Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB041480 David Cohn, Judge.
Steven A. Torres, 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, Assistant Attorney General, Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
A jury found defendant guilty of possession of methamphetamine, a controlled stubstance, (Health & Saf. Code, § 11377, subd. (a)) (count 1) and receiving stolen property (Pen. Code, § 496, subd. (a)) (count 2). In a bifurcated proceeding, the trial court found true that defendant had previously sustained three prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). After the court denied defendant’s motion to strike one or more of his prior strike convictions, defendant was sentenced to 25 years to life on count 1 and a concurrent 25 years to life on count 2. On appeal, defendant contends (1) the trial court erred in denying his suppression motion, and (2) the trial court abused its discretion in denying his motion to strike one or more of his prior strike convictions. We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
On October 15, 2003, at 3:30 a.m., Colton Police Department Officer James Jolliff was on patrol when he observed defendant walking on the sidewalk of a residential neighborhood. The officer noticed defendant had a “protrusion of some significance” from his waistband area, underneath his shirt. When the officer stopped his patrol vehicle and began to exit the vehicle to make contact with defendant, defendant immediately ran toward an adjacent residential home and began jumping backyard fences to evade the officer. A chase ensued; defendant failed to stop despite the officer’s repeated demands to do so.
Upon losing sight of defendant, Officer Jolliff radioed for assistance. Officer Mark Keyser responded to the call and saw defendant running. Officer Keyser pursued defendant and eventually apprehended him. A search of defendant’s person revealed a useable amount of methamphetamine in defendant’s front pocket. A search of a fanny pack defendant had around his waist revealed $300 in cash, a wallet, and a hypodermic needle and syringe. A nylon bag found near defendant contained numerous pieces of jewelry that had been stolen from a home five to six blocks away.
Defendant testified that he was on his way home from a drug dealer’s house, where he had gone to complain about the poor quality of drugs he had bought, when he saw the police. There was another person with him. When the officers approached them, both he and the other person ran in the same direction, over fences, and into backyards. He ran from the police because he got scared. Defendant eventually stopped and complied with the officers’ directives. He claimed the fanny pack belonged to him but the other bag did not.
II
DISCUSSION
A. Suppression Motion
Defendant argues the trial court erred in denying his suppression motion, as the detention was improper and not based on reasonable suspicion he had been involved in criminal activity. We disagree.
At the motion to suppress hearing, Officer Jolliff testified that, as he was patrolling a residential area in Colton around 3:30 a.m., he noticed defendant walking with a “large bulge towards his waistband covered by his shirt . . . .” When the officer got closer, he noticed defendant appeared to be sweating, despite it being a cold night. The officer also noted that defendant turned away when he noticed the patrol unit. Based on these observations, the officer “went to initiate a pedestrian check for a suspicious subject.” The officer stopped his patrol vehicle and was about to exit the car when defendant started running away. Officer Jolliff pursued defendant, ordering him to stop as defendant jumped the first residential backyard fence. Defendant continued to run and jumped over multiple residential backyards.
The officer explained that common practice in working a graveyard shift is to initiate contact with a suspicious person usually in a “consensual manner and then develop probable cause to go further or determine that there is some reasonable explanation for the observations . . . and then they’re free to go.” The officer’s observations led him to attempt to initiate a consensual encounter with defendant to determine if he was involved in criminal activity.
Officer Keyser eventually detained defendant in someone’s backyard. Officer Jolliff identified defendant and conducted a patdown search for officer safety and incident to his arrest. The officer also recognized defendant from having had contact with him about three weeks earlier and knew defendant was on parole for burglary.
Following argument from counsel, the trial court denied the motion to suppress, finding the officer attempted to make a consensual encounter, but before defendant ran from the officer, jumping fences and running through multiple backyards. Once defendant ran, the officer had reasonable suspicion to detain defendant. The court further found that after defendant was detained, the officer had numerous reasons to search defendant -- pursuant to a parole search, officer safety, and search incident to arrest.
Defendant contends the trial court erred in finding the detention was proper as it was in violation of the Fourth Amendment.
“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.) Evidence may be suppressed only if the challenged search or seizure is in violation of the Fourth Amendment. (In re Lance W. (1985) 37 Cal.3d 873, 889-890.)
“ . . . A detention is reasonable under the Fourth Amendment 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.” (People v. Souza (1994) 9 Cal.4th 224, 231 (Souza).) “[C]ourts . . . consider ‘the totality of the circumstances -- the whole picture’ to determine whether a particular intrusion by police was justified. Any temporary detention includes factors that, considered together, may suggest either criminal or innocent behavior to trained police officers. 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.” (Id. at p. 239.)
“[F]light from police is a proper consideration -- and indeed can be a key factor -- in determining whether in a particular case the police have sufficient cause to detain.” (Souza, supra, 9 Cal.4th at p. 235, italics added.) Even if we were to agree with defendant that no objective inference of criminal activity may reasonably be inferred from the facts other than defendant’s flight, our conclusion that defendant’s flight was the key factor in a determination of reasonable suspicion of criminal activity is still based on “‘the totality of the circumstances -- the whole picture.’” (Id. at p. 231.)
In Illinois v. Wardlow (2000) 528 U.S. 119 [120 S.Ct. 673, 145 L.Ed.2d 570], uniformed officers were in the last car of a four-car caravan converging on a heavy narcotics trafficking area when they saw Wardlow standing beside a building holding an opaque bag. Wardlow looked in the direction of the officers and fled; they gave chase and caught him. A patsearch of the bag carried by Wardlow disclosed a handgun, which was illegal for Wardlow to possess. (Id. at pp. 121-122.) The United States Supreme Court held that Wardlow’s presence in a high drug trafficking area, coupled with his unprovoked flight upon noticing the police, provided reasonable suspicion to detain him for investigation. (Id. at pp. 124-125.)
Defendant argues that Wardlow is distinguishable because defendant here was not in a high-crime area. The argument is not persuasive.
Even assuming that the officer lacked reasonable cause to approach defendant when he first saw defendant, this avails defendant nothing. An “‘officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.’” (People v. Terrell (1999) 69 Cal.App.4th 1246, 1254.) When Officer Jolliff’s police car was approaching defendant, defendant did not know whether Officer Jolliff intended to detain him or simply was seeking a consensual encounter. Defendant fled as the officer was exiting his police car. Moreover, defendant did not simply walk away, he ran away, jumping multiple residential backyards at around 3:30 a.m. in an attempt to evade officers. Thus, for Fourth Amendment purposes, defendant’s flight was unprovoked and provided reasonable suspicion for his detention.
Defendant next argues that his flight in these circumstances cannot be converted into reasonable cause to detain him because defendant “had no duty to talk” to the officer and that flight was his only means of going on “with his business.”
Wardlow again is on point. After noting that Wardlow’s unprovoked flight had provided the officers with reasonable suspicion to investigate further, the court observed, “Such a holding is entirely consistent with our decision in Florida v. Royer, 460 U.S. 491, 75 L.Ed.2d 229, 103 S.Ct. 1319 (1983), where we held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. [Citation.] And any ‘refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.’ [Citation.] But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or stay put and remain silent in the face of police questioning.” (Illinois v. Wardlow, supra, 528 U.S. at p. 125.) In other words, while a suspect is walking away from an attempted police encounter will not, without more, provide a reasonable suspicion that the suspect may be involved in crime, running away will. We conclude the suppression motion was properly granted.
B. Motion to Strike Priors
Defendant next contends the trial court abused its discretion in denying his motion to strike one or more of his prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). In Romero, the Supreme Court held that the trial court may exercise its discretion under Penal Code section 1385, subdivision (a), to strike a prior strike allegation “‘in furtherance of justice.’” (Id. at p. 504.)
The trial court’s decision to dismiss or not to dismiss a prior strike allegation is reviewable on appeal under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) Under this standard, the defendant has the burden of establishing that the trial court’s determination was arbitrary or irrational. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
In Carmony, the California Supreme Court explained that “the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Carmony, supra, 33 Cal.4th at p. 378.) In light of this presumption, an abuse of discretion in declining to dismiss a strike occurs only in “limited circumstances.” (Ibid.) For example, where the trial court “was not ‘aware of its discretion’ to dismiss”; “where the court considered impermissible factors in declining to dismiss”; where application of the sentencing norms established by the three strikes law produces an “‘“arbitrary, capricious or patently absurd” result’ under the specific facts of a particular case”; or “where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme,” that is, where the relevant factors “manifestly support striking of a prior conviction and no reasonable minds could differ . . . .” (Ibid.) Discretion is also abused when the trial court’s decision to strike or not to strike a prior is not in conformity with the “spirit” of the law. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
But “[i]t is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where 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. Myers (1999) 69 Cal.App.4th 305, 310.) “Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Carmony, supra, 33 Cal.4th at p. 378, quoting People v. Strong (2001) 87 Cal.App.4th 328, 338.)
The touchstone of the analysis must be “whether, in light of the nature and circumstances of his 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.” (Williams, supra, 17 Cal.4th at p. 161; see also People v. Garcia (1999) 20 Cal.4th 490, 498-499.) A decision to dismiss a strike allegation based on its remoteness in time is an abuse of discretion where the defendant has not led a life free of crime since the time of his conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Defendant contends the court should have granted his request to strike one or more of his prior strike convictions given his current crimes were nonviolent; the remoteness of his priors; his life-long problems with drug use; and his old age, background, character, and prospects for changing his life.
In this case, the trial court denied defendant’s motion, and in light of the above-noted factors, we conclude that the trial court did not abuse its discretion in doing so. The relevant considerations supported the trial court’s ruling, and there is nothing in the record to show that the court declined to exercise its discretion on improper reasons or that it failed to consider and balance the relevant factors, including defendant’s personal and criminal background. In fact, the record clearly shows the court was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately applied the factors as outlined in Williams.
Defendant’s significant criminal history further supports the trial court’s denial of his motion. His criminal career began over 35 years ago and includes at least 10 prior felony convictions and numerous misdemeanor convictions. As the probation report reveals, defendant began the life of crime in 1973 when he was convicted of battery. He was subsequently convicted of burglary on seven different occasions from 1975 to 1987. He was also convicted of possession of a switchblade knife, battery, being a felon in possession of a firearm, petty theft, possession of a controlled substance, possession of a hypodermic needle/syringe, and forcible rape with a prior felony conviction. In fact, defendant has been in and out of prison since 1973 and had been unsuccessful on probation and parole. This case is far from extraordinary. Defendant has manifested a persistent inability to conform his conduct to the requirements of the law.
The court here could not overlook the fact defendant continued to commit serious criminal offenses even after repeatedly serving time in prison. His conduct as a whole was a strong indication of unwillingness or inability to comply with the law. He has also shown a proclivity for weapons and violent behavior through his prior conduct. Finally, he has shown his continual disregard for the law as evidenced by his continual parole violations and criminal convictions. It is clear from the record that prior rehabilitative efforts have been unsuccessful for defendant. Indeed, defendant’s prospects for the future look no better than the past, in light of defendant’s record of prior offense and reoffense and his underlying drug addiction. All of these factors were relevant to the trial court’s decision under Romero; there is no indication from the record here that the court failed to consider the relevant factors or that it failed to properly balance the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the three strikes law. (Williams, supra, 17 Cal.4th 148, 161.)
Defendant does not dispute his criminal history, and this history depicts a career criminal who “cannot be deemed outside the spirit of the Three Strikes law . . . .” (Williams, supra, 17 Cal.4th at 163.) Indeed, defendant appears to be “an exemplar of the ‘revolving door’ career criminal to whom the Three Strikes law is addressed.” (People v. Stone (1999) 75 Cal.App.4th 707, 717.) While we recognize that defendant’s recidivist status is not “singularly dispositive,” it is “undeniably relevant.” (People v. Garcia, supra, 20 Cal.4th at p. 501.)
In short, defendant was within the spirit of the three strikes law (see Williams, supra, 17 Cal.4th at p. 161), the trial court did not rule in an “arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice” (see People v. Jordan (1986) 42 Cal.3d 308, 316), and we find no abuse of discretion (see Romero, supra, 13 Cal.4th at p. 504).
III
DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER, J.