Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. GA076332, Jacqueline H. Nyugen, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
Defendant Michael Alvarez appeals from the judgment entered on his plea of nolo contendere to the offense of transporting and selling cocaine base. (Health & Saf. Code, § 11352, subd. (a).) Alvarez contends the trial court improperly denied his Penal Code section 1538.5 motion to suppress evidence resulting from a search of his automobile after he was detained in a parking lot by an undercover police officer. Alvarez contends that the officer did not have a reasonable suspicion of criminal activity to justify detaining him. Alvarez further contends that as a result of recent amendments to Penal Code section 4019, his presentence conduct credits must be recalculated.
We affirm the judgment because Alvarez’s detention was lawful, and we further hold that recalculation of Alvarez’s conduct credits is not warranted because the amendments to Penal Code section 4019 do not apply retroactively.
FACTUAL AND PROCEDURAL BACKGROUND
On a March afternoon in 2009, Officer Vaca was parked in an unmarked patrol car in a shopping center parking lot in Alhambra. He was stationed there as part of an undercover surveillance operation, prompted by a recent rash of automobile burglaries and thefts in the area. He noticed that a red Toyota Corolla was parked a short distance away, occupied by a woman in the driver’s seat and a male passenger smoking a cigarette with the window down. Although Officer Vaca did not suspect that they were associated with car thefts or burglaries, he continued to observe the occupants of the parked car because he was not sure “what they were up to or who they were waiting for.” After 10 or 15 minutes, a white Chevy Silverado pickup truck entered the parking lot at a normal speed and pulled into the parking stall adjacent to the Toyota, with the passenger side of the truck facing the passenger door of the Toyota.
The passenger of the Corolla jumped out of the car and approached the passenger side of the truck. He removed something from his breast pocket and quickly reached his hand into the truck. From his vantage point approximately 47 feet away from the truck, Officer Vaca could not see what was in the passenger’s hand, but he believed it was likely money because people often keep money in their breast pocket. He lost sight of the man’s hand when it was inside the truck, and could not see whether the man handed something to the occupants. When the man pulled his hand back out of the truck, he put it back in his pocket, turned around, and started walking back towards the Corolla. Before he reached the car, the truck accelerated out of the parking spot and exited the lot.
Based on his training and experience, described below, Officer Vaca believed that he had witnessed money being exchanged for narcotics. He decided to follow the truck, which pulled into the Sizzler restaurant parking lot across the street. After the truck had entered a parking stall, Officer Vaca parked his car behind the truck to prevent the occupants from leaving. As the occupants opened the doors to the truck and climbed out, Officer Vaca approached them, identified himself as an undercover police officer, and detained them.
In response to Officer Vaca’s questions, both occupants indicated that they were on parole for narcotics offenses and that they understood they were subject to search and seizure as one of the terms and conditions of their parole. After police backup arrived, Officer Vaca searched the truck and found individual plastic baggies in a baby wipe container that were later determined to contain rock cocaine and methamphetamine. He also found approximately $400 in cash on Alvarez’s possession.
At the time of the detention, Officer Vaca had worked for the Alhambra Police Department for 24 years. Early in his career he had received training in how to recognize hand-to-hand narcotics transactions, having attended several week-long training courses sponsored by the Los Angeles Police Department and the California Narcotic Officer’s Association. He had been a narcotics detective for two years, from 1988 to 1990, during which time he had investigated numerous drug offenses, including the manufacturing, transportation, sales, and possession of narcotics, such as cocaine and methamphetamines. He had performed undercover narcotics surveillance work, including purchasing rock cocaine and other drugs from suspects on 3 to 5 occasions while undercover, and acting as backup to other officers making undercover buys on 20 to 30 occasions.
Alvarez was charged with the transportation and sale of cocaine base (Health & Saf. Code, § 11352, subd. (a)), sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession for sale of cocaine base (Health & Saf. Code, § 11351.5), and possession for sale of methamphetamine (Health & Saf. Code, § 11378). He pled not guilty, and, pursuant to Penal Code section 1538.5, brought a motion to suppress the evidence that resulted from his detention. The trial court denied the motion to suppress, and Alvarez entered a plea of nolo contendere to the count of transporting or selling narcotics in violation of Health and Safety Code section 11352, subdivision (a). He was sentenced to eight years in prison, including four years for the new offense and four years based on his prior offenses.
The court determined Alvarez’s presentence credits to be 127 days of actual custody and 62 days of good conduct credit, for a total of 189 days of credit to offset his sentence. The conduct credits total was derived under Penal Code section 4019 by applying the “one-third” formula prescribed in In re Marquez (2003) 30 Cal.4th 14, 25-26. After Alvarez was sentenced, section 4019 was amended effective January 25, 2010, to increase the rate at which conduct credits are earned by most defendants. Alvarez asserts that under the new “one-half” formula, he is entitled to 126 days of good time/work credit instead of 62 days, for a total of 250 days of presentence credit.
Alvarez properly has appealed from the judgment of conviction. (Pen. Code, § 1538.5, subd. (m); People v. West (1970) 3 Cal.3d 595, 601.)
DISCUSSION
Reasonableness of Alvarez’s Detention
It is undisputed that Officer Vaca “detained” Alvarez when he parked his unmarked patrol car behind Alvarez’s truck in the parking lot, blocking it in. (See People v. Wilkins (1986) 186 Cal.App.3d 804, 809 [holding occupants of car were “seized” when officer stopped his marked patrol vehicle behind the parked car, preventing it from leaving]; People v. Bailey (1985) 176 Cal.App.3d 402, 405-406 [holding a detention occurred when officer in unmarked police car pulled in behind vehicle in parking lot and turned on red light].) Thus, the sole question on appeal is whether the detention was constitutionally reasonable such that the trial court correctly denied Alvarez’s motion to suppress evidence obtained as a direct result of that detention.
“The quantum of suspicion which will justify a limited detention is far lower than that which is required to justify an arrest.” (People v. Wright (1988) 206 Cal.App.3d 1107, 1111.) The circumstances known or apparent to the officer must include “specific and articulable facts” that “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.” (People v. Conway (1994) 25 Cal.App.4th 385, 388-389; see In re Tony C. (1978) 21 Cal.3d 888, 893, superseded by constitutional amendment on other grounds as stated in In re Christopher B. (1990) 219 Cal.App.3d 455, 460, fn. 2.) Courts must evaluate the reasonableness of a detention on a “case-by-case basis, ” considering the “totality of the circumstances.” (In re Raymond C. (2008) 45 Cal.4th 303, 307.)
In determining whether a search was reasonable, a court may consider “the modes or patterns of operation of certain kinds of lawbreakers.” (United States v. Cortez (1981) 449 U.S. 411, 418.) “Law enforcement officers may ‘draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” [Citations.]’” (People v. Hernandez (2008) 45 Cal.4th 295, 299, quoting United States v. Arvizu (2002) 534 U.S. 266, 273.)
“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 his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal – to ‘enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.’ [Citation.]” (In re Tony C., supra, 21 Cal.3d at p. 894; see United States v. Sokolow (1989) 490 U.S. 1, 9-10.) Therefore, “[e]ven if the circumstances are also consistent with innocent activity, a detention will be justified if the combination of circumstances also supports a reasonable suspicion of criminal activity.” (People v. Daugherty (1996) 50 Cal.App.4th 275, 287.) On the other hand, “an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.” (In re Tony C., supra, 21 Cal.3d at p. 893.)
In this case, the trial court determined that although Officer Vaca could not see what was exchanged between the defendant and the passenger of the Corolla, he reasonably determined that an exchange had occurred because the Corolla passenger took something out of his pocket, reached into the truck Alvarado was driving, and then put something back in his pocket. The court concluded that the fact that this visit was not social in nature – the exchange occurring immediately after the truck pulled up next to the Corolla, and the truck leaving immediately afterwards – reasonably supported the officer’s suspicion that a drug transaction had taken place.
In reviewing the trial court’s ruling on the motion to suppress, we uphold the court’s factual findings, both express or implied, so long as they are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) However, the question whether it was objectively reasonable for the officer to entertain a suspicion of criminal activity is a question of law that “implicates the constitutional standard of reasonableness – a standard... that the appellate courts have the ‘ultimate responsibility’ to administer. It follows that the substantial evidence test does not limit review of this issue, and the appellate court must make an independent determination whether the officer’s suspicion was constitutionally reasonable in the circumstances of the case.” (People v. Leyba (1981) 29 Cal.3d 591, 598.) The question before us is thus whether the facts known to Officer Vaca provide some objective manifestation that Alvarez likely was involved in criminal activity, or whether these facts merely gave rise to a hunch that proved to be correct. We conclude that Officer Vaca’s observations were sufficient to give rise to a reasonable suspicion that a drug deal had taken place.
Cunha v. Superior Court (1970) 2 Cal.3d 352 (Cunha), concerned the lawfulness of an arrest following an apparent exchange of unidentified objects and thus bears some similarities to this case. In Cunha two police officers were conducting undercover surveillance in an area in which each officer had participated in numerous narcotics arrests in recent months. (Id. at p. 355.) From their seats at a hot dog stand, one of the officers observed the defendant and another man walking towards them, engaged in conversation. The officer’s suspicion was aroused by the manner in which the two men were looking around and behind them as if to see if they were being watched. (Ibid.) The two men continued their conversation as they walked past the hot dog stand and then stopped. One of the officers observed each of the suspects reach into his pants pocket; the companion appeared to extract an object, although the officer could not see it, while the defendant took out what appeared to be money. The two then placed their hands together in what appeared to be an exchange. The officers concluded that they had witnesses a drug deal, and proceeded to arrest and search the defendant and his companion. (Ibid.)
In determining whether the fruits of the search following the arrest should have been suppressed, the Supreme Court concluded that the officers did not have probable cause to arrest the defendant, and noted that it even had “some doubts” that petitioner’s activities would have been sufficient to justify a detention. (Cunha, supra, 2 Cal.3d at p. 356.) While this language in Cunha may rightly be treated as dicta because the issue before the Supreme Court was not whether the defendant had reasonably been detained, but rather whether there was probable cause to arrest the defendant (see Santos v. Superior Court (1984) 154 Cal.App.3d 1178, 1184, fn. 1; People v. Handy (1971) 16 Cal.App.3d 858, 862), some courts have relied on Cunha in formulating the standards for determining whether a detention based on an exchange of unrecognizable objects was reasonable.
For instance, in People v. Limon (1993) 17 Cal.App.4th 524, the appellate court determined that the defendant was lawfully detained on suspicion of selling drugs. The officer had observed the defendant standing near another man at a carport of an apartment complex. The defendant walked to a nearby pickup truck, bent and removed something from the wheel well, and walked back to the other man. The men then touched hands, and the officer believed they were exchanging something, although he could not see what it was. The defendant then walked back to the truck and placed something in the wheel well, and the other man walked away. (Id. at p. 529.) While the officer came closer to investigate, he lost sight of the defendant for a minute, and when he next saw him, the defendant was talking to a woman who was sitting in a car. (Ibid.) The officer believed the defendant was engaged in drug-dealing. He knew that the area was known for weapons and drugs, and he personally had seen about 20 drug deals in that block of apartment buildings, including several in the same carport. (Id. at p. 531.)
In concluding that the officer had a reasonable suspicion of criminal activity that justified the defendant’s detention, the court focused on the fact that the defendant had not only been observed engaging in a hand-to-hand exchange, but also had hidden something after the exchange. The court also relied on the fact that the officer had specific knowledge of heavy drug activity in the area. (People v. Limon, supra, 17 Cal.App.4th at pp. 533-534.) The court held that although under Cunha “an exchange of an unrecognizable object for money on a street in a high crime area does not justify arrest [citations], it may justify detention if the area is known for drug sales.” (Id. at p. 532.)
Other courts have not relied upon Cunha when dealing with the lawfulness of a detention, but have engaged in a similar analysis. In People v. McGriff (1990) 217 Cal.App.3d 1140, a patrol car was driving at 8 p.m. through an area known for drug dealing, when the officer noticed two vehicles parked next to each other in the middle of the street, facing in opposite directions. Several people, including the defendant, were standing near both cars, and the officer observed them lean into the cars and exchange objects with the passengers. As the police car approached, the cars drove away, and the defendant and the others standing outside fled through a yard nearby. (Id. at p. 1142.) The appellate court concluded that the officer’s observation of the exchange in the middle of the street, “when combined with the factors of nighttime, high drug activity area and flight from police, ” provided an objectively reasonable basis for suspecting criminal activity. (Id. at p. 1144; see also People v. Handy, supra, 16 Cal.App.3d at pp. 859-860 [officer observed exchange of objects at 11 p.m. at “frequented narcotic hangout” where he previously had made several narcotic arrests; when the police car approached, defendant and companions looked in the direction of the car “at which time their conversation ceased and their hands went into their pockets very rapidly”].)
In People v. Butler (2003) 111 Cal.App.4th 150, an officer received a bulletin at approximately 6:30 p.m. about an anonymous tip that drugs were being sold out of a grey Ford Explorer at a particular address known to the officer to be in a high-crime area. When the officer reached the address, he saw a grey Ford Explorer with the driver’s window down. He witnessed the defendant, in the driver’s seat, hand something to a woman standing outside the car, and she handed something back to him. (Id. at p. 156.) The Court of Appeal found that the combination of the anonymous tip of drug-dealing and the officer’s observation of an exchange fully consistent with the details of the tip was sufficient to create a reasonable suspicion of criminal activity. (Id. at pp. 161-162.)
In each of these cases, the courts found indicia of criminal activity in addition to the observation of an exchange of unknown objects consistent with a drug deal, whether it be a known pattern of drug activity in the area, flight from the police, nervous glances or furtive gestures by the defendant, a recent corroborating tip, or nighttime activity. While none of these particular factors was present in the case of Alvarez, who was observed making an apparent exchange in broad daylight in a public parking lot not known for drug dealing, other observations reasonably led Officer Vaca to suspect that a narcotics transaction had occurred between the passenger of the Corolla and the occupants of the truck. First, the exchange in the parking lot appeared to be a pre-arranged, given the fact that the occupants of the Corolla were obviously waiting in the parking lot for the truck to arrive, and the exchange took place without any hesitation. Second, the lack of conversation between the occupants of the Corolla and the truck before or after the apparent exchange suggested that the parties were conducting business. (See People v. Daugherty, supra, 50 Cal.App.4th at p. 286 [absence of good-byes or gestures exchanged between suspected drug courier and occupants of the vehicle dropping her off was one factor suggesting detention of drug courier was reasonable].) Third, the small size of the items exchanged was consistent with a narcotics transaction. Finally, the haste with which the truck departed – before the passenger of the Corolla had even gotten back into his car – reasonably could lead an officer with training and experience in recognizing hand-to-hand drug dealing to believe that the occupants of the truck were trying to avoid detection.
While there could have been an innocent explanation for the apparent exchange, “the combination of circumstances also support[ed] a reasonable suspicion of criminal activity” on the part of an experienced police officer. (People v. Daugherty, supra, 50 Cal.App.4th at p. 287.) As such, Alvarez’s detention was lawful and the evidence flowing from his detention properly admitted into evidence.
Presentence Conduct Credits
Alvarez also argues that his conduct credits must be recalculated because Penal Code section 4019 was amended, effective January 25, 2010, to provide for a greater accrual rate for conduct credits for most prisoners. He contends that the amendments to section 4019 apply retroactively, and that under the new “one-half” formula they prescribe, he is entitled to 126 days of conduct credit instead of the 62 days he was awarded.
Recently, in People v. Eusebio (2010) __ Cal.App.4th __ [B216149, filed June 18, 2010], this court reviewed the split of authority on whether the amendment of section 4019 is retroactive. We concluded that that the better reasoned analysis holds that the amendment is not retroactive. We follow our holding in Eusebio here, and conclude, therefore, that Alvarez is not entitled to additional conduct credits.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.