Opinion
E051413 Super.Ct.No. RIF154108
11-02-2011
THE PEOPLE, Plaintiff and Respondent, v. DONALD TIMOTHY SHAW, Defendant and Appellant.
Michael F. Obrand, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Meredith S. White, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. W. Charles Morgan and Barbara J. Beck, Judges. Affirmed as modified.
Judge Beck is a retired judge of the Santa Barbara Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. Judge Morgan made the ruling at the suppression hearing, and Judge Beck was the sentencing judge.
Michael F. Obrand, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant and appellant Donald Timothy Shaw pled guilty to possession of a controlled substance for sale, to wit, methamphetamine (Health & Saf. Code, § 11378; count 1) and transportation of a controlled substance, to wit, methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 2) and admitted that he had a prior violation of Health and Safety Code section 11378 (Health & Saf. Code, § 11370.2, subd. (c)). In return, the remaining allegations were dismissed and defendant was sentenced to the stipulated term of six years in state prison with credit for time served. On appeal, defendant contends (1) the trial court erred in denying his suppression motion, and (2) his sentence on count 1 should have been stayed pursuant to Penal Code section 654. We reject defendant's first contention, but agree with the parties that his sentence on count 1 should have been stayed.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the suppression hearing.
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On March 11, 2008, Riverside Police Department (RPD) officers were conducting surveillance on a house in Rubidoux, California, an unincorporated area of Riverside County, based on information from a confidential informant who had notified police the residence was being used for the sale of methamphetamine. The informant had indicated that there was "an older white male," between the ages of 40 and 50, driving a red Cadillac and involved with the drug activities taking place at the residence. While conducting the surveillance, RPD officers saw the red Cadillac leaving the residence. The subject vehicle was being driven by defendant, who matched the description given by the confidential informant.
RPD Officer Jayson Wood pulled the subject vehicle over mainly because of its involvement in selling methamphetamine and also because defendant was not wearing a seat belt. When Officer Wood contacted defendant, Officer Wood noticed that defendant was nervous and appeared to be "fidgeting around a lot." In response to Officer Wood's question, defendant indicated he did not have anything illegal in his car. Defendant also declined to give Officer Wood permission to search the vehicle. Based on officer safety reasons and knowing that defendant was being stopped for "possibly carrying methamphetamine" and that methamphetamine sellers carry firearms, Officer Wood asked defendant to exit his vehicle.
Officer Wood thereafter called RPD narcotics Detective Matthew Lackey, the officer in charge of the narcotics investigation, to notify him that the subject vehicle had been stopped. Detective Lackey arrived at the scene about five minutes after the initial stop. When Detective Lackey contacted defendant, defendant was not in handcuffs and he was not under arrest. Detective Lackey explained to defendant that he had been followed from the subject residence and stopped by law enforcement based on information from a confidential source that defendant was involved in the sales of methamphetamine and that defendant had methamphetamine in the car.
Defendant thereafter lowered his head and sighed. Detective Lackey asked defendant if he had any methamphetamine on him. Defendant answered in the affirmative. Detective Lackey asked defendant if the methamphetamine was hidden well in the car; defendant said that it was. Detective Lackey asked defendant to retrieve the methamphetamine, and he agreed. Detective Lackey then approached the vehicle with defendant. When defendant reached towards the window controller of the car, Detective Lackey stopped defendant. Detective Lackey looked down inside the window controller and saw a pouch inside. He then retrieved the pouch. The pouch contained five baggies individually packaged with about three and a half grams of methamphetamine. In total, 18 grams of methamphetamine was recovered. Due to defendant's cooperation with law enforcement, defendant was not arrested but released at that time.
Riverside Sheriff's Department Sergeant Joseph Pemberton testified that he was assigned to the West County narcotics task force on March 11, 2008. He explained that the West County narcotics task force is a multi-agency task force charged with drug enforcement activities in western Riverside County, and that other agencies, such as neighboring agencies, are involved in the task force and are allowed to conduct investigations in the Rubidoux area. This allowance had been communicated to the RPD. Essentially, Sergeant Pemberton stated that there is an agreement between the Riverside County Sheriff's Department (the County Sheriff's Department) and RPD to "pursue investigations with the first right of refusal that originate in their areas," and that other agencies do not have to notify the County Sheriff's Department when they are conducting investigations or arrests in areas located in western Riverside County.
Detective Lackey testified that the City of Rubidoux is in an area where the Special Investigations Bureau of the RPD normally conducts law enforcement matters, and that he was authorized to enforce the law in that area. Detective Lackey explained that there is "a combined law enforcement agreement which all Riverside County agencies enter into which provide . . . a guideline for police action, whether it be enforcement action, SWAT call-outs, officer-involved shootings. It's basically a policy and procedure manual for the way agencies will respond and conduct investigations." Detective Lackey had read the written agreement between RPD and the County Sheriff's Department, and had notified the County Sheriff's Department of the current traffic stop. Detective Lackey explained that RPD notifies the County Sheriff's Department dispatch "every time [they] leave the city and go into any other city, whether it be in the county or not, [they] are required to notify that agency where [they] are." The County Sheriff's Department dispatch thereafter notifies "the deputies working in that area that there are undercover narcotics detectives working in a certain area, and be prepared, if they call for . . . assistance." RPD notifies the County Sheriff's Department of a description of their vehicles, how many detectives are working in the field, and what they are doing.
Defendant filed a suppression motion, arguing RPD did not have authority to stop his vehicle in the City of Rubidoux for a traffic violation. He also argued that the stop was unduly prolonged and that his consent to search the vehicle was not voluntary.
The People subsequently filed an opposition, asserting that RPD had jurisdiction to stop defendant's vehicle due to an agreement between RPD and the County Sheriff's Department and that the search and stop were legal. The People further argued that RPD had the authority to effectuate the stop because defendant had committed a public offense in the officer's presence and there was an immediate threat defendant would escape detention.
The trial court denied defendant's suppression motion, finding the officers had jurisdiction to effectuate the stop because the officers had statewide authority to effectuate such a stop and the officers were part of a joint task force charged with conducting investigations throughout the county. The court also found that the officers had probable cause to stop the vehicle based on the seat belt violation, the stop was not unduly prolonged, and defendant's consent was voluntary.
II
DISCUSSION
A. Motion to Suppress
Defendant argues the trial court erred in denying his suppression motion, because RPD did not have jurisdiction to effectuate the stop, the detention was unduly prolonged, and his consent was involuntary.
In reviewing the denial of a suppression motion pursuant to Penal Code section 1538.5, we evaluate the trial court's express or implied factual findings to determine whether they are supported by substantial evidence, but we exercise our independent judgment to determine whether, on the facts found, defendant's Fourth Amendment rights have been violated. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Williams (1988) 45 Cal.3d 1268, 1301.)
1. Jurisdiction to effectuate the stop
At issue in this case is whether the prosecution established that RPD had authority to stop defendant in an unincorporated area of Riverside, given that the offense occurred outside the Riverside city limits. Determination of the issue rests on interpretation of Penal Code section 830.1, subdivision (a). That statute defines the term peace officers, and goes on to delineate the authority of such officers:
"The authority of . . . peace officers extends to any place in the state, as follows:
"(1) As to any public offense committed or which there is probable cause to believe has been committed within the political subdivision that employs the peace officer or in which the peace officer serves.
"(2) Where the peace officer has the prior consent of the chief of police or chief, director, or chief executive officer of a consolidated municipal public safety agency, or person authorized by him or her to give consent, if the place is within a city, or of the sheriff, or person authorized by him or her to give consent, if the place is within a county.
"(3) As to any public offense committed or which there is probable cause to believe has been committed in the peace officer's presence, and with respect to which there is immediate danger to person or property, or of the escape of the perpetrator of the offense." (Pen. Code, § 830.1, subd. (a)(1), (2), (3).)
"Public offenses" include infractions. (Pen. Code, § 16; People v. Tennessee (1970) 4 Cal.App.3d 788, 791.)
Here, we find that substantial evidence was introduced at trial to show there was a consent agreement in place for cross-jurisdictional activity between RPD and the County Sheriff's Department. Sergeant Pemberton of the County Sheriff's Department and RPD Detective Lackey both testified there was an agreement between the two agencies and the agreement extended to the investigation of narcotics crimes. Sergeant Pemberton noted that other agencies are permitted to conduct drug investigations in the Rubidoux area and that the County Sheriff's Department was involved with other agencies in the West County narcotics task force. Detective Lackey also testified that the Special Investigations Bureau is authorized to conduct law enforcement matters in the City of Rubidoux. Detective Lackey explained that there was a combined law enforcement agreement between the law enforcement agencies throughout Riverside County; that the agreement is in writing; and that he followed the agreement's protocol by notifying the County Sheriff's Department of the investigation in the City of Rubidoux. Accordingly, we find RPD had authority to stop defendant's vehicle for suspected narcotics activity and seat belt infraction pursuant to Penal Code section 830.1, subdivision (a)(2).
Defendant, however, argues that subdivision (a)(2) of Penal Code section 830.1 did not apply because there was no written agreement introduced into evidence and there was no evidence presented to show "the officers had extraterritorial jurisdiction to enforce minor traffic infractions such as seat belt violations." We reject these assertions for several reasons. First, although requesting the trial court to take judicial notice of the existence and applicability of the written agreement would certainly be much clearer, there was substantial evidence here to show the existence of such an agreement. Second, the record is clear that defendant was stopped primarily because he was suspected of narcotics activity and secondarily because of a seat belt violation. In addition, neither RPD officer issued a citation to defendant in regards to the infraction. As further elaborated below, II.A.2.a., infra, the record here discloses that RPD had jurisdiction to stop defendant's vehicle in an unincorporated area because they had reasonable suspicion to believe defendant was involved in narcotics activity and the agreement between the County Sheriff's Department and RPD specifically applied to such investigations.
We reject the People's assertion that RPD had probable cause to believe a public offense had been committed in their presence and there was an immediate threat defendant would escape and therefore Penal Code section 830.1, subdivision (a)(3) applied. As explained by our colleagues in People v. Landis (2007) 156 Cal.App.4th Supp. 12 at page 17: "Most of the published authority addressing Penal Code section 830.1, subdivision (a)(3) deals with situations in which the offender's driving pattern involved multiple Vehicle Code violations or circumstances suggestive of a more serious offense, such as driving under the influence. For example, in Lofthouse v. Department of Motor Vehicles (1981) 124 Cal.App.3d 730, 733 , the appellant's vehicle was observed, 'driving erratically, making several lane changes which caused drivers of other vehicles to make sudden stops to avoid collision.' In People v. Tennessee, officers observed the appellant's vehicle, "'weaving in long sweeping curves from the center lane to the curb and back again,'" three times over five blocks, in addition to failing to stop for a red light. (People v. Tennessee, supra, 4 Cal.App.3d at p. 790.) Such circumstances clearly demonstrate an immediate danger to persons or property, sufficient to confer authority to stop pursuant to [Penal Code] section 830.1, subdivision (a)(3). Thus, under such circumstances, no danger of escape would be necessary to confer statutory jurisdiction."
The court in Landis found that running a red light by the defendant did not pose the type of risk contemplated by Penal Code section 830.1, subdivision (a)(3), to warrant a traffic stop outside the officer's jurisdiction. (People v. Landis, supra, 156 Cal.App.4th Supp. at pp. 17-18.) Likewise, here there was no evidence to suggest that Penal Code section 830.1, subdivision (a)(3) applied.
2. Detention
a. Whether RPD had reasonable suspicion to stop defendant
Defendant first argues that the informant's tip did not have sufficient indicia of reliability to give the officers the reasonable suspicion necessary to justify the stop.
In determining whether a detention is legal, reviewing courts consider the totality of the circumstances. (People v. Souza (1994) 9 Cal.4th 224, 230-231.) "'[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must 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. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the 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.'" (People v. Loewen (1983) 35 Cal.3d 117, 123.)
The information that defendant was trafficking methamphetamine came from a "confidential source." In determining whether the informant's tip justified defendant's detention, we are guided by the United States Supreme Court's decision in Florida v. J.L. (2000) 529 U.S. 266 [146 L.Ed.2d 254, 120 S.Ct. 1375] (J.L.). There, the court explained: "Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, [citation], 'an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity,' [citation]. As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.' [Citation.]" (Id. at p. 270.) Citing Alabama v. White (1990) 496 U.S. 325 [110 L.Ed.2d 301, 110 S.Ct. 2412] as an example, the court explained: "In White, the police received an anonymous tip asserting that a woman was carrying cocaine and predicting that she would leave an apartment building at a specified time, get into a car matching a particular description, and drive to a named motel. [Citation.] Standing alone, the tip would not have justified a Terry [v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868]] stop. [Citation.] Only after police observation showed that the informant had accurately predicted the woman's movements, we explained, did it become reasonable to think the tipster had inside knowledge about the suspect and therefore to credit his assertion about the cocaine. [Citation.]" (J.L., supra, at pp. 270-271.)
The court then turned to the facts. In J.L., an anonymous caller told police that a young African-American male, who was standing at a particular bus stop and wearing a plaid shirt, was carrying a gun. Within minutes, an officer saw three people at the bus stop, one of whom fit the description. The police frisked them all and found a gun on the man in plaid. (J.L., supra, 529 U.S. at pp. 268.) The court concluded that the caller's tip lacked sufficient indicia of reliability to support the stop and frisk. The anonymous caller "provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All 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.)
J.L. is factually distinguishable from this case because the officers here relied on a "confidential source," rather than an anonymous tip. Additionally, even if the confidential source can be classified as an anonymous tipster, the officers had additional corroborating facts, such as the known drug activity at this particular residence, the description of defendant, and the description of defendant's car and his future activity. Moreover, like in White, the police had set up a surveillance of the residence; and it was only after police observation showed that the informant had accurately predicted defendant's movements, did it become reasonable to think the tipster had inside knowledge about the suspect. J.L. recognized that an anonymous tip, if suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion for an investigatory stop. (J.L., supra, 529 U.S. at p. 270.) J.L. is further distinguishable from the instant action because there the officers immediately conducted a patdown search of the defendant. Here, after Detective Lackey informed defendant why he was stopped and whether defendant had methamphetamine in his car, defendant said that he did and then consented to the search of his vehicle. We conclude J.L. is factually inapposite to this case.
We, therefore, find that defendant's detention was justifiable under the circumstances.
b. Whether the detention was unduly prolonged
Defendant next argues that even if the initial stop was lawful, the detention was unlawfully prolonged and went beyond the time necessary to issue a citation for a seat belt violation, and therefore his consent to the search of his car was involuntary. We disagree.
"[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop." (Florida v. Royer (1983) 460 U.S. 491, 500 [75 L.Ed.2d 229, 103 S.Ct. 1319].) There is no fixed time limit or rigid formula for determining the constitutionality of an investigatory detention. (People v. Gomez (2004) 117 Cal.App.4th 531, 537.) A detention is deemed unconstitutional when it extends beyond what is reasonably necessary under the circumstances that made its initiation permissible. (Ibid.) The issue is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. (Id. at p. 538.) In determining this issue, courts may consider that information may come to light during a detention that provides a reasonable basis for extending the detention. (People v. Russell (2000) 81 Cal.App.4th 96, 102; People v. Valencia (1993) 20 Cal.App.4th 906, 918 [Fourth Dist., Div. Two].)
In this case, a total of five to seven minutes elapsed between the initial stop and defendant giving his consent to search his vehicle. Detective Lackey arrived at the scene of the stop not more than five minutes after the initial stop by Officer Wood. Officer Wood had stopped defendant's vehicle because of its involvement in selling methamphetamine and also because defendant was not wearing a seat belt. When Officer Wood contacted defendant, Officer Wood noticed that defendant was nervous and appeared to be "fidgeting around a lot." Based on officer safety reasons and knowing that defendant was being stopped for "possibly carrying methamphetamine" and that methamphetamine sellers carry firearms, Officer Wood asked defendant to exit his vehicle. Officer Wood thereafter called Detective Lackey, the officer in charge of the narcotics investigation, to notify him that the subject vehicle of the investigation had been stopped. Detective Lackey arrived at the scene about five minutes after the initial stop; and within five to seven minutes of the initial stop, defendant consented to the search of his vehicle. In addition, prior to giving his consent, defendant had admitted he had drugs in his vehicle. This provided a reasonable basis to extend the detention during the investigation. The officers did not detain defendant for longer than was necessary to complete their investigation or dispel their suspicions that defendant was involved in the transportation or possession of narcotics. We find that defendant's detention was not unduly prolonged.
3. Consent to search
Lastly, defendant asserts he did not voluntarily consent to the search of his vehicle, because it was a product of police coercion. We again disagree.
"[A] search authorized by consent is wholly valid" (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222 [36 L.Ed.2d 854, 93 S.Ct. 2041]), because consent is one of the "specifically established exceptions to the requirements of both a warrant and probable cause . . . . [Citations.]" (id. at p. 219). To be voluntary, consent cannot be "coerced, by explicit or implicit means, by implied threat or covert force." (Id. at p. 228.) The prosecution bears "'the burden of proving that the consent was, in fact, freely and voluntarily given.' [Citations.]" (Id. at p. 222.) "While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent." (Id. at p. 227.) Nor is it always necessary for police officers to inform citizens of their right to refuse to consent. Whether consent was voluntary "is a question of fact to be determined from the totality of all the circumstances." (Ibid.)
In this case, when Detective Lackey asked defendant for consent to search the vehicle, defendant could have refused as he readily showed that he could when he initially refused to allow Officer Wood to search the vehicle. Based on the nature of defendant's detention, defendant's consent was not coerced. The duration of defendant's detention was brief. The detention was not overly intrusive. There was no evidence that the officers asserted any unnecessary coercion or force upon defendant to obtain his consent. Moreover, there was no evidence that the officers drew their weapons or that they used deceptive practices to obtain defendant's consent. Defendant was not subjected to repeated questioning or coercive questioning. In addition, although there were four officers present, there is no evidence to suggest these officers employed coercive tactics or intimidated defendant. The record demonstrates that only two officers spoke with defendant or had contact with defendant. Furthermore, defendant was never handcuffed or placed under arrest. In fact, due to defendant's cooperation, defendant was allowed to leave following the discovery of the methamphetamine. Based on the totality of the circumstances, we agree with the trial court that defendant's consent to search was voluntary.
Defendant pled guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1) and transportation of a methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 2), and admitted he had a prior violation of Health and Safety Code section 11378 (Health & Saf. Code, § 11370.2, subd. (c)). In return, the remaining allegations were dismissed and defendant was sentenced to the stipulated term of six years in state prison as follows: the middle term of three years on count 2, plus an additional three years for the prior allegation pursuant to Health and Safety Code section 11370.2, subdivision (c); and the middle term of two years on count 1 to run concurrently to count 2.
Defendant contends, and the People concede, that defendant's sentence on count 1 should have been stayed pursuant to Penal Code section 654.
Penal Code section 654, subdivision (a) provides, in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Penal Code section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; see also People v. Centers (1999) 73 Cal.App.4th 84, 98 [Fourth Dist., Div. Two].) "The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
In this case, we agree with the parties that under Penal Code section 654, the trial court erred in imposing a concurrent sentence for count 1. The offenses of transportation of methamphetamine and possession of methamphetamine for sale were committed pursuant to a single intent and objective. Under Penal Code section 654, defendant could be punished for one conviction, but not both. (See In re Adams (1975) 14 Cal.3d 629, 633 [applying Pen. Code, § 654 to Health and Safety Code offenses].) Further, defendant's plea agreement states that his sentence on count 1 will be stayed pursuant to Penal Code section 654. Therefore, the judgment should be modified to reflect that the sentence on count 1 is stayed.
III
DISPOSITION
The judgment is modified to stay execution of the sentence on count 1 (possession of methamphetamine for sale). The trial court is directed to amend the minute order of July 23, 2010, and the abstract of judgment to reflect the modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.) The judgment as thus modified is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
MILLER
J.