Opinion
H049794
09-13-2023
THE PEOPLE, Plaintiff and Respondent, v. RALPH SALVADOR APODACA, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 21CR002934
GROVER, J.
A jury convicted defendant Ralph Salvador Apodaca, Jr. of illegally possessing heroin, ammunition, and a concealed dagger. Defendant contends that the trial court was incorrect to deny his motion to suppress evidence, the prosecutor committed misconduct during his trial, and he was erroneously sentenced to an upper term in violation of Senate Bill No. 567 (2021-2022 Reg. Sess.). He alternatively contends that trial counsel's failure to object to the prosecutor's misconduct and to the imposition of an unlawful sentence constituted ineffective assistance.
We agree that the trial court improperly denied defendant's motion to suppress evidence and will reverse the judgment on that basis, rendering moot defendant's challenge to his sentence. With respect to defendant's other contentions, we find no grounds for reversal. By previous order we have considered with this appeal defendant's habeas corpus petition alleging ineffective assistance of counsel, and we deny that petition by separate order filed this day.
I. BACKGROUND
The charges against defendant resulted from two encounters with police in April and June of 2021. Our brief summaries of those encounters are based on the arresting officers' testimony at trial.
A. The April Incident
Two Salinas police officers were patrolling the city's Chinatown neighborhood on the night of April 16. Chinatown is known for "murders, robberies, drug dealing," and "people that use narcotics" and is populated by "transients" who "set up tents throughout the sidewalks" in the neighborhood. Officer Reyes, who was familiar with defendant, saw defendant walking along the "curb line" of a sidewalk. As the officers drove past defendant, Officer Reyes lost sight of defendant and believed he was "kneeling down or squatting down near the passenger's side of a vehicle that was also parked on the curb." Officer Adams, who was driving, stopped the car because Officer Reyes told him defendant was hiding behind a tent on the side of the street. As the two officers approached defendant Officer Adams noticed two "concerning bulges in his front waistband area," one of which looked like "the outline of a hilt or a handle of a weapon." Officer Adams patted down defendant and found a knife. He arrested defendant and "conducted a full search," finding heroin, bullets, a pipe, and $1,328 in cash. Defendant was charged with possessing heroin with intent to sell (Health &Saf. Code, § 11351, count 1), possessing ammunition as a convicted felon (Pen. Code, § 30305, subd. (a)(1), count 2), and carrying a concealed dirk or dagger (Pen. Code, § 21310, count 3). Count 1 included a special allegation that defendant possessed at least 14.25 grams of heroin. (Health &Saf. Code, § 11352.5, subd. (1).)
B. The June Incident
Officer Reyes was patrolling Chinatown with another officer on June 5. He spotted defendant, who he knew "had a felony warrant for his arrest." He arrested and searched defendant, finding heroin, a bullet, a scale, $596 in cash, and another substance he believed to be methamphetamine. Defendant was charged with possessing heroin with intent to sell (Health &Saf. Code, § 11351, count 4), possessing methamphetamine with intent to sell (Health &Saf. Code, § 11378, count 5), and possessing ammunition as a convicted felon (Pen. Code, § 30305, subd. (a)(1), count 6). Count 4 included a special allegation that defendant possessed at least 14.25 grams of heroin. (Health &Saf. Code, § 11352.5, subd. (1).) Count 5 would later be dismissed during trial.
C. The Motion to Suppress Evidence
Defendant moved to suppress the evidence found on April 16. He argued that his stop by police on that date was not consensual, was not supported by reasonable suspicion, and was unreasonable in scope. The prosecution opposed the motion, arguing that the officers had the reasonable suspicion necessary to detain defendant-"whom they knew to be a Norteno gang member and knew to possess illegal concealed firearms"- when they saw him attempting to avoid contact with police in a high-crime area.
The trial court conducted a hearing on the motion after concluding jury selection. At the hearing, Officer Reyes testified that he knew defendant to be "an active Norteno gang member" who "deals narcotics in the Chinatown area" and "was caught with possession of a firearm" in 2019. Around 10:30 p.m. on April 16, defendant was walking along a street in Chinatown when the officers drove past him and "he ducked behind a vehicle." Officer Reyes asked Officer Adams to stop the car because, in his experience policing Chinatown, people who "try to conceal or hide themselves" are people he would "need to talk to." He shined a flashlight on defendant, who was in a crouching position when he first approached, and asked defendant "to come over towards" him and defendant complied.
Officer Adams testified that he got out of the car "maybe 10 seconds behind Officer Reyes" and saw defendant getting up from a crouched position. He estimated that defendant had been crouching for roughly 10 to 30 seconds. As he approached, Officer Adams "immediately noticed" that defendant was wearing three layers of baggy clothing with "two large bulges in his front waistband area." He believed defendant to be a gang member and drug dealer, and was "very concerned" that defendant might be armed. Based on his suspicion that one of the bulges in defendant's waistband was a weapon, he proceeded to pat down defendant.
The trial court credited the testimony of both officers and denied defendant's motion to suppress evidence. It found that the officers' initial detention of defendant was objectively reasonable "based upon the totality of the circumstances," which included defendant "crouching behind a car as soon as he saw the officers drive by"; "Chinatown being a high crime area and, in fact, the highest crime area in the City of Salinas"; "the time of night being 10:30"; and "the area being known for specifically drug dealing and violent crimes."
D. The Trial
In his opening statement, the prosecutor described Chinatown as a "tent city" populated by homeless people struggling with issues such as drug addiction. He stated that "Chinatown has become a place where people who want drugs go" and that, "where there are people who want drugs, there will be people who sell drugs." When the prosecutor continued, "And because you can make a lot of money selling drugs[,]" defense counsel objected to his statement as "beyond the opening" and the trial court sustained the objection. The prosecutor then described that an expert witness would testify about the connection between drug sales and violence that "is the life of Chinatown."
The prosecutor elicited testimony from Officer Adams about the prevalence of crime, drugs, and homelessness in Chinatown. The prosecutor elicited testimony from Officer Reyes about drugs and violence in Chinatown by asking him why he focused on that area, why he considered it a high-crime area, and whether he found people in Chinatown to be less cooperative. Officer Reyes also testified that, after finding defendant in possession of ammunition on April 16, the officers searched the area for a gun but did not find one. The prosecutor then attempted to ask Officer Reyes about the possibility that defendant might have discarded a gun in a nearby tent, but defense counsel objected four times to that line of questioning and the trial court sustained each objection.
In his closing argument, the prosecutor reminded the jury that the officers had searched the area for a gun and stated that defendant was not charged with possessing a gun because the officers did not find one. The prosecutor also described the residents of Chinatown as "a homeless population," including "people who are addicted to drugs," who are "living oftentimes miserable" or "mentally ill lives" and understandably believe that drugs "improve their lives" as a result. He argued that it "makes sense" for defendant, as someone "walking around with that kind of money and those kinds of drugs," to carry a weapon in that environment.
In his rebuttal to defense counsel's closing argument, the prosecutor described defendant as "a guy who lives in a tent in Chinatown" and asked, "why does someone have $2,000 worth of heroin, $1,300 worth of cash in Chinatown in an area where people sell drugs regularly?" While deliberating, the jury sent a note to the court reading in part, "We would like to confirm the defendant's residence and occupation?" The court responded, "There was no evidence introduced regarding a residence or occupation of the defendant."
E. The Verdict and Sentence
The jury found defendant guilty on counts 1, 2, 3, 4, and 6 (count 5 having been dismissed). It also found true the special allegations, attached to counts 1 and 4, that defendant possessed at least 14.25 grams of heroin. The trial court sentenced defendant to six years four months in prison, consisting of the upper term of four years on count 1; a consecutive term of eight months (one-third the middle term) on count 2; a concurrent middle term of two years on count 3; a consecutive term of one year (one-third the middle term) on count 4; and a consecutive term of eight months (one-third the middle term) on count 6. In imposing the upper term on count 1, the court noted that defendant's "convictions as an adult are numerous" and "there was a large amount of narcotics involved" in the crime.
II. DISCUSSION
A. Motion to Suppress Evidence
Defendant challenges the trial court's denial of his motion to suppress evidence from the April incident on two grounds, contending that both the initial detention and the pat search were unlawful. In reviewing the trial court's ruling, we defer to its "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.)
The trial court expressly found that, around 10:30 p.m. in the "highest crime area in the city of Salinas," an area known specifically for "drug dealing and violent crimes", defendant crouched "behind a car" when he saw police drive by. Those factual findings are supported by substantial evidence offered in the arresting officers' testimony. (Officer Reyes described seeing defendant "duck[] behind a vehicle" when he and Officer Adams drove past. When asked whether Chinatown was "known to be an area with a large amount of drugs and gang activity and violence" and whether he would "consider it the highest crime area" of Salinas, Officer Adams answered affirmatively.)
In their appellate briefing, the parties do not vigorously dispute the point at which the initial detention occurred. Although the prosecutor argued at the suppression hearing that defendant was not detained until the officers "said 'Put your hands behind your back' and grabbed ahold of him" (which according to the testimony happened after Officer Adams saw what appeared to be a weapon in defendant's waistband), the trial court did not rely on Officer Adams' observation of a weapon in making its finding of reasonable suspicion. In this court, the Attorney General urges us to consider Officer Adams' observation as a factor supporting the lawfulness of the pat search but does not suggest that it is relevant to our analysis of the initial detention. That detention began when Officer Reyes got out of the car, approached defendant, shined a flashlight on him and stated something to the effect of, "come over towards me." A reasonable person in defendant's position would have felt compelled to obey the officer's directive. (See People v. Roth (1990) 219 Cal.App.3d 211, 215.)
Given the commencement of the detention, the dispositive question is whether, at the time Officer Reyes issued that directive, a reasonable officer in his position would have suspected criminal activity based on "specific and articulable facts" beyond a mere hunch. (Terry v. Ohio (1968) 392 U.S. 1, 21-22.) In concluding that Officer Reyes acted reasonably, the trial court relied primarily on two cases: People v. Souza (1994) 9 Cal.4th 224 (Souza) and People v. Flores (2021) 60 Cal.App.5th 978, rev. granted Apr. 21, 2021, S267522 (Flores). One of those cases is currently under review by the California Supreme Court, and we find both distinguishable from this case.
In Flores, the case currently before the Supreme Court, the defendant ducked behind a parked car when police spotted him alone in a high-crime area at 10:00 p.m. (Flores, supra, 60 Cal.App.5th at p. 986.) While those limited facts closely resemble this case, the trial court in Flores suggested that a detention may not have been justified based on those facts alone. (Id. at pp. 987-988.) It also considered that even after officers approached Flores and shined a flashlight on him, he remained in an unusual crouched position for a prolonged period of time and toyed with his feet while keeping his hands out of view. (Id. at p. 989.) The Flores trial and appellate courts found that those additional facts were suspicious enough to warrant a detention. (Ibid.) But no similar additional facts are present here: defendant was detained (and complied) as soon as Officer Reyes approached him, after being in a crouched position for what Officer Adams estimated was 10 to 30 seconds.
In Souza, an officer was patrolling a high-crime area at 3:00 a.m., in "almost complete darkness," when he noticed two people standing near a parked car. (Souza, supra, 9 Cal.4th at p. 240.) "One of the two ([Souza]) leaned toward the car as if talking to someone inside." (Ibid.) When the officer "directed his patrol car's spotlight into the car's interior, two people in the front seat immediately bent down toward the floorboard, and defendant took off running." (Ibid.) The Supreme Court found that "the area's reputation for criminal activity, the presence of two people near a parked car very late at night and in total darkness, and evasive conduct not only by [Souza] but by the two occupants of the parked car" constituted sufficiently suspicious circumstances when viewed in their totality. (Ibid.) The Attorney General cites that decision to support the general proposition that time of night is a factor relevant to the reasonable suspicion calculus. But whereas 3:00 a.m." 'is both a late and an unusual hour for anyone to be in attendance at an outdoor social gathering'" (id. at p. 241, quoting People v. Holloway (1985) 176 Cal.App.3d 150, 155), 10:30 p.m. is not an unusual time for someone to be walking down the street.
Nor is momentary crouching equivalent to circumstances such as actively running at the sight of police, for which innocent explanations are less readily apparent. For that reason, a third case relied on by the Attorney General (Illinois v. Wardlow (2000) 528 U.S. 119 (Wardlow)) is also distinguishable. Wardlow involved "a four car caravan converging on an area known for heavy narcotics trafficking in order to investigate drug transactions. The officers were traveling together because they expected to find a crowd of people in the area, including lookouts and customers." (Id. at p. 121.) As they passed a building, Wardlow-who was "standing next to the building holding an opaque bag"- "looked in the direction of the officers and fled." (Id. at pp. 121-122.) The Supreme Court held that Wardlow's "[h]eadlong flight"-which it called "the consummate act of evasion"-could be considered as "a pertinent factor in determining reasonable suspicion" and further investigation was justified under the circumstances. (Id. at pp. 124-125.) We acknowledge the relevance of evasive conduct to the question of reasonable suspicion, but it is not dispositive of that question even when it rises to the level of "headlong flight." And here, defendant's conduct fell well short of that level.
Nonetheless, the Attorney General argues that "the officers here had even more cause for suspicion than did the officers in Wardlow." The Attorney General's argument is premised on the presence of two additional factors: (1) the time of night, and (2) the officers' knowledge of defendant's criminal history. As we have already discussed, we give little weight to the first factor under the circumstances before us. But the second factor, which the Attorney General also notes was not present in Flores, is significant and makes this a close case. Officer Reyes testified that, sometime before the incident at issue, "confidential informants and other officers" had informed him that defendant was "an active Norteno gang member" who "deals narcotics in the Chinatown area" and "was caught with possession of a firearm" in 2019. Officer Adams testified that, before the incident, he had "never personally arrested" defendant but was "aware" that defendant "was arrested with [a] concealed firearm in the Chinatown area in 2019"; "had prior arrests for narcotics [] sales"; and "was an active documented Norteno gang member in the City of Salinas." Both officers testified that they were mindful of defendant's criminal history while interacting with him. The trial court expressly credited the testimony of both officers but made no specific factual findings regarding the officers' familiarity with defendant.
Even crediting the officers' testimony as the trial court did, and viewing it in the light most favorable to the trial court's ruling (see Flores, supra, 60 Cal.App.5th at p. 988), we observe that the brief testimony concerning defendant's criminal history aids the ruling only minimally. Officer Reyes' knowledge of defendant's gang membership, drug dealing, and prior arrest came from "talking to confidential informants and other officers as well." But the record does not reveal details which would establish the reasonable reliability of any information provided by other officers regarding defendant's ongoing criminal activity. (Cf. People v. Bush (2001) 88 Cal.App.4th 1048, 1053 [officer reasonably relied on information provided by police dispatcher that was not "unreasonably stale"]; Remers v. Superior Court (1970) 2 Cal.3d 659, 666-667 ["when an officer furnishes to another officer information which leads to an arrest, the People must show the basis for the former officer's information" in order to prevent "the manufacture of reasonable grounds for arrest" via transmittal of information from one officer to another].) And to the extent Officer Reyes relied on information provided by confidential informants, his testimony provided no details by which the trial court could assess the reliability of that information. (See People v. Madden (1970) 2 Cal.3d 1017, 1023-1024.) Information "which cannot be traced back to its source amounts to nothing more than an anonymous tip" and "can support a detention only where that information is 'sufficiently corroborated to furnish the requisite reasonable suspicion.'" (In re Eskiel S. (1993) 15 Cal.App.4th 1638, 1644.)
The officers provided more detail in their testimony about defendant's prior arrests. Officer Reyes stated he knew that defendant "was caught with possession of a firearm" in 2019. Officer Adams described that he regularly reviewed arrest reports as a member of the Violence Suppression Task Force and he was also aware of defendant's 2019 arrest for possession of a concealed firearm, as well as other arrests for drug sales at unspecified times. The drug arrests are of limited probative value because the record does not suggest they were known to Officer Reyes at the time he detained defendant. The 2019 gun arrest was known to Officer Reyes, but we are mindful that "[e]ven people with prior convictions retain Fourth Amendment rights" such as the right to avoid police contact; "they are not roving targets for warrantless searches." (United States v. Santos (10th Cir. 2005) 403 F.3d 1120, 1132 (Santos).) That principle applies especially where the criminal history relied on is an arrest rather than a conviction. (People v. Pantoja (2022) 77 Cal.App.5th 483, 492 (Pantoja).) In Pantoja, an officer's knowledge "of defendant having been arrested for possession of weapons on one occasion" years earlier was "insufficient to support reasonable suspicion." (Id. at pp. 490-491.)
Citing Santos, supra, 403 F.3d at p. 1132, a federal case in which the defendant lied to police about his record, the Attorney General asserts that defendant's criminal history "powerfully" supports reasonable suspicion in this case. The limited testimony about that history suggests otherwise, and its significance is diminished by Officer Reyes' explanation that the reason he approached defendant was because he believed defendant was attempting to hide from him. After Officer Reyes detained defendant and Officer Adams observed two large bulges in his waistband, defendant's history would surely contribute to a reasonable suspicion that he was armed and dangerous. But we need not reach the lawfulness of the pat search. Although the officers' attention and desire to make contact with defendant are easily understood, on this record the events as they unfolded did not justify the initial detention, and the trial court was incorrect to deny the motion to suppress evidence from the April 16 encounter.
B. Prosecutorial Misconduct at Trial
Defendant contends that the prosecutor committed prejudicial misconduct by improperly arguing and eliciting testimony that defendant may have possessed a gun, by appealing to the jury's biases regarding Chinatown and its residents, and by arguing without evidentiary support that defendant "lives in a tent in Chinatown." He asserts that the repeated acts of misconduct rose to the level of a due process violation, and prejudiced him both individually and cumulatively. Acknowledging that trial counsel did not object to every instance of alleged misconduct, defendant alternatively argues that counsel's failure to do so constituted ineffective assistance insofar as it resulted in forfeiture of his appellate contentions. Although the issue of prosecutorial misconduct is not fully preserved for appeal, we will address it in full given defendant's alternative contention. (See People v. Azcona (2020) 58 Cal.App.5th 504, 515.)
As the Attorney General concedes, the prosecutor improperly stated in his rebuttal argument that defendant "lives in a tent in Chinatown." No evidence supported that assertion, which implied to the jury that defendant was financially destitute and would be unlikely to be carrying a large amount of cash for a legitimate reason. It is "well settled" that basing argument on facts not in evidence constitutes misconduct. (People v. Mendoza (2016) 62 Cal.4th 856, 906.) Here, though, the possibility of prejudice was mitigated by the trial court's clarification to the jury that "there was no evidence introduced regarding a residence or occupation of the defendant." And the evidence of defendant's guilt on counts 4 and 6 (the counts unaffected by the motion to suppress evidence) was strong. In the June 5 incident, defendant was found in possession of a large amount of heroin, a bullet, a scale, and $596 in cash. That evidence overwhelmingly established that defendant possessed heroin and ammunition, and we are satisfied that the prosecutor's misstatement of the evidence did not contribute to the jury's inference that defendant possessed the heroin with the intent to sell it.
We have reviewed each remaining act of alleged misconduct in the context of the entire record. Even assuming all the acts constituted misconduct, we find no prejudice to defendant. The individual and cumulative impacts of the prosecutor's statements were limited by the trial court sustaining numerous objections to the prosecutor's questioning about defendant's possible gun possession, as well as an objection to a portion of the prosecutor's opening statement describing Chinatown. (See People v. Fuiava (2012) 53 Cal.4th 622, 687.) And, again, the evidence of defendant's guilt was strong. We see no reasonable probability that the misconduct affected the outcome, nor was the misconduct so pervasive that it deprived defendant of a fair trial. (See id. at p. 692 [no reversal required where misconduct, individually or cumulatively, did not deprive the defendant of a fair trial].)
Although the prosecutor's statement that defendant "lives in a tent in Chinatown" constitutes misconduct, it has not resulted in reversal here and we are therefore not required to report it to the State Bar. (Bus. &Prof. Code, § 6086.7, subd. (a)(2) [requiring such notification whenever a modification or reversal of a judgment is based on attorney misconduct].) But we will direct the clerk of this court to provide this opinion to the Monterey County District Attorney. (See People v. Roberts (2021) 65 Cal.App.5th 469, 482.)
C. Sentencing
Defendant challenges imposition of the upper term of four years on count 1, relying on Senate Bill No. 567 (2021-2022 Reg. Sess.) and its amendments to Penal Code section 1170. Because those amendments were in effect at the time defendant was sentenced but were not raised by defense counsel, defendant again alternatively alleges ineffective assistance of counsel. We need not consider either contention in light of our reversal of defendant's conviction on count 1.
III. DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with directions to vacate defendant's convictions on count 1 (Health &Saf. Code, § 11351), count 2 (Pen. Code, § 30305, subd. (a)(1)) and count 3 (Pen. Code, § 21310); to vacate the true finding on the special allegation attached to count 1 (Health &Saf. Code, § 11352.5, subd. (1)); to vacate the order denying defendant's motion to suppress evidence and to enter a new order granting the motion; and for further proceedings consistent with this opinion, including resentencing. The clerk of this court is directed to send a copy of our opinion to the Monterey County District Attorney.
WE CONCUR: Greenwood, P. J., Lie, J.