Opinion
NOT TO BE PUBLISHED.
Appeal from a judgment of the Superior Court of Kern County, No. BF125809A, Michael B. Lewis, and Michael G. Bush Judges.
Judge Bush ruled on appellant's motion to suppress evidence. Judge Lewis sentenced appellant.
Sara H. Ruddy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., Gomes, J.
Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), appellant Eric General Wandick pled no contest to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)). The court imposed a sentence of one year, representing one-third of the midterm, to be served consecutively to a sentence imposed in another case. The court also awarded appellant six days of presentence custody credit, consisting of four days of actual time credit and two days of conduct credit.
On appeal, appellant contends (1) the court erred in denying his suppression motion because he was unlawfully detained and his detention was unduly prolonged, and (2) he is entitled to additional conduct credit. We will affirm.
FACTS
Sergeant Bobby Ray Woolard of the Bakersfield Police Department testified to the following: On the morning of November 30, 2008 (November 30), a homicide occurred “near the intersections of California and Chester” in Bakersfield. From a broadcast by officers at the scene and a briefing later that day, Sergeant Woolard learned that the suspects in the homicide were two black males, one of whom was armed, and both were riding in a “possible red in color 2005 Chevy Impala” with black rims and damage to the front bumper
The parties stipulated that a “suspect wanted notice,” dated November 30 at “0008 hours, that’s eight hours [sic] after midnight,” stated that the suspect vehicle was a “four-door Impala, possible 2005,” with a “small dent or scratch on front passenger side bumper.” The parties also stipulated that “[a Bakersfield Police Department report indicated] the description was obtained from a witness by the name of Renteria”; he “stated that he observed the subject vehicle being red 2000 to 2001 Chevrolet Impala with tinted rear windows and a dent in the passenger side rear bumper and that that information was obtained around the same time as the Bakersfield suspect wanted notice [to which the parties] previously stipulated.”
The time designation 0008 hours is eight minutes after midnight.
Sergeant Woolard further testified that he was on duty when, at approximately 10:30 p.m. on November 30, near the Garden Suites Inn on Wible Road, he saw what appeared to be a “maroon or burgundy” four-door Dodge Charger with black rims. There was “[m]inor” damage to the front bumper, specifically, “several scratches that appear[ed] to be paint transfer....”
Except as otherwise indicated, the remainder of our factual statement is taken from Sergeant Woolard’s testimony.
The Chevrolet Impala and the Dodge Charger are “similar” cars. Sergeant Woolard effected a stop of the Charger because he “believed there was enough reasonable suspicion... to stop the car...” to determine if it was the one involved in the reported homicide. He based that determination on the following: “The color and the damage to the vehicle, the occupant that was driving the vehicle, the understanding that many similar crimes in the past where witnesses sometimes believe vehicles match a certain car, but they may be off by a model or a year. But the general make of it is similar enough... to make an investigative stop on it to ensure that it’s not actually involved in the murder that morning.”
Appellant was the driver of the Charger. The “travel distance” between the scene of the homicide and the Garden Suites Inn is approximately 3.8 miles.
Sergeant Woolard asked appellant for his identification but he did not remember if appellant gave it to him. At some point, another officer arrived on the scene to “take over the investigation....”
Officer Jeremy Blakemore of the Bakersfield Police Department testified that he was on duty on November 30, at approximately 10:30 p.m., when Sergeant Woolard called him to the scene of a vehicle stop. Officer Blakemore arrived on the scene and “[took] over the investigation of the stop.” He made contact with appellant, who was the driver of the vehicle. There was also a white female in the car. Approximately one month previously, Officer Blakemore “was involved with” the arrest of appellant for sale of methamphetamine.
The remainder of our factual statement is taken from Officer Blakemore’s testimony.
Officer Blakemore asked appellant if he was “on probation with search terms[.]” Appellant responded that he was on probation. Officer Blakemore performed a “records check” from which he learned that appellant was on probation and was subject to a “search term[]” for “stolen property.” The officer asked appellant if he could search the vehicle, and appellant responded, “Sure, go ahead.”
Officer Blakemore searched the car and found a card key to a room at the Garden Suites Inn. Appellant confirmed he was staying there. The officer then asked appellant if there were drugs in the room. Initially, appellant answered no, but then stated that in the room the officer would find “cut,” a substance the officer described as “[a] product commonly used by narcotics dealers to add to their narcotics to make a larger quantity.”
Before searching the room, Officer Blakemore asked appellant if he had any drugs on his person. Appellant said he did, and produced a baggie containing approximately eight grams of marijuana. The officer placed appellant under arrest.
Subsequently, in searching the motel room, Officer Blakemore found, among other things, a prescription bottle filled with cut. Thereafter, the officer conducted a strip-search of appellant and found two bindles of methamphetamine concealed in toilet paper between appellant’s buttock cheeks.
DISCUSSION
Suppression Motion
“The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees the right to be free of unreasonable searches and seizures. (U.S. Const., 4th Amend)” (People v. Gallegos (2002) 96 Cal.App.4th 612, 622.) A “brief investigative stop[]” of a person, commonly referred to in the case law as a detention, is a seizure within the meaning of the Fourth Amendment. (People v. Souza (1994) 9 Cal.4th 224, 229.)
Appellant first argues as follows: The detention that occurred when Officer Woolard stopped appellant’s car violated appellant’s Fourth Amendment rights because the facts known or apparent to the officer were not sufficient to give rise to a reasonable suspicion that appellant had been involved in criminal activity; the methamphetamine discovered when he was later strip-searched was the product of that unlawful detention; and therefore the methamphetamine should have been suppressed.
“To justify... [a] detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity. [Citations.] This reasonable suspicion requirement is measured by an objective standard, not by the particular officer’s subjective state of mind at the time of the stop or detention.” (People v. Conway (1994) 25 Cal.App.4th 385, 388.) “Accordingly, the circumstances known or apparent to the officer must be such as would cause a reasonable law enforcement officer in a like position, drawing when appropriate on his or her training and experience, to suspect that criminal activity has occurred, is occurring, or is about to occur and that the person to be stopped or detained is involved in the activity.” (Id. at p. 389.) “The corollary to this rule is that an investigative stop or detention predicated on circumstances which, when viewed objectively, support a mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in good faith.” (Ibid.)
“The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’” (Pennsylvania v. Mimms (1977) 434 U.S. 106, 108-109.) “Reasonable suspicion cannot be reduced to a neat set of legal rules, but must be determined by looking to ‘the totality of the circumstances - the whole picture.’” (United States v. Jordan (5th Cir. 2000) 232 F.3d 447, 449, quoting United States v. Sokolow (1989) 490 U.S. 1, 7-8.) Under this standard, a detention requires only a “minimal level of objective justification” (Illinois v. Wardlow (2000) 528 U.S. 119, 120), and an officer may initiate one “based not on certainty but on the need to ‘check out’ a reasonable suspicion” (United States v. Clark (D.C. Cir. 1994) 24 F.3d 299, 303). “‘The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal....’” (People v. Souza, supra, 9 Cal.4th at p. 233.)
“The prosecution [bears] the burden of proving some justification for [a] warrantless search or seizure....” (People v. Williams (1999) 20 Cal.4th 119, 136.) In reviewing the denial of a suppression motion, “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.)
Appellant contends the facts known or apparent to Officer Woolard were not sufficient to give rise to a reasonable suspicion that appellant had been involved in the reported homicide for the following reasons: that crime occurred almost 24 hours before, and 3.8 miles from the scene of, the reported crime, and therefore “[t]here was no proximity of time or place”; the car appellant was driving differed in make, model and color from the car reportedly involved in the crime; the suspect car was occupied by two black men, whereas appellant was accompanied by a white woman; and the damage the officer observed on the Charger “was not in the same place as the damage reported on the suspect car.” “In short,” appellant argues, “all Officer Woolard had to go on was the presence of a black man in a car that did not closely resemble the description of the car allegedly driven by the suspects in the homicide.” We disagree.
First, although the suspect vehicle was a “possible” 2005 Chevrolet Impala, according to the description provided to Officer Woolard, whereas appellant was driving a Dodge Charger, Officer Woolard testified that in his experience witnesses sometimes incorrectly identify cars by model, and that a Chevrolet Impala and a Dodge Charger are similar in appearance. (See People v. Rico (1979) 97 Cal.App.3d 124, 132 [“Witnesses and [c]rime victims often have limited opportunity for observation, their reports may be hurried, perhaps garbled by fright or shock”]; People v. Smith (1970) 4 Cal.App.3d 41, 48-49 [where there are discrepancies, “It is enough if there is adequate conformity between description and fact to indicate to reasonable officers that detention and questioning are necessary to the proper discharge of their duties”]; People v. Conway, supra, 25 Cal.App.4th at p. 389 [officer’s training and experience is a relevant factor in evaluating reasonableness of police officer’s decision to detain suspect].) Moreover, photographs of a 2005 Chevrolet Impala and the Dodge Charger appellant was driving were introduced into evidence; we have viewed those photographs; and they support the conclusion that the two vehicles are similar in overall shape.
Second, the record does not compel the conclusion that the Dodge Charger, which Officer Woolard described as maroon or burgundy, was, as appellant asserts, a different color than the suspect vehicle, which was described as red. Burgundy and maroon can be characterized as shades of red, and the photograph of the Dodge Charger depicts a vehicle that a witness easily could have been described as red.
Third, there was a specific point of similarity between the two vehicles: Officer Woolard testified he received information that the suspect car had damage to the front bumper, and that he observed that the front bumper of the Dodge Charger was also damaged. Appellant does not support with any citation to the record, his claim that the damage the officer observed on the Charger “was not in the same place as the damage reported on the suspect car,” but presumably he bases this claim on the parties’ stipulation that according to a police report, a witness observed that the vehicle involved in the earlier crime had a “dent in the passenger side rear bumper.” (Italics added.) This piece of evidence, however, does not compel the conclusion that that particular witness was the only witness providing the information that eventually reached Officer Woolard, or that the only damage to the suspect vehicle reported to police was that reported by that particular witness. Indeed, at the suppression motion hearing, defense counsel (1) acknowledged there were “several” 911 calls that provided the police with descriptions of the suspect vehicle, and (2) stated that “the information provided to the police department was [that the suspect vehicle had] a dent on the passenger side rear bumper as well as the apparent damage to the passenger side front bumper.” (Italics added.) On this record, the court reasonably could have concluded, based on Officer Woolard’s testimony, that both the suspect vehicle and the car appellant was driving had damage to the front bumper.
Finally, two other factors provide some support for our conclusion that Officer Woolard reasonably suspected that appellant had been involved in the earlier crime: First, appellant is black, as was the driver of the suspect vehicle; and second, appellant was observed less than four miles from the scene of the crime at 10:30 p.m. on November 30, apparently less than 23 hours after the crime, which, as indicated by police records to which the parties stipulated, occurred shortly after midnight the previous night. Neither of these factors is a particularly strong indicator that appellant was in the suspect vehicle at the time of the reported homicide, but neither are they without significance in our consideration of the totality of the circumstances.
To summarize, those circumstances include the following: appellant was observed driving a Dodge Charger, a car model similar in overall shape to a car reportedly involved in a homicide that occurred less than 23 hours before at a location less than four miles from the scene of the reported crime; the Charger, like the suspect car, was a shade of red and had damage to the front bumper; and appellant is black, as were the two occupants of the suspect car. In our view, the circumstances summarized above provided the “minimal level of objective justification” (Illinois v. Wardlow, supra, 528 U.S. at p. 119) required for a brief investigative detention.
Appellant also argues that “the complete lack of evidence that either [of the two officers] involved in the stop took any steps to follow through on the ostensible reason for the stop compels the conclusion that the detention was unnecessarily prolonged in violation of [appellant’s Fourth Amendment rights].” Appellant bases this contention on the following principles: A detention will be deemed unconstitutional “when extended beyond what is reasonably necessary under the circumstances that made its initiation permissible. [Citation.]” (People v. Russell (2000) 81 Cal.App.4th 96, 101-102.) Thus, “the police [must] diligently pursue[ ] a means of investigation reasonably designed to confirm or dispel their suspicions quickly. [Citations.]” (Id. at p. 102.)
The People counter that appellant did not provide the prosecution with adequate notice of this basis for the suppression of evidence, and therefore appellant may not raise this issue on appeal. We agree.
In People v. Williams (1999) 20 Cal.4th 119 (Williams), our Supreme Court examined the specificity with which a defendant must make a motion to suppress evidence pursuant to Penal Code section 1538.5. “[W]hen the basis of a motion to suppress is a warrantless search or seizure, the requisite specificity is generally satisfied, in the first instance, if defendants simply assert the absence of a warrant and make a prima facie showing to support that assertion.” (Id. at p. 130.) Once the defendant meets the foregoing specificity requirement, “[t]he prosecution... has the burden of proving some justification for the warrantless search or seizure....” (Id. at p. 136.)
But, the court stated further, “once the prosecution has offered a justification for a warrantless search or seizure, defendants must present any arguments as to why that justification is inadequate. [Citation.] Otherwise, defendants would not meet their burden under section 1538.5 of specifying why the search or seizure without a warrant was ‘unreasonable.’ This specificity requirement does not place the burden of proof on defendants. [Citation.] … [T]he burden of raising an issue is distinct from the burden of proof. The prosecution retains the burden of proving that the warrantless search or seizure was reasonable under the circumstances. [Citations.] But, if defendants detect a critical gap in the prosecution’s proof or a flaw in its legal analysis, they must object on that basis to admission of the evidence or risk forfeiting the issue on appeal.” (Williams, supra, 20 Cal.4th at p. 130.) “Defendants cannot... lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked.” (Id. at p. 131.) “Defendants who do not give the prosecution sufficient notice of [the] inadequacies [in the prosecution’s proposed justification for a warrantless search or seizure] cannot raise the issue on appeal.” (Id. at p. 136.)
Appellant contends he complied with the Williams specificity requirements because he stated in his moving papers that (1) after Officer Woolard stopped him, “Various police officers, including Officer Jeremy Blakemore continued to detain, question, and search [appellant] …” and (2) “[o]fficers unconstitutionally stopped, detained, continued to detain [him] ….” (Italics added.) The language italicized above, appellant argues, “explicitly put the prosecution on notice that the continuation of the detention was an issue that it should address.”
However, as indicated above, Williams makes clear that after appellant, in his moving papers, put the prosecution on notice that he intended to challenge the seizure of evidence based on the length of the detention, it was appellant’s further responsibility to challenge the prosecution’s response, or lack of response, to this claim. In the language of the Williams court, if appellant “detect[ed] a critical gap in the prosecution’s proof or a flaw in its legal analysis,” appellant was required “to object on that basis to admission of the evidence....” (Williams, supra, 20 Cal.4th at p. 130.)
Here, the prosecution put on no evidence and made no legal argument, in either its moving papers or at the suppression motion hearing, in response to appellant’s claim that police “unconstitutionally... continued” the detention. Appellant, however, did not object to this “gap” in the prosecution’s proof or to the absence of any legal analysis of the issue. There was simply no discussion by either party at the suppression motion hearing of the question of whether police extended the detention “beyond what [was] reasonably necessary under the circumstances that made its initiation permissible.” (People v. Russell, supra, 81 Cal.App.4th at pp. 101-102.) Under Williams, therefore, appellant has forfeited his right to raise on appeal the claim that the detention was unduly prolonged.
Presentence Conduct Credit
Under Penal Code section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a)). In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
All further statutory references are to the Penal Code.
The court sentenced appellant in February 2009, and, as indicated above, at that time awarded him six days of presentence credit, consisting of four days of actual time credit and two days of conduct credit. The court calculated appellant’s conduct credit in accord with the version of section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.) However, the Legislature amended section 4019 effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody. We refer to this amendment to section 4019 as “the amendment.”
In a supplemental brief, appellant contends the amendment is retroactive, i.e., it applies to persons who were sentenced before the amendment’s effective date but whose cases are not final as of the amendment’s effective date. Therefore, appellant argues, because (1) he is not required to register as a sex offender and he has not been convicted of a serious or violent felony and therefore meets the eligibility requirements for section 4019 credits; (2) he was sentenced before the effective date of the amendment; and (3) his case was not final as of that date, the more generous conduct credit accrual provisions of the current version of section 4019 apply to him and he is entitled to additional conduct credit.
We disagree with appellant. As we explained in the recent case of People v. Rodriguez (March 1, 2010, F057533) __ Cal.App.4th __ [pp. 5-10] (Rodriguez)), filed after the parties submitted briefing on this issue, under section 3, the amendment is presumed to operate prospectively only, that presumption has not been rebutted and therefore the amendment does not apply retroactively. We adhere to the reasoning and result in Rodriguez. Thus, appellant is not entitled to additional conduct credit under the amendment.
Section 3 provides “No part of [the Penal Code] is retroactive, unless expressly so declared.” Our Supreme Court has “construed [section 3] to mean ‘[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise.’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.)
In addition, we note this court, in its “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing” of February 11, 2010, ordered that in pending appeals in which the appellant is arguably entitled to additional conduct credit under the amendment, we would deem raised, without additional briefing, the contention that prospective-only application of the amendment violates equal protection principles. Accordingly, we deem that contention raised here.
As we held in Rodriguez, the prospective-only application of the 2010 amendment does not violate the constitutional guarantee of equal protection of the laws. (Rodriguez, supra, __ Cal.App.4th __ [pp. 10-12].) For the reasons stated in Rodriguez, we reject the contention to the contrary.
DISPOSITION
The judgment is affirmed.