Opinion
A129585
12-07-2011
THE PEOPLE, Plaintiff and Respondent, v. MARK D'ASCENZO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. 210213)
Defendant Mark D'Ascenzo appeals from a judgment imposing new probation terms and conditions following revocation and reinstatement of his probation for possessing brass knuckles. D'Ascenzo contends the trial court should have granted his motion to suppress evidence of the brass knuckles. He also contends the court should have awarded him increased conduct credits under Penal Code section 4019, which would have shortened a one-year confinement in county jail imposed as part of the additional probation terms and conditions. We affirm.
BACKGROUND
We recite only the facts relevant to the issues raised on appeal. In September 2009, D'Ascenzo pleaded guilty to possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), and second degree burglary in violation of Penal Code section 459. In December 2009, the court suspended imposition of D'Ascenzo's sentence, placing him on probation for three years. The court conditioned probation, in part, on D'Ascenzo serving one year in county jail, completing residential drug treatment and domestic violence counseling programs, not possessing dangerous weapons, and being subject to warrantless searches to assure compliance.
On April 7, 2010, San Francisco Police Officer Anthony Pedroza saw D'Ascenzo riding a bicycle on Mission Street near 6th Street. Officer Pedroza had been investigating a bicycle burglary and assault on a security guard that had occurred at 1390 Market Street on March 27, 2010, about 11 days earlier. A surveillance camera captured the March 27, 2010 incident, and Pedroza reviewed the camera footage several times on that date. To Pedroza, D'Ascenzo resembled the burglar on the surveillance tape. He thought D'Ascenzo and the burglar, both White, were of the same age range (late twenties to thirties), shared the same medium build, had the same hairstyle (shaved sides), and carried the same messenger-style bicycle bag. Pedroza "right away thought [D'Ascenzo] was possibly the person" from the tape and detained him.
Though the tape provided no visual cues for gauging the burglar's height, Pedroza assumed after watching the tape the burglar was about 5 feet 9 or 10 inches tall. The assaulted security guard may have provided that information, but Pedroza did not recall. D'Ascenzo is 6 feet 11 inches tall. According to Pedroza, height was not a factor in his decision to detain D'Ascenzo.
Officer Pedroza searched D'Ascenzo on the scene, located brass knuckles in his pants pocket, placed him under arrest, and brought him to the police station. After D'Ascenzo had been searched twice more, and while he waited in a holding cell used for multiple detainees, another officer, Michael Hutton, observed a spark plug two to three inches away from D'Ascenzo's hand on a cell bench. Spark plugs can be used on the street to shatter car windows. Officer Hutton turned the spark plug over to Pedroza, who wrote in his report that Hutton saw D'Ascenzo throw the spark plug on the floor. According to Hutton, however, he never saw D'Ascenzo throw the spark plug on the floor.
On April 9, 2010, the district attorney moved to revoke D'Ascenzo's probation based on his possession of the brass knuckles and spark plug. D'Ascenzo filed a motion to suppress all evidence obtained as a result of his April 7, 2010, detention by Officer Pedroza because the detention, he claimed, violated the Fourth Amendment right to be free from unreasonable search and seizure. D'Ascenzo cited the height discrepancy between the burglar's assumed height and his. D'Ascenzo also claimed he was wearing a baseball hat that hid his hairstyle from view when Pedroza detained him. (Pedroza disputed that D'Ascenzo wore a hat.) D'Ascenzo further claimed the search based on what was left in common—both men were White and carried bike messenger bags—was improper. Finally, he contended Pedroza's "lack of credibility or untruthfulness itself" tainted the search and warranted exclusion of the search's fruits.
On July 7, 2010, following a two-day bench trial on probation revocation, the trial court orally denied D'Ascenzo's motion to suppress. It assumed for argument's sake that D'Ascenzo did have a hat on and "was stopped on a bicycle close to the scene of a crime where a bicycle had been stolen ten days before and he matched the description [of the suspect] to the extent that he was a white male, wearing a messenger bag, same age range." The court then asked: "Does that shock the conscience or does that offend the fundamental notions of fair justice?" It answered: "I have to conclude that it doesn't. There is nothing [here] that one could say this is shocking, this is absolutely outrageous conduct. So the motion is denied for that reason." The court then revoked D'Ascenzo's probation, but only on the basis of his possession of brass knuckles—the court found the spark plug evidence too speculative. On July 9, 2010, the court sentenced D'Ascenzo to three years in prison, but suspended the sentence, extended probation until February 28, 2013, and, among other terms and conditions of this extended probation, ordered a one-year term in county jail. The court granted 94 days' credit toward this term for time served, but the court denied additional presentence conduct credits under section 4019 because D'Ascenzo had a prior robbery conviction. The prosecution did not plead the robbery conviction, but D'Ascenzo admitted it at trial. D'Ascenzo appeals the denial of his motion to suppress and the refusal of the credits under section 4019.
DISCUSSION
Motion to Suppress
In reviewing the denial of a motion to suppress, we accept the trial court's express or implied factual findings when they are supported by substantial evidence, but determine independently, on such accepted findings, whether the search or seizure was reasonable under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924.) Article I, section 28 of the California Constitution prohibits "suppression of evidence unless federal constitutional standards require us to do so." (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716; People v. Racklin (2011) 195 Cal.App.4th 872, 877 (Racklin).)
We therefore "look to federal constitutional standards as interpreted by the United States Supreme Court. [Citation.] Decisions of federal district or appellate courts are not binding on us in the absence of a United States Supreme Court decision that is on point. [Citation.] In determining federal law in the absence of a definitive United States Supreme Court decision, we are bound by California Supreme Court cases construing federal constitutional provisions. [Citation.] If there is no conflict between state and federal law, state law governs." (Racklin, supra, 195 Cal.App.4th at p. 877.)
Probation revocation proceedings differ from criminal trials, and in revocation proceedings the Fourth Amendment typically does not compel exclusion of evidence even if it was the fruit of an unlawful search. (People v. Coleman (1975) 13 Cal.3d 867, 877, fn. 8 [revocation of parole or probation " 'is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply,' " including the Fourth Amendment exclusionary rule]; Racklin, supra, 195 Cal.App.4th at pp. 878-879, citing People v. Hayko (1970) 7 Cal.App.3d 604, 610 ["[E]vidence obtained as a result of an illegal search and seizure can be used by the court for the limited purpose of determining whether a convicted defendant's probation should be revoked."]; People v. Washington (1987) 192 Cal.App.3d 1120, 1127 (Washington) [" 'exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings' "].) In some circumstances, however, "police conduct might be so egregious that the exclusionary rule should apply even to revocation proceedings." (Racklin, at p. 879; People v. Harrison (1988) 199 Cal.App.3d 803, 808.) Courts have characterized egregious conduct warranting exclusion as conduct that would "shock the conscience," (Racklin, at p. 879, citing Hayko, supra, 7 Cal.App.3d at p. 610), or conduct that "offends" to the court's " 'sense of justice,' " (Washington, supra, 192 Cal.App.3d at p. 1128). In Harrison, officers' conduct did not affront the court's sense of justice when they detained the defendant after he fled from a group "which appeared to be dealing drugs." (Harrison, supra, 199 Cal.App.3d at pp. 814-815.) In Washington, by contrast, the only reason the testifying officer could give for pursuing a fleeing defendant was his feeling that "Black men he saw in the area usually had something to hide if they ran from police." (Washington, supra, 192 Cal.App.3d at pp. 1123, 1128.) The court found this conduct egregious and offensive to its sense justice. (Id. at p. 1128.)
Officer Pedroza's conduct in detaining D'Ascenzo does not "shock the conscience" or offend our sense of justice. Pedroza acted on his belief that D'Ascenzo was the burglar on the surveillance tape he had seen about 11 days before. Like the burglar, D'Ascenzo was White, in his late twenties or thirties, and carrying a bike messenger bag. D'Ascenzo was in the vicinity of the bicycle burglary and on a bike. Even if D'Ascenzo had been wearing a baseball hat during the detention, that would not have prevented Pedroza from viewing the shaved sides of D'Ascenzo's head—the feature Pedroza singled out as similar in his testimony. The height discrepancy between D'Ascenzo and the burglary suspect does not, in this case, alter the fact that Pedroza, as the officers in Harrison, acted upon objective, reasonable criteria. This case by no means presents the kind of egregious misconduct in Washington, where the officer acted upon a single, insidious criterion, the suspect's race.
D'Ascenzo's contention that Officer Pedroza's "lack of credibility or untruthfulness," alone, constitutes egregious conduct requiring exclusion is meritless. First, Pedroza's alleged misconduct—relating, as best we can discern, to only his preparation of a police report and his testimony during the revocation hearing regarding the discovery of the spark plug near D'Ascenzo—has nothing to do with how he searched or detained D'Ascenzo. (See Harrison, supra, 199 Cal.App.3d at p. 808 ["illegally obtained evidence may be considered in determining whether to revoke probation, as long as the illegality was not egregious"], italics added.) Second, in ruling on the motion to suppress, the trial court made no express findings concerning Officer Pedroza's alleged "untruthfulness." If the trial court's ruling needed to rest on a finding that Pedroza did not engage in the alleged misconduct, we accept the court's implied finding of no misconduct, which, in this case, necessarily rests on the court's consideration of the officer's credibility, a consideration we will not disturb on appeal. (See People v. Weaver, supra, 26 Cal.4th at p. 924 [this court will imply findings in favor of the judgment]; People v. Lewis (1982) 133 Cal.App.3d 317, 323 ["Where, as here, the trial court's conclusions on a Fourth Amendment issue turn on issues of fact and credibility of witnesses, this court may not reweigh the evidence or draw inferences other than those reasonably drawn by the trial court, or substitute its own deductions for those of the trial court, if two or more inferences can reasonably be drawn from the facts."].)
Our determination that Officer Pedroza's search does not "shock the conscious" is not a determination that the search was lawful. We need not and do not express an opinion on that matter.
Conduct Credits
Section 4019, effective as of January 25, 2010, permitted a defendant to earn additional custody or "conduct" credits prior to being sentenced by performing assigned labor (§ 4019, subd. (b)) or by good behavior during confinement (§ 4019, subd. (c)). (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3; People v. Brewer, supra, 192 Cal.App.4th at p. 461, fn. 5 [describing the January 25, 2010, version of section 4019].) D'Ascenzo admitted to a prior robbery conviction at trial and there is no dispute robbery is both a "violent" and "serious" felony that would bar additional conduct credits under section 4019. D'Ascenzo contends he may nonetheless obtain such credits because the prosecution failed to plead and prove the prior conviction.
The version of section 4019 that took effect on January 25, 2010 resulted from a 2009 amendment. (See Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) The Legislature again altered the conduct credit scheme effective September 28, 2010, modifying both section 4019 and related section 2933. (Stats. 2010, ch. 426 § 1 (S.B. 76).) The parties do not contend the outcome in this appeal hinges on whether we apply the January version (effective at sentencing) or the September version (effective now). Rather, as D'Ascenzo notes in his appellant's brief, both "versions of the credits law for state prisoners excluded from the increased credits those who were . . . previously convicted of serious or violent felonies." Further, we note D'Ascenzo only asserts error with respect to the trial court's denial of "increased" or "additional" conduct credits, not baseline credits that may have been available under the January or September schemes. (See People v. Brewer (2011) 192 Cal.App.4th 457, 463 [distinguishing the types of credits available].)
The Courts of Appeal have taken opposing views on whether prosecutors must plead and prove prior convictions before the trial court can deny additional conduct credits, and the Supreme Court has granted review of the issue. This court previously concluded there is no pleading and proof requirement (People v. Voravongsa, supra, 197 Cal.App.4th at p. 674, review granted August 31, 2011, S195672), and we reach the same conclusion here. In brief, we discern no legislative intent to include a pleading and proof requirement in any of the 2010 amendments to section 4019 and related sections. The statutory language mentions no requirement. (See In re Varnell (2003) 30 Cal.4th 1132, 1139, 1141 [" 'when a pleading and proof requirement is intended, the Legislature knows how to specify the requirement' "].) Nor are the amended sections part of a statutory scheme that otherwise impose such a requirement. (See People v. Hernandez (1988) 46 Cal.3d 194, 200-201 [discussing such a scheme].) Further, given that section 4019 allows courts to wholly foreclose (not merely reduce) conduct credits when a confined defendant refuses to satisfactorily perform assigned labor (subd. (b)) or fails to comply with reasonable rules and regulations (§ 4019, subd. (c))—facts that cannot plausibly be pleaded at the outset of a criminal prosecution—it makes no sense to imply a pleading and proof requirement especially for facts foreclosing merely additional conduct credits under the 2010 amendments—for instance, a prior serious or violent conviction. Similarly, it has long been recognized that a sentencing judge can deny probation on the basis of an uncharged, prior serious felony conviction. (See People v. Wiley (1995) 9 Cal.4th 580, 586.) Again, it seems wholly incongruous that having permissibly sentenced a defendant to prison on the basis of an uncharged prior serious felony conviction, the sentencing judge would then be unable to account for that conviction in calculating custody credits unless it had, in fact, been pled and proven. Prior serious or violent felony convictions are among the "traditional facts of a crime or of a defendant's criminal history usually taken into account by sentencing judges." (People v. Hernandez, supra, 46 Cal.3d at p. 206.) Nor do constitutional due process concerns necessitate pleading and proof requirements for the conduct credit statutes, when they themselves create no such requirement. To comport with due process, only a "fact that increases the penalty for a crime beyond the statutory maximum prescribed for that crime" must be proven. (Varnell, supra, 30 Cal.4th at pp. 1141-1142.) Conduct credits do not increase the statutory maximum penalty for any offense, they can only decrease the defendant's period of incarceration.
Cases rejecting pleading and proof requirement: People v. Fuentes (Nov. 16, 2010, H035286) (nonpub. opn.); People v. Smith (Jan. 14, 2011, E050923) (nonpub. opn.); People v. Ortiz (June 10, 2011, A129049) (nonpub. opn.); People v. Millsap (July 7, 2011, A130626) (nonpub. opn.); People v. James (2011) 196 Cal.App.4th 1102, review granted August 31, 2011, S195512; People v. Voravongsa (2011) 197 Cal.App.4th 657, review granted August 31, 2011, S195672.
Cases requiring pleading and proof: People v. Jones (2010) 188 Cal.App.4th 165, review granted December 15, 2010, S187135; People v. Tolbert (Nov. 22, 2010, B221747) (nonpub. opn.); People v. Koontz (2011) 193 Cal.App.4th 151, review granted May 18, 2011, S192116; People v. Lara (2011) 193 Cal.App.4th 1393, review granted May 18, 2011, S192784.
Accordingly, the prosecution did not need to plead or prove D'Ascenzo's prior robbery conviction and the trial court properly denied additional conduct credits.
CONCLUSION
The judgment is affirmed.
Banke, J. We concur: Margulies, Acting P. J. Dondero, J.