Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC502114
Duffy, J.
Following denial of his motion to suppress evidence, Edward Lee Curry, the defendant herein, pleaded guilty to two counts of second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) Defendant also admitted to a prior robbery conviction that subjects him to increased punishment under the “Three Strikes” law. (§§ 667, subds. (b)-(i), 1170.12.) Defendant admitted that the same prior conviction constituted a serious felony within the meaning of section 667, subdivision (a). The trial court sentenced defendant to nine years in prison. Defendant’s appeal raises two issues. First, he claims that the court erred by denying his motion to suppress evidence. Second, he claims that the court abused its discretion in denying his motion to dismiss a prior conviction that brought him under the ambit of the Three Strikes Law.
Further statutory references are to the Penal Code unless otherwise indicated.
We find no merit in any of defendant’s claims and will affirm the judgment.
FACTS
Because defendant pleaded guilty, we derive the facts from the preliminary examination transcript.
Defendant was prosecuted on the theory that he robbed two operators of a San Jose liquor store.
On the night of March 24, 2005, a relatively short-statured muscular African-American man wearing a black ski mask, black gloves, and black clothing robbed the Liquor Bin of about $500 in cash at gunpoint. He demanded cash from Sy Thac Nguyen, who was working behind the counter. Nguyen handed the robber the cash drawer and the robber fled out the door and began running down the street, with the store owner, Linh Nguyen, following. The robber dropped the cash drawer, at which point Nguyen started attacking him with a garbage can lid. The robber tried to collect money from the tray and then jumped into the passenger side of a waiting automobile parked down the street from the store.
A police officer soon pulled the automobile over and the robber, a muscular, tattooed, and now shirtless African-American male, emerged from the back seat and ran away, leaving behind the black gloves, replica firearm, and ski mask he had used to commit the robbery, along with a black sweater consistent with the description of the clothing the robber was wearing at the time of the crime. Before the robber fled, the officer perceived that the robber had handed objects to the person in the front passenger seat or tucked them under that seat. The items used to commit the robbery were found either under the front passenger seat or wedged between that seat and the car door.
The record is silent on how the police eventually were able to apprehend defendant. The car’s driver was Celeste Packer, whose appeal we considered in People v. Packer (Sept. 26, 2007, H030417) [nonpub. opn.]. In Packer, we explained that the next day they located defendant after seeing him emerge from Packer’s house, which they were keeping under surveillance. They initially released defendant because they lacked probable cause to connect him with the robbery. Further investigation, however, resulted in defendant’s arrest.
Deoxyribonucleic acid (DNA) evidence found on the ski mask taken from the car from which the robber had fled matched defendant’s DNA.
DISCUSSION
I. Denying Motion to Set Aside the Information
Defendant claims that the trial court erred in denying his motion to set aside the information (§ 995). That motion was based on an argument that a magistrate had erred in denying an earlier motion by defendant to suppress evidence under section 1538.5. Defendant asserts, as he did before the trial court, that the facts known to the detaining police officer were insufficient to create an articulable suspicion that the occupants of the vehicle that the police officer stopped, including him, were involved in a crime, and therefore the stop and detention violated the Fourth Amendment to the United States Constitution. We do not agree.
Before bringing this appeal, defendant did not obtain a certificate of probable cause (§ 1237.5). But because this claim is based on an underlying claim that the trial court erred in denying defendant’s motion to suppress evidence pursuant to section 1538.5, we will entertain his appeal on the merits. (See Cal. Rules of Court, rule 8.304(b)(4); People v. Lilienthal (1978) 22 Cal.3d 891, 896 [section 995 motion may be used to challenge the validity of a search and seizure]; § 1538.5, subd. (m).)
Technically defendant is not in compliance with the applicable rule. Rule 8.304(b)(4) of the California Rules of Court requires that the notice of appeal state that the appeal is based on, as relevant here, the denial of a section 1538.5 motion to suppress evidence. On the notice of appeal form, counsel checked the wrong box. Instead of checking the section 1538.5 box, counsel checked the box stating that the appeal is based on the sentence or other matters occurring after the plea. (See Cal. Rules of Court, rule 8.304(b)(4)(B).) Given the obviousness of the ground for appeal—the denial of a crucial section 1538.5 motion—and inasmuch as the People do not contest the validity of the appeal, we will treat this as a clerical error in the notice of appeal and consider defendant’s claim on its merits. The error is not jurisdictional (People v. Morgan (1989) 207 Cal.App.3d 1384, 1386, fn. 1) and we may elect to overlook it (accord, ibid.).
The officer testified that he stopped the car because it was similar to the type of vehicle involved in the robbery and there was movement in the back seat that the officer found suspiciously furtive; he thought a person might be trying to hide in that location. The occupants he could see were African-American and the robbery suspect also was African-American.
Defendant argues that the stop was constitutionally invalid because about a half-hour had passed since the robbery, the car in which he was riding was not traveling away from the robbery scene and was only a half-mile to a mile away from the scene (a distance too short to be consistent with flight), the vehicle that the officer had been alerted to look for was a different model of silver Mitsubishi than the Mitsubishi sedan he pulled over, the officer could see an African-American female in the front seat and there was no information available to the officer that an individual matching her description was involved in the robbery, and the officer could not attribute the movement he saw in the back seat to a human being, let alone an African-American who appeared similar to the robber.
Defendant concedes that there were similarities between the information about the robber and the getaway car and the car and one of its occupants (the driver) that the officer detained, but argues that these similarities were too general to justify the detention under the Fourth Amendment.
The People argue that because defendant never unequivocally submitted to the officer’s authority, case law provides that no Fourth Amendment seizure occurred. Both parties agree, however, that at one point defendant raised his hands in response to the officer’s command. Moreover, the officer testified not only that defendant obeyed that command, but also obeyed a command not to move.
Under these circumstances, the People fail to present so strong an argument that no seizure occurred that we may confidently resolve defendant’s claim solely on that ground. We need not further consider the People’s argument that no seizure occurred, moreover, because other legal considerations require the rejection of defendant’s claim even if a seizure did occur.
“In ruling on a motion to suppress [§ 1538.5], the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court’s resolution of the factual inquiry under the deferential substantial-evidence standard. [Citation.] The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]” (People v. Hoyos (2007) 41 Cal.4th 872, 891.) We will apply this standard to review of defendant’s section 995 motion, given that it is based on an argument that the magistrate should have granted defendant’s earlier section 1538.5 motion.
“[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. [Citation.] While ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. [Citation.] The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity.” (Illinois v. Wardlow (2000) 528 U.S. 119, 123-124.) We bear in mind that “ ‘standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application’; ‘each case is to be decided on its own facts and circumstances.’ ” (Ornelas v. United States (1996) 517 U.S. 690, 696.)
“As with all warrantless intrusions, the burden lies with the state to justify a detention.” (People v. Bower (1979) 24 Cal.3d 638, 644.)
After citing two appellate decisions, People v. Overten (1994) 28 Cal.App.4th 1497, and People v. McCluskey (1981) 125 Cal.App.3d 220, both cases involving similarities between the descriptions of individuals involved in just-reported crimes and the individuals detained, along with other indicia that the automobile occupant or occupants were involved in the crime (Overten, supra, at p. 1505; McCluskey, supra, at pp. 226-227), the trial court stated in a written decision that “a very general description of the suspect (gender, race, and clothing) coupled with temporal and spatial proximity to the crime justified the detention,” and that the detention of defendant was “further supported by the fact that the described getaway vehicle also matched the suspects’ vehicle.” That is correct to the extent that the vehicle was a silver Mitsubishi.
We agree with the trial court’s analysis of the circumstances confronting the detaining officer here. “[T]he possibility that the circumstances are consistent with lawful activity does not render a detention invalid, where the circumstances also raise a reasonable suspicion of criminal activity. The public rightfully expects a police officer to inquire into such circumstances; indeed the principal function of the investigative stop is to resolve that ambiguity.” (People v. Dolliver (1986) 181 Cal.App.3d 49, 56.) Moreover, the Fourth Amendment tolerates a certain degree of discrepancy between the circumstances of the crime conveyed to the detaining officer and the actual circumstances of the crime the officer is investigating. (People v. Smith (1970) 4 Cal.App.3d 41, 48.) “Crime victims often have limited opportunity for observation; their reports may be hurried, perhaps garbled by fright or shock. More garbling may occur as the information is relayed to the police broadcaster and from the broadcaster to the field. 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.” (Id. at pp. 48-49, italics deleted.) Here as in Smith, “[t]he officer[] had a broadcast description of a felony involving men and a vehicle corresponding generally to the persons and vehicle stopped. This knowledge provided reasonable cause for temporarily detaining the vehicle and questioning its occupants.” (Id. at p. 48.)
Contrary to anything that may be inferred from defendant’s contentions on appeal, the record contains no suggestion that the officer was engaging in so-called racial profiling or performing a stop and detention solely on the basis of his information that the robber was African-American and the vehicle occupants were African-American. (See People v. McCluskey, supra, 125 Cal.App.3d at pp. 226-227.) That would be improper. (See People v. Bower, supra, 24 Cal.3d at p. 644; In re Tony C. (1978) 21 Cal.3d 888, 898.)
The Fourth Amendment did not forbid the police officer from carrying out his duties. He was confronted with enough similarities between the information conveyed to him and the circumstances he was observing to lawfully be able to stop the vehicle and resolve any ambiguity. Had he not done so, he would not have been doing his job. Accordingly, we reject defendant’s claim.
II. Denying Defendant’s Motion to Dismiss the Three Strikes Law Allegation
Defendant claims that the trial court abused its discretion in denying his motion to dismiss his strike prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
A “court in exercising its discretion under the Three Strikes law ‘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.’ ” (In re Large (2007) 41 Cal.4th 538, 552.)
A trial court’s discretion, however, is limited in the context of a motion to dismiss one or more strike priors. “ ‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.” ’ ” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
In denying defendant’s Romero motion, the trial court called it “distressing” that defendant had committed a robbery before, received the mitigated two-year term for the prior robbery (see § 213, subd. (a)(2)), and, by reason of committing yet another robbery, evidently had learned nothing from the prior experience of being caught and punished. “[Y]ou have the prior robbery, and then you resort to this. [¶] . . . [Y]ou put everyone involved in this at risk of getting killed. [¶] I mean the police officer could have responded with guns out, they could have shot and killed someone. One of the victims started to resist, other people could have been involved. [¶] That is what bothers me.”
The trial court continued, “it’s my responsibility to do two things. [¶] First of all, protect the public and protect the victims like these store owners, protect the police officers who have to respond and put their life in jeopardy when they respond to a scene and see somebody who apparently has a firearm and they might start firing, someone might be killed, including a peace officer, bystanders might get hurt, you might get hurt, you might get killed. So protect the public. [¶] And number two, I try to fashion an appropriate fair sentence that complies with what the legislature has told me I should do that’s going to give you the opportunity to never commit an offense again. [¶] Now whatever happened the last time you committed the robbery before in [19]95 and you went to prison for two years, that didn’t do it, did it? That didn’t stop you from this offense. [¶] If that [prior conviction and sentence] had stopped you from this offense, then we would have been successful, but we weren’t successful. It’s our fault, we [misdiagnosed] it. We didn’t provide safety to the public in that last case. [¶] This time we have to, and that’s why the penalty is going to be greater.”
The trial court proceeded to explain that “by law I have to consider three things. I have to consider the nature of the prior strikes, I have to consider the nature and circumstances of the current charge, and I have to consider your prospects for the future. [¶] Of those three things, your prospects for the future while in custody are excellent. And so I think you’ve demonstrated you do well while in custody and you benefited greatly, so I think that’s a positive. [¶] However, this is one of the rare cases actually that I see where the strike conviction and the current offense are exactly the same. It’s one of the rare cases I see where the current offense is also a violent or serious felony.”
The trial court then formally stated its reasons for denying defendant’s Romero motion: “Appearing before the Court is a once married now separated father of eight children who stands convicted of two counts of second degree robbery offenses, which involve the defendant entering a liquor store wearing a ski mask and gloves, brandishing an imitation firearm, and demanding money from one of the two brothers who own the store. [¶] One brother gave him the cash tray, one of the others went outside and attempted to stop him upon his exit. [¶] The defendant readily admits his guilt, claiming he committed the crime to secure funds with which to purchase drugs. [¶] That in a nutshell is what the current case is about. [¶] The prior case was also a robbery. [¶] So I think on the other two points, the nature of the prior offense, the nature of the current offense, those are against you. [¶] And when I evaluate the three factors, the overwhelming conclusion I come to under the criteria that I have to use in determining whether or not to remove the strike are unfavorable, so the Romero motion is denied. [¶] That does make the issue of sentencing fairly straight forward. The absolute minimum sentence now available to the Court is nine years. [¶] And it’s only available because I can[,] based on the stipulation of counsel[,] impose a concurrent sentence with regard to the second victim. But for that it would be more.”
Defendant contends that the trial court abused its discretion by taking into account that it had rarely seen a Three Strikes Law candidate be charged with the same offense as the crime that made him eligible for increased punishment under that law. We see nothing improper in the court’s observation, and we cannot say that the court abused its discretion in finding that no exception to the Three Strikes scheme should be made in defendant’s case. The court’s reasons speak for themselves, are reasonable, and are entitled to deference. We deny defendant’s claim.
DISPOSITION
The judgment is affirmed.
WE CONCUR, Bamattre-Manoukian, Acting P. J., Mihara, J.