Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FVI022578. Eric M. Nakata, Judge.
Richard L. Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant appeals the trial court’s denial of his motion to suppress evidence seized as a result of a detention and search conducted by a probation officer on August 31, 2005. He also contends the trial court erroneously imposed three crime-bail-crime enhancements under Penal Code section 12022.1, even though he was only charged with two. While this appeal was pending, defendant submitted a supplemental letter brief contending the trial court imposed aggravated sentences in violation of his constitutional right to a jury trial based on the Supreme Court’s recent decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
FACTUAL AND PROCEDURAL HISTORY
On August 31, 2005, defendant was contacted by a probation officer while he was standing in a driveway with several other males. According to the probation officer, he detained and searched defendant because he saw defendant reach toward his waistline and feared he was reaching for a weapon.
Based on facts outlined in a police report, defendant filed a motion on November 29, 2005, seeking to suppress all evidence obtained as a result of the detention and search. The court held a preliminary hearing on December 7, 2005, and heard testimony by police officers, as well as the probation officer who allegedly conducted the unconstitutional detention and search. The court denied defendant’s motion to suppress during the preliminary hearing, finding the probation officer’s actions were appropriate under the circumstances. Defendant then renewed his motion to suppress on January 18, 2006. Commenting there was nothing new in the renewed motion, the trial court summarily denied it during a hearing on May 12, 2006.
Charges relating to defendant’s encounter with the probation officer on August 31, 2005, were later included in an eight-count consolidated information. Defendant was tried by a jury on all counts. The jury reached a verdict on some counts but not others. Except as outlined in our discussion below, many of the charges and the jury’s corresponding verdicts are not relevant to the issues raised on appeal. The offenses relevant to defendant’s constitutional challenge to the denial of his motion to suppress were charged in counts 3 through 6 of the consolidated information and include, resisting an executive officer in violation of Penal Code section 69 (count 3); possession of a firearm by a prior felon in violation of section 12021, subdivision (a)(1) (count 4); carrying a loaded firearm by a gang member in violation of section 12031, subdivision (a)(2)(C) (count 5); and possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a) (count 6).
All further statutory references are to the Penal Code unless otherwise specified.
The jury convicted defendant of count 3, resisting an executive officer, and count 6, possession of a controlled substance. However, the jury was unable to reach a verdict on count 4, possession of a firearm by a prior felon, and count 5, carrying a loaded firearm by a gang member. At the time of sentencing, the trial court dismissed counts 4 and 5.
Special allegations made as to counts 3, 6, and 8 are relevant to the sentencing issues raised in defendant’s appeal. On counts 3 and 6, it was alleged pursuant to section 186.22, subdivision (b)(1)(A), that defendant resisted arrest and possessed a controlled substance for the benefit of a criminal street gang. The jury found this allegation true as to resisting arrest (count 3). However, the jury was unable to reach a decision as to whether defendant possessed a controlled substance (count 6) for the benefit of a criminal street gang.
On counts 3 and 6, it was alleged that defendant resisted arrest and possessed a controlled substance while on bail in case No. FSB048945. The jury found these allegations true as to both counts 3 and 6. An on-bail allegation was also made as to count 8, street terrorism, but for case No. FV1022578, and the jury also found this allegation to be true.
The trial court sentenced defendant to a total of 21 years and eight months in state prison. To reach the sentence, the trial court considered the verdicts and findings outlined above, aggravating circumstances, and two prior convictions within the meaning of section 667.5, subdivision (b). Two aggravated terms imposed on count 3 are relevant to defendant’s constitutional claims under Cunningham. Specifically, the trial court selected count 3 as the principal offense, and imposed an upper term of three years doubled pursuant to section 1170.12, subdivision (c), to six years for the offense of resisting arrest. The court then imposed an upper term of four years as a result of the street gang enhancement to count 3.
DISCUSSION
I. Constitutionality of Search and Seizure
Defendant contends the detention and search of his person by a probation officer on August 31, 2005, were unreasonable under the Fourth Amendment because the officer did not have reasonable suspicion when he approached defendant. Rather, defendant argues there was no reasonable suspicion to justify detaining him because the officer did not observe any illegal activity and approached him without consent while he was standing on a driveway that was private property.
“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.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
“[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” (Illinois v. Wardlow (2000) 528 U.S. 119, 123.) “While ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop.” (Ibid.) When standing alone, factors such as the time and location of an encounter are not enough to establish reasonable suspicion but may be sufficient when combined with other information available to the officer at the time of the detention. (Id. at p. 124 [“officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation”]; People v. Medina (2003) 110 Cal.App.4th 171, 177 [“the time and location of an encounter are insufficient by themselves to cast reasonable suspicion on an individual”].) We may also consider the officer’s training and experience in evaluating particular situations. (United States v. Cortez (1981) 449 U.S. 411, 418.)
By contrast, “[c]onsensual encounters do not trigger Fourth Amendment scrutiny.” (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.), citing Florida v. Bostick (1991) 501 U.S. 429, 434.) “Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime.” (Ibid.) “[A] detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur.” (Ibid.)
Courts apply a totality of circumstances approach to determine whether a particular encounter is reasonable under the Fourth Amendment. (Manuel G., supra,16 Cal.4th at p. 821.) Under a totality of circumstances approach, courts must evaluate “the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer’s display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer’s request might be compelled.” (Ibid.)
The probation officer who detained defendant testified at the preliminary hearing when defendant’s original suppression motion was being considered by the court. The probation officer was an experienced member of a regional gang task force and specialized in gang investigations. He testified he was conducting probation checks because there had been a gang shooting in the area the previous night. The probation officer and his partner were following up on leads and looking for any evidence related to the shooting. They observed five Black males walking in the driveway of a probationer, so they decided to stop and make contact with them.
Based on his experience dealing with gang members, the probation officer testified he especially wanted to make contact with defendant because he “was dressed in a red shirt and black shoes with red shoe laces and tattoos which is indicative of a Blood gang member.” However, when the probation officer got out of the car and walked toward the group, defendant “dipped into his waistband with both hands . . . .” Defendant then turned his back toward the probation officer, so the probation officer could not see what he was doing. Particularly given the shooting of a Blood gang member the night before, the probation officer stated defendant’s behavior was suspicious because this is not usually how someone reacts when he approaches. At this point, the probation officer became concerned defendant was reaching for a concealed weapon, and, as a result, a routine consensual encounter quickly turned into a detention and search. The probation officer directed defendant to stop and show his hands. Because defendant put both hands into his waistband and turned his back so the officer could not see what he was doing, the officer reached toward defendant and attempted to grab him. However, defendant was able to get away. He then began cursing at and backing away from the officer. According to the officer, defendant was very agitated and a difficult struggle developed which only came to a stop when the officer’s partner shot defendant with a taser gun. The probation officer later found a loaded handgun near the point where the struggle ended.
Viewing the totality of information available to the probation officer when he told defendant to stop and show his hands, we conclude the circumstances were sufficient to establish a reasonable, articulable suspicion that justified a detention of defendant to determine whether his activity was in fact legal or illegal. In our view, the evidence shows the probation officer attempted to initiate a routine consensual encounter with defendant but was prompted to detain defendant because of his actions, which represented a threat to the safety of the officers present at the scene. Defendant’s contention he was standing on private property with no specific, outward appearance of criminality, even if supported by the evidence, is of no consequence. “ ‘The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.’ ” (People v. Souza (1994) 9 Cal.4th 224, 233 (Souza).)
The evidence presented to the court during the preliminary hearing shows the probation officer was in the area for legitimate reasons, particularly given the shooting the night before, and defendant was standing on property occupied by a probationer. Defendant’s subsequent actions when the probation officer approached him were suspicious, creating a threat to the safety of the officers, and there was nothing to eliminate the possibility criminal activity was afoot. In other words, the totality of the circumstances were ambiguous once defendant put his hands in his waistband and turned away so the officer could not see what he was doing. At this point in time, the officer was entitled to detain defendant to resolve the ambiguity and determine whether the activity was lawful or unlawful, even if the officer did not know for certain what specific crime may have been afoot. (Souza, supra,9 Cal.4th at p. 242; People v. Foranyic (1998) 64 Cal.App.4th 186, 190.) Therefore, exercising our independent judgment, we cannot disagree with the trial court’s decision to deny defendant’s motion to suppress.
II. Crime-Bail-Crime Enhancements
Defendant argues the trial court erroneously imposed three enhancements pursuant to section 12022.1 but should only have imposed two. He claims only two enhancements under section 12022.1 could be properly imposed because the People only pled two. Although for a different reason, the People agree defendant is entitled to have one enhancement stricken and the abstract of judgment modified. For the reasons outlined by the People, we agree that one of the enhancements imposed pursuant to section 12022.1 should be stricken.
Section 12022.1, subdivision (b), provides as follows: “Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court.” An “on-bail” enhancement under section 12022.1, subdivision (c), “shall be pleaded in the information or indictment” and can be “imposed only once in a particular case.” (People v. Augborne (2002) 104 Cal.App.4th 362, 377.)
Here, the People properly pled two on-bail enhancements under section 12022.1, because the crimes charged in this case (i.e., the “secondary” offenses) were alleged to have been committed when defendant was released on bail in two separate “primary” cases. The jury found these allegations true as to counts 3, 6, and 8. Based on the jury’s verdict, counts 3, 6, and 8 were committed when defendant was released on bail in case No. FSB048945, and count 8 was also committed while defendant was released on bail in case No. FVI022578. As a result, defendant was subject to only two on-bail enhancements of two years each for a total of four years, consecutive to “any other term imposed by the court.” (§ 12022.1, subd. (b).) However, as defendant contends, the record indicates the trial court imposed three on-bail enhancements under section 12022.1 for a total of six years. We therefore conclude defendant is entitled to have one on-bail enhancement stricken and to have the judgment corrected.
III. Sentencing
Relying on the Supreme Court’s recent decision in Cunningham, supra, 127 S.Ct. 856, defendant argues the trial court violated his right to a jury trial by imposing aggravated, upper term sentences based on multiple factors which were not found true by a jury. On count 3, resisting an executive officer, the trial court imposed the upper term of three years, which was doubled to six years pursuant to section 1170.12, subdivision (c)(1). On the gang enhancement to count 3 (§ 186.22, subd. (b)(1)(A)), the trial court imposed the upper term of four years.
The People contend defendant forfeited these claims because at the time he was sentenced, the Supreme Court had already issued two decisions on this issue in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and Blakely v. Washington (2004) 542 U.S. 296 (Blakely). According to the People, these cases provided defendant with a basis for a constitutional objection to the imposition of aggravated terms on constitutional grounds, but defendant failed to object. However, defendant was sentenced on August 24, 2006. At that time, the trial court was bound by People v. Black (2005) 35 Cal.4th 1238, which was decided on June 20, 2005. In People v. Black, our Supreme Court concluded Apprendi and Blakely did not impact California’s sentencing law. As a result, it would have been futile for defendant to object at the time of sentencing on the constitutional grounds presented in this appeal. Therefore, we will address the substance of defendant’s claims.
While this case was pending, the Supreme Court overruled Black. We therefore considered appellant’s supplemental briefing on this issue. The Supreme Court in Cunningham, supra, 127 S.Ct. at pages 863-864, concluded California’s determinate sentencing law (DSL) violates a criminal defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. Other than the fact of a prior conviction, the Supreme Court in Cunningham also concluded the statutory middle term is the maximum or presumptive sentence a judge may impose based on its own factual findings. (Ibid.)
Here, some of the aggravating factors the trial court relied on to impose upper terms on count 3 and the enhancements to count 3 fall within the “prior conviction” exception to the constitutional rule set forth by the Supreme Court in Cunningham. (People v. Black (2007) 41 Cal.4th 799, 811-820.) The trial court noted during sentencing that defendant had incurred prior convictions as an adult, had served prior prison terms, and had previously performed unsatisfactorily on probation. Under these circumstances, a defendant is not “legally entitled” to the middle term sentence, and the upper term is therefore the “statutory maximum” that a trial court may impose without violating constitutional requirements. (Ibid.) Nor is it constitutionally significant that in imposing the upper term the trial court also relied on other aggravating circumstances related to the current offenses. (Ibid.) In short, the trial court in this case did not violate defendant’s constitutional right to a jury trial by imposing the upper term. Because we conclude there was no constitutional violation, harmless error analysis is unnecessary.
Defendant testified at trial in his own defense and admitted he had previously been convicted of burglary in 1998 and corporal injury on a spouse and resisting arrest in 2001. These prior convictions are consistent with those listed in the probation report the trial court relied on in imposing the sentence.
DISPOSITION
The judgment is affirmed as modified. The superior court is directed to strike one on-bail enhancement imposed under section 12022.1 and to prepare an amended abstract of judgment reflecting that only two enhancements were imposed under section 12022.1. The superior court is directed to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: McKINSTER, J., RICHLI, J.