Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06CR11584
CANTIL-SAKAUYE, J.
Defendant William Whitaker unsuccessfully moved to suppress evidence seized when a sheriff’s deputy stopped him in a park near a bank robbery in Jackson. Defendant pled guilty to second degree robbery (Pen. Code, § 211) and admitted that he had two prior convictions within the meaning of the Three Strikes Law (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)) and two prior serious felony convictions (§ 667, subd. (a)), and that he had served three prior prison terms (§ 667.5, subd. (b)). The court sentenced defendant to an aggregate term of 38 years to life, consisting of: 25 years to life for robbery; an additional five years for each of two prior serious felonies; and one year for each of three prior prison terms.
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant argues that: (1) the court erred in denying his motion to suppress unlawfully seized evidence; (2) the court abused its discretion in declining to strike one or more of the prior convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497; (3) the court’s failure to exercise its discretion resulted in a cruel and unusual punishment; and (4) the court erred in imposing a one-year enhancement for the 1982 prior conviction. We agree with defendant’s last argument and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The hearing on defendant’s motion to suppress evidence revealed the following facts:
Rena McKinney was working as a dispatcher for the Jackson Police Department on the morning of November 29, 2006, when a person named Debbie called to report a bank robbery at the Bank of Amador. The caller described the robber as an older White male with a gray beard, wearing a blue ball cap and blue jacket. McKinney testified that Debbie was either a bank teller or supervisor. The other dispatcher sent police units in response.
Meanwhile, two women came into the police station to provide a description of the person they believed robbed the bank. They had been in the bank at the time of the robbery and described the robber as a White male in his 50’s or 60’s, with a gray beard, and wearing a light brown Carhartt jacket. The women told McKinney that they saw the robber en route to Detert Park, possibly in the area of the foot bridge. McKinney believed that the women might have been bank customers, but did not get their names because she was “real busy.” McKinney broadcast this additional information over the police department’s scanner.
Sergeant Todd Breedlove went to the Bank of Amador in response to the call. He viewed the bank surveillance video and described the suspect as an older White gentleman, possibly in his 60’s, with a grayish beard, wearing dark clothing, a blue baseball cap, blue shirt and brown jacket. Breedlove relayed that information to the officers in the field.
Sergeant Charles Ray of the Amador County Sheriff’s Office was on routine patrol in Jackson that morning. He heard the scanner advising Jackson police officers to be on the lookout for a bank robbery suspect who was described as “a [W]hite male adult, older, with gray beard, blue hat and a brown jacket.” The first radio dispatch indicated that the suspect had not displayed a gun but his note to the teller stated that he had one. After Ray assisted a Jackson officer with a stop, Breedlove directed him to North Main Street to look for the suspect.
While driving on North Main, Sergeant Ray heard the dispatch that someone had reported seeing a suspicious person walking across the foot bridge at Detert Park. Ray was in that area, but did not see anyone near the foot bridge. However, after turning north on Highway 49 toward the other side of Detert Park, Ray spotted a man later identified as defendant walking out of a fenced area of the park. Defendant was wearing a blue down jacket. He had long gray hair and a “very unusual” beard that “was almost cut even with the chin and yet still extended out in the cheeks.” Ray turned his vehicle around and pulled up behind defendant.
In his testimony, Sergeant Ray listed the following reasons for making contact with defendant: “His proximity to the bank, was walking away from the area, was . . . an older [W]hite male adult, had a grayish beard, although not as long as described. As I came up to him, he looked away from me and avoided eye contact and I felt that he was suspicious.” Ray acknowledged that defendant’s clothing did not match the description in the police dispatch.
Ray did not activate his red front lights and siren or draw his gun when he approached defendant. Ray greeted defendant with “Hey buddy, what’s going on?” Defendant did not respond. Ray noticed a large bulge in the left front pocket of defendant’s jacket. While walking defendant back toward his patrol vehicle, Ray explained that he was checking out a bank robbery that had just taken place down the road. Once defendant reached the patrol vehicle, he put his hand on top of the push bumper. Ray asked defendant if he had any weapons and defendant responded, “[N]o.” Sergeant Ray decided to do a patdown for weapons because of the large bulge in defendant’s jacket pocket and the fact that the dispatch warned that the suspect might be armed. He informed defendant that he was being detained, but was not under arrest, and Ray was going to pat him down for weapons. He placed defendant in handcuffs and proceeded with the patdown. Ray found a pair of fishing scissors, tobacco and a tin of cigarettes in defendant’s left front pocket. When he reached the right front pocket of defendant’s pants, Ray felt “a large wad that in [his] experience, as [he] manipulated [it] from the outside, felt like a roll of currency or other similar shaped and sized paper in a roll.” Ray had seen paper rolled up and used as a weapon in a jail environment. At that point, Sergeant Ray opened the top of the pocket far enough to confirm that the wad of paper was currency and not a weapon, but he did not remove it. Ray saw the corner of a $20 bill. Defendant told Ray that he got the money at work and was headed for the construction job site in Martell.
Sergeant Ray reiterated that defendant was not under arrest, but merely detained for further investigation. He radioed Jackson Police Chief Morrison who arrived a few minutes later. Ray watched Morrison remove the roll of currency from defendant’s pocket with defendant’s consent. Chief Morrison took the currency, still in a Bank of Amador wrapper, to his police unit. He returned after a few minutes and confirmed that the serial numbers matched the serial numbers on the money that had been taken from the bank.
DISCUSSION
I.
The Court Properly Denied the Suppression Motion
Defendant offers a multi-faceted argument in support of his claim that the court erred in denying his motion to suppress the currency and other evidence obtained as a result of his detention by Sergeant Ray. We conclude there is no merit in his claim of error and the detention was lawful.
A. Investigative Stops and Standards of Review:
“The Fourth Amendment to the United States Constitution prohibits seizures of persons, including brief investigative stops, when they are ‘unreasonable.’” (People v. Souza (1994) 9 Cal.4th 224, 229 (Souza), citing Terry v. Ohio (1968) 392 U.S. 1, 19 & fn. 16 [20 L.Ed.2d 889, 904-905] (Terry); see also Cal. Const., art. I, § 13.) “A seizure occurs whenever a police officer ‘by means of physical force or show of authority’ restrains the liberty of a person to walk away. [Citation.]” (Souza, supra, at p. 229.) A detention is reasonable under state and federal law when the officer can identify “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.” (Id. at p. 231.)
The court in People v. Coulombe (2000) 86 Cal.App.4th 52, a case similar to the one before us, summarized the law regarding the circumstances under which an officer may lawfully stop and search a suspect. “A police officer may temporarily detain and patsearch an individual if he believes that criminal activity is afoot, that the individual is connected with it, and that the person is presently armed. [Citation.] The issue is whether the officers can point to specific and articulable facts that give rise to a reasonable suspicion of criminal activity. Reasonable suspicion is a less demanding standard than probable cause and is determined in light of the totality of the circumstances. [Citation.] If the officer identifies himself and nothing acts to dispel his reasonable fear for his own or others’ safety, ‘he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.’ [Citations.] In determining the legality of a temporary detention, the court looks to the ‘totality of the circumstances’ to ascertain if it is supported by reasonable suspicion. [Citation.]” (Id. at p. 56, fn. omitted.)
“The standards for appellate review of the trial court’s determination on a motion to suppress pursuant to section 1538.5 are well settled. The trial court’s factual determinations are reviewed under the deferential substantial evidence standard; its determination of the applicable rule of law is scrutinized under the standard of independent review. [Citation.] We independently assess as a question of law whether, under such facts as found by the trial court, the challenged action by the police was constitutional. [Citation.]” (Coulombe, supra, 86 Cal.App.4th at pp. 55-56; accord People v. Kraft (2000) 23 Cal.4th 978, 1036.)
B. Sufficiency of the Evidence:
In denying defendant’s motion to suppress, the court found that “[t]he source of the information received by Sergeant Ray has been properly traced to an employee of the bank and two customers at the bank which was broadcasted to all the officers in the area.” Defendant ignores the evidence supporting this finding. Instead, defendant focuses solely on what he characterizes as an unreliable and unverified anonymous tip about “a suspicious person” on the foot bridge to argue that there is insufficient evidence to support the court’s factual findings.
Defendant relies on Florida v. J.L. (2000) 529 U.S. 266, 270 [146 L.Ed.2d 254, 260] which cautions that anonymous tips are unreliable because taken alone they “‘seldom demonstrate[] the informant’s basis of knowledge or veracity’ [citation].” There are, however, “situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’ [Citation.]” (Ibid.) One indicia is predictive information that can be corroborated by police investigation. (Alabama v. White (1990) 496 U.S. 325, 330-332 [110 L.Ed.2d 301, 309-310].)
In People v. Dolly (2007) 40 Cal.4th 458 (Dolly), the California Supreme Court upheld a detention and search which revealed a revolver hidden under the front seat of the suspect’s car. Police detained three men after receiving a radio report, based on an anonymous 911 call, that a light-skinned African-American male with a cast on his arm had just pulled a gun on the caller. The radio report stated than the assailant was possibly in a gray-colored Nissan on the north side of Jefferson Boulevard. (Id. at p. 462.) The court explained that the Fourth Amendment did not bar police from taking necessary action to protect public safety. (Id. at pp. 470-471.) The court continued: “In this case, the 911 call was a firsthand report of violent criminal conduct requiring an immediate response to protect public safety. The call was recorded, eliminating the possibility of after-the-fact police fabrication and allowing after-the-fact review (albeit limited) of the caller’s sincerity. The report was fresh, detailed, and accurate, and its description of defendant and his location was corroborated by the police within minutes. Under the totality of the circumstances, we find there was sufficient indicia that the 911 caller was able to see the criminal conduct he was reporting, that he was reporting it truthfully and accurately, and thus that the tip was sufficiently reliable to justify the limited intervention of an investigatory detention, which led to discovery of the loaded revolver.” (Id. at p. 471.)
Here, Sergeant Ray received information that was significantly more reliable than the information received by the police officers in Dolly. The dispatcher, Rena McKinney, received information from three sources in rapid succession. First, a call from “Debbie” reporting the bank robbery and describing the robber. Moments later, two women entered the police station and provided similar information. At the time, McKinney did not get their names, but since they knew about the robbery, concluded that they were bank customers. These women stated that the robber was heading in the direction of Detert Park, possibly the area of the foot bridge. Although all three women were “anonymous” in a technical sense in that McKinney did not get their names, their information could be considered reliable. Their reports were contemporaneous with events that occurred in the aftermath of the robbery. The two women’s descriptions of the robber were corroborated by the caller named Debbie’s description of the robber and the reports were “fresh, detailed, and accurate” as confirmed by Officer Breedlove when he reviewed the surveillance video. (Dolly, supra, 40 Cal.4th at p. 471.) It is unclear from the record whether police received a separate anonymous phone call reporting a suspicious person on the foot bridge, the fact on which defendant’s argument hangs. In any event, the evidence regarding the reports from the other three women provides ample support for the court’s factual finding.
C. The Reasonableness of the Detention:
The court found that Sergeant Ray was “justified in stopping the defendant who [in] this Court’s view substantially matched the description that was broadcasted over the radio. Not only was it objectively reasonable for the officer to suspect that the defendant was involved in this crime, it was also reasonable for the officer to search the defendant for weapons since he heard that . . . the threat by a gun was involved.” Defendant argues that “this detention was undertaken without reasonable suspicion.” He contends that the facts available to Ray at the time he detained defendant “did not amount to particularized, reasonable suspicion that [defendant] had committed a crime.” Defendant stresses that Ray did not know what time the robbery occurred, so temporal proximity was not a factor in his decision to detain defendant. Nor had Ray found defendant at the foot bridge as advised in the anonymous tip. Because Ray detained defendant on “a mere hunch,” defendant argues that the detention was unreasonable under Fourth Amendment standards.
We conclude that the circumstances identified by Sergeant Ray at the suppression hearing involved more than a mere hunch and easily gave rise to a reasonable suspicion that defendant was involved in the robbery. Ray did not mention the factors that defendant argues were missing. Ray relied instead on the defendant’s similarity to the physical description of the robber, defendant’s proximity to the scene of the bank robbery, and the fact that defendant avoided making eye contact with him. As to the physical description, Ray acknowledged that defendant’s beard was not as long as described. However, what Ray described as a “very unusual” beard and its color may well have been several of the circumstances that Ray properly considered in determining there was reasonable suspicion to justify the temporary detention.
D. The Reasonableness of the Patdown:
The court also responded to the contention that Sergeant Ray was not authorized to look inside defendant’s pocket after he felt the large wad of paper that felt like a roll of currency. After ruling that it was “reasonable for the officer to search the defendant for weapons since he heard that . . . the threat by a gun was involved,” the court also found “that . . . not only did the officer have the right to search for weapons which means to pat down the defendant for weapons, any weapons, he had the right to investigate any bulk in the defendant’s pockets anywhere on his body. Just because it was soft to the touch, didn’t mean there couldn’t have been a weapon inside.” Defendant maintains that the facts known to Ray prior to the patdown “do not support a reasonable suspicion that [defendant] was armed, dangerous, or involved in criminal activity.” Defendant also argues that the fact defendant looked away when Ray made eye contact with him did not justify a reasonable suspicion that defendant was a threat.
We disagree with defendant’s reading of the record and the law. Under Terry, supra, 392 U.S. at pp. 24, 30 [20 L.Ed.2d at p. 908, 911], “[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others” it is reasonable for the officer to conduct a limited search of the suspect’s outer clothing “to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” The Terry court explained, “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” (Id. at p. 27 [20 L.Ed.2d at p. 909].) In this case, Ray had been informed that the robber had threatened to use a gun. He was also approaching the suspect without the assistance of other officers. In light of these circumstances, a reasonably prudent person would have been justified in believing that his safety was in danger. (Ibid.) Moreover, defendant fit the description of the robber and was walking away from the crime scene, facts that established the reasonable suspicion that defendant had been involved in the crime.
E. The Scope of the Patdown:
The trial court also found that under the circumstances of this case, “the officer . . . had the right to see if the defendant had any contraband on his person. I think that would be reasonable once he found that there was a wad of money in there I think Officer Ray knew he had the right guy.” Defendant argues that “[e]ven if the patsearch had been justified at the outset, the foray into [defendant’s] pockets to retrieve items that were clearly not weapons exceeded the permissible scope of such a search.” This argument also lacks merit.
Citing People v. Avila (1997) 58 Cal.App.4th 1069, 1075, defendant acknowledges that the Fourth Amendment does not require an officer to ignore contraband found in a permissible Terry search. However, he also points out that a police officer may not retrieve a soft object while performing a patdown search unless its incriminating character is immediately apparent. (Minnesota v. Dickerson (1993) 508 U.S. 366, 375 [124 L.Ed.2d 334, 345-346] (Dickerson).) Thus, “[i]f a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.[]” (Id. at pp. 375-376 [124 L.Ed.2d at p. 346] [characterized as the plain-feel or plain-touch doctrine].) Defendant argues that it was unreasonable for Ray to view and Chief Morrison to later retrieve the rolled-up currency from defendant’s pocket because Ray admitted that he did not immediately know what the item was. He contends that Ray could not have reasonably believed that the wad was a weapon.
The law is contrary to defendant’s position. If an officer is unsure whether a hard object felt in the patdown is a weapon, under the “plain-touch” doctrine described in Dickerson, the officer is entitled to remove the object or simply look into the suspect’s pocket to determine the nature of the object. (People v. Limon (1993) 17 Cal.App.4th 524, 535-536.) Because even some soft objects can conceal a weapon, we see no reason for limiting this rule to items that feel hard to the touch. Moreover, in light of the fact that Ray was looking for a bank robber, under the “plain-touch doctrine” he was entitled to seize what felt to him like currency as incriminating evidence. (United States v. Bustos-Torres (8th Cir. 2005) 396 F.3d 935, 944.)
Because we conclude that the detention and patdown were lawful, we need not address the question whether defendant’s consent to seizure of the currency was vitiated by an unlawful detention.
II.
The Court Did Not Abuse Its Discretion By Refusing to Strike the Prior Convictions
Defendant contends that the court abused its discretion in declining to strike one or more of his prior convictions under Romero. The record reveals no abuse of discretion.
In deciding whether to strike a prior felony in furtherance of justice, the court must consider “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.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) The exercise of sentencing discretion under the Three Strikes Law “must be an intensely fact-bound inquiry taking all relevant factors, including the defendant’s criminal past and public safety, into due consideration . . . .” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981-982.) The inquiry does not focus solely on the defendant. “‘“[S]ociety, represented by the People, has a legitimate interest in ‘the fair prosecution of crimes properly alleged.’”’” (Williams, supra, at p. 159.) For this reason, a decision to dismiss a strike based on remoteness of time is an abuse of discretion where “the defendant has led a continuous life of crime after the prior.” (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
The burden is on the party attacking the sentencing decision to show that it was irrational or arbitrary. “‘In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.]” (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
In this case, the information alleged two prior felony convictions that qualified as “strikes” -- a 1994 conviction for bank robbery and a 1982 conviction for assault with a deadly weapon. The presentence report revealed a lengthy history of felony offenses, in addition to those alleged, which influenced the Court’s decision not to dismiss any of the priors. The court noted that defendant’s criminal record went back over 26 years and stated: “From this it’s clear to the Court that in the language of one of the Appellate Court decisions that guides the Court the defendant has not led a relatively legally blameless life during this time period.” It indicated that “[t]he fact that last felony conviction was in 1994 [did] not have a significant impact on the Court’s analysis because the defendant [had] been incarcerated for [a] substantial amount of time, the vast majority of that time between 1994 and the present.” Given this record, defendant has failed to sustain the burden of showing that the court’s ruling was irrational or arbitrary. (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
III. The Resulting Life Sentence Did Not Constitute Cruel and Unusual Punishment
Defendant also maintains that the court’s failure to exercise its discretion to dismiss the prior strike convictions resulted in a sentence of 25 years to life for bank robbery which was “grossly disproportionate as well as cruel and unusual under the Eighth Amendment to the federal Constitution.” There is no merit in this argument.
“The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [115 L.Ed.2d 836, 869] (Kennedy, J., concurring) (Harmelin).) Thus, the federal proportionality analysis comes into play “only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” (Harmelin, supra, at p. 1005 [115 L.Ed.2d at p. 871].) This is not such a case.
Defendant attempts to minimize the seriousness of his crime. The fact remains that he was convicted of bank robbery. Although defendant did not display a gun during the robbery, a note threatened that he had one. The United States Supreme Court has upheld life sentences under recidivist statutes for lesser crimes. (See, e.g., Ewing v. California (2003) 538 U.S. 11, 16-20, 30 [155 L.Ed.2d 108, 114-117, 123] [sentence of 25 years to life under the California Three Strikes Law for theft of golf clubs worth a few hundred dollars]; Harmelin, supra, 501 U.S. at pp. 961, 996 [115 L.Ed.2d 843, 865] [sentence of life without the possibility of parole for possession of 672 grams of cocaine]; and Rummel v. Estelle (1980) 445 U.S. 263, 265-266, 285 [63 L.Ed.2d 382, 385-386, 397] [mandatory life sentence under Texas recidivist statute for fraudulent use of credit card, check forgery and fraud for a total of less than $250].) Defendant’s sentence did not constitute cruel and unusual punishment.
IV. One Section 667.5, Subdivision (b) Enhancement Should Be Stayed
Citing People v. Jones (1993) 5 Cal.4th 1142, 1152-1153, the Attorney General concedes that the court erred in sentencing defendant to two separate enhancements for the same 1982 conviction – a five-year term pursuant to section 667, subdivision (a), and a one-year term pursuant to section 667.5, subdivision (b). Accordingly, we modify the sentence to stay the one-year enhancement under section 667.5, subdivision (b). (People v. Lopez (2004) 119 Cal.App.4th 355, 363-364; see also People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130.)
DISPOSITION
The judgment is modified to stay the one-year section 667.5, subdivision (b) enhancement for the 1982 prior prison term. As modified, the judgment is affirmed.
We concur: DAVIS, Acting P.J., MORRISON, J.