitutes cruel and unusual punishment, we normally are to consider “[t]hree objective factors,” “‘(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.’ [Citation.]” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1076.) But the analysis does not apply to sentences imposed under the three strikes statute. (People v. Cline (1998) 60 Cal.App.4th 1327, 1338 [“this step is inapposite to three strikes sentencing because it is a defendant’s ‘recidivism in combination with his current crimes that places him under the three strikes law’”].)
The United States Supreme Court has determined that lengthy indeterminate life sentences such as those imposed under California’s Three Strikes law for recidivist criminals do not violate the Eighth Amendment even for relatively minor third strike offenses. In Lockyer, the court held that an indeterminate sentence of 25 years to life for stealing videotapes worth $153 by a defendant with only three prior strikes (none of which involved weapons or violence) is valid. (Lockyer v. Andrade, supra, 538 U.S. at pp. 70, 77.) In Ewing, the court upheld a defendant’s sentence of 25 years to life for shoplifting golf clubs worth approximately $1,200. (Ewing v. California, supra, 538 U.S. at pp. 17-18, 30-31.) The defendant’s prior strikes included three burglaries and a robbery.
As in Ewing, this is not the “‘rare case’” that “‘leads to an inference of gross disproportionality.’ [Citation.]” (Ewing v. California, supra, 538 U.S. at p. 30.) The sentence is harsh. Nevertheless, we cannot conclude that it is cruel and unusual given defendant’s lengthy criminal record.
DISPOSITION
The order of the trial court denying defendant’s suppression motion in case number RIF112658 is reversed. Within 10 days of the filing of the remittitur in the trial court, the trial court shall enter an order granting defendant’s motion to suppress evidence and vacating defendant’s guilty plea in case number RIF112658. Unless the People elect to proceed with new and different evidence within 10 days of the granting of the suppression motion, the trial court shall dismiss the case.
In case number RIF112694, the matter is remanded to allow the court to exercise its discretion to strike or impose the prior prison term enhancement in count 1. In all other respects, the judgments in case numbers RIF112694 and RIF109319 are affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.