Opinion
C066914
01-30-2018
THE PEOPLE, Plaintiff and Respondent, v. RUBEN FLORES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 09F8910)
In an ethnically diverse nation where the consideration of race in the enforcement of laws is tightly circumscribed by legal doctrine and policy directives, and where no one dare acknowledge even a trace of bias, transparency is a challenge, and difficulties abound in determining whether law enforcement actions on a particular occasion were impermissibly influenced by a suspect's race. We consider here the rules that have evolved for the review of claims that law enforcement judgment was clouded by racial factors so that an ensuing criminal investigation and prosecution should be set aside. Because the prosecution is based largely on the outcome of a search of the minority defendant's vehicle, we consider rules applicable to evaluating a claim of pretext in connection with a traffic stop and the resulting vehicle search as well as rules governing a defendant's request for discovery of information that might assist in establishing pretext.
A Shasta County Sheriff's Office detective observed defendant Ruben Flores driving along Interstate 5 (I-5). Defendant appeared nervous and, after he began weaving, the detective pulled him over. Defendant consented to a search, which unearthed seven pounds of cocaine and three pounds of methamphetamine.
An amended complaint deemed an information charged defendant with transportation of a controlled substance, possession of a controlled substance for sale, and possessing a false compartment for controlled substances. (Health & Saf. Code, §§ 11352, subd. (a), 11351, 11366.8, subd. (a), 11378, 11379, subd. (a).) Defendant filed a motion for discovery of evidence of selective prosecution based on race; the court denied the motion. The court also denied defendant's motion to suppress.
Defendant thereafter pled no contest to one count of transportation of a controlled substance. Defendant appeals, arguing the court abused its discretion in denying his discovery motion and in denying his motion to suppress. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Vehicle Stop
Defendant's Acura was traveling down I-5 at about 55 to 60 miles per hour, in an area with a posted 65-mile-per-hour speed limit. The car was observed by Detective Christopher McQuillan, a member of the North State Initiative of the California Multi-Jurisdiction Methamphetamine Enforcement Team who sat in his vehicle alongside I-5, observing traffic.
To Detective McQuillan, defendant appeared nervous, gripping the steering wheel tightly and avoiding the detective's eyes.
Detective McQuillan followed defendant's car, clocking the car at 60 miles per hour. Other cars passed defendant's car. As the detective continued to follow defendant's car, it began to weave within its lane, though it did not cross the lane delineators. In Detective McQuillan's opinion, such wandering can indicate a driver who is under the influence of alcohol or falling asleep. The detective also continued to observe vehicles passing defendant's car on both sides. The detective effected a vehicle stop.
Defendant appeared nervous and his hands were trembling. Detective McQuillan could not determine whether defendant was under the influence. The detective noticed three cell phones on the center console and the heavy scent of air freshener. Two other officers arrived at the scene, one with a narcotics-trained K-9 dog. Detective McQuillan decided to issue defendant a warning citation. While Detective McQuillan issued the warning, defendant consented to a search of his car. The K-9 dog and handler walked around defendant's vehicle. The dog "alerted" twice, in effect indicating the presence of narcotics, whereupon the officers began to search defendant's car. The search uncovered approximately seven pounds of cocaine and three pounds of methamphetamine in a hidden compartment inside the car.
An amended complaint deemed an information charged defendant with two counts of transportation of a controlled substance (Health & Saf. Code, §§ 11352, subd. (a), 11379, subd. (a)), two counts of possession of a controlled substance for sale. (Health & Saf. Code, §§ 11351, 11378), and one count of possessing a false compartment for controlled substances (Health & Saf. Code, § 11366.8, subd. (a)). It was further alleged that the controlled substance exceeded a kilo in weight. (Health & Saf. Code, § 11370.4, subds. (a) & (b)(1).) Discovery Motion—Selective Prosecution
Defendant filed a motion for discovery of evidence of selective prosecution. (Murgia v. Municipal Court (2002) 15 Cal.3d 286 (Murgia).) The officers involved in defendant's arrest were funded by a grant to a five county task force called the North State Initiative of the California Multi-Jurisdictional Methamphetamine Enforcement Team (Cal-MMET). Defendant's motion sought discovery of numerous documents concerning the Cal-MMET program. He asserted "members of the Shasta County Sheriff[']s Office are initiating traffic stops of a suspect class of people (Hispanics) without probable cause and in an impermissibly discriminatory manner singling them out for the arbitrary enforcement of traffic laws and are following an enforcement policy deliberately based on upon race . . . ."
Defendant's motion included Cal-MMET/Domestic Highway Enforcement (DHE) reports from the county public defender's office. According to defendant, the investigations described in the reports all began as traffic stops for similar vehicle code violations. After the stops, other officers would arrive. Defendant's analysis of the investigations from 2008 through February 2010 showed approximately 70 percent of the drivers stopped were Hispanic. In the 2008 census, Hispanics constituted 36.6 percent of the California population, 8 percent of Shasta County's population, 9.8 percent of Washington State's population, and 11 percent of Oregon's population.
Denying the motion, the court characterized defendant's argument thusly: "[T]hat because the defendants arrested in these cases were all Hispanic, therefore some evidence exists to support the requested discovery." Rejecting the argument, the court observed that "[n]o statistics are provided to show that non-Hispanic persons are not being pursued. In fact, the People have provided statistics to the contrary. . . . People's exhibit 'E' shows that Hispanic drivers make up 44.27% of the total number of drivers stopped by the Cal-MMET officers. This is not at great variance with the percentage of Hispanics in the general California population (36.6%). In addition, much like the study referred to in [United Sates v. ]Armstrong [(1996) 517 U.S. 456] the People have provided as exhibit 'G' to their opposition, The Central Valley California High Intensity Drug Trafficking Area Drug Market Analysis 2009, prepared by the United States Department of Justice, National Drug Intelligence Center. This study reveals the vast majority of drug trafficking on the area in question here is controlled by drug trafficking organizations with ties to Mexico."
The court accorded little significance to defendant's observation that Cal-MMET officer reports showed identical reasons for the stops and similarities in the officer's conduct. The court determined: "These observations connote nothing. It is not unusual for law enforcement officers to use techniques that prove successful in repeated, similar investigations. In addition, because it is safe to assume that some traffic violations occur more frequently than other violations, there is nothing unusual about the officers giving similar reasons for the various traffic stops."
In response to defendant's evidence that 73 percent of the reports involved Hispanic drivers, the court found "[b]ecause a contact without an arrest is not likely to result in a police report being written, one would expect that reports documenting arrests would mirror the characteristics of the targeted offenses." In addition, the court noted: "it appears the I-5 drug trade is predominantly controlled by Mexican drug trafficking operations," therefore it would not be unexpected that most of the contacts that result in arrests and reports would involve Hispanics.
Defendant pointed to statistics of the racial makeup of all arrests by local law enforcement; that the Hispanic population of Shasta County was approximately 8 percent, and local arrests of Hispanic offenders ranged between 4.9 and 7.4 percent of the total arrests made within the county; that citations to Hispanic drivers by the California Highway Patrol on all state highways within the county ranged between approximately 7 percent and 10 percent of all citations issued for the years 2008 and 2009. In contrast, statistics from Cal-MMET's warning citation process revealed Hispanic drivers make up 44.27 percent of all drivers stopped. The trial court noted, however, that when considered in relationship to Census Bureau statistics showing that the population of the State of California is 36.65 percent Hispanic, the inference of disparate treatment suggested by a comparison to local population statistics, "all but disappears." The court found credible the People's assertion "that the racial makeup of travelers on Interstate 5 are more likely to be consistent with the overall population of the state than they are with the population of Shasta County, whose racial makeup is quite different than the rest of the state."
In summary, the court concluded: "Putting together all the deficient evidence offered in support of this motion does not result in the evidence rising to the level of some evidence that similarly situated non-Hispanic drivers are treated differently than Hispanic drivers. The evidence of the questioned treatment of the designated class does not demonstrate the absence of such treatment towards those outside the class. This remains the fundamental flaw in all the evidence proffered in support of the motion. [¶] Based upon 2009 and 2010 studies referred to in the People's opposition, one would expect that even if vehicles were being stopped precisely according to the racial ratio of the appropriate census pool, a disproportionate number of Hispanics still would be found to be transporting drugs and arrested. Similar to the circumstances addressed in Armstrong, supra, and the study discussed in that case, this result is expected because of the disproportionate share of interstate drug trafficking attributed to the designated class. Even if true that the majority of arrests for transportation of controlled substances made on I-5 arise from traffic stops of Hispanic drivers, such does not lead to a conclusion that they are being unfairly targeted." The court denied the motion.
Motion to Suppress
Defendant also filed a motion to suppress evidence pursuant to Penal Code section 1538.5. Denying the motion, after hearing Detective McQuillan's testimony that he stopped defendant's vehicle because of his weaving and driving slow in the middle lane while traffic passed him on both sides, leading McQuillan to suspect that defendant was either falling asleep or driving under the influence, the trial court observed that, "Probably the most significant issue is not only did he have a reasonable suspicion, I think he had probable cause to stop the vehicle for violating Vehicle Code section 21654." After reciting Vehicle Code section 21654, the court found: "I think that clearly establishes not only a reasonable suspicion, but probable cause to stop the vehicle."
At the suppression hearing defendant asked the court to take judicial notice of his Murgia motion (Murgia, supra, 15 Cal.3d 286) and preliminary hearing transcript. Defendant argued the motion was pertinent to the issue of illegal profiling.
The trial court rejected this argument, reasoning "this is a motion to suppress under the Fourth Amendment, and subjective intentions of the officers are completely irrelevant unless there's an inventory search, which I didn't see from the facts." Although the court declined to take judicial notice of the preliminary hearing transcript, the court encouraged defense counsel to reference the transcript if needed to rebut inconsistent testimony.
DISCUSSION
Discovery Motion
In its landmark decision in Yick Wo v. Hopkins (1886) 118 U.S. 356 the Supreme Court declared that the Constitution's promise of equal protection under the laws compels the law not only to "be fair on its face and impartial in appearance," but to be "applied and administered by public authority with an [honorable] eye and an [equal] hand." (Id. at pp. 373-374.) Later, in Two Guys from Harrison-Allentown, Inc. v. McGinley (1961) 366 U.S. 582 and Oyler v. Boles (1962) 368 U.S. 448, 456 [7 L.Ed.2d 446, 453], the court condemned selective prosecution, holding that deliberate invidious discrimination in the prosecution of a criminal charge is a ground for dismissal of the charge. In Murgia, supra, 15 Cal.3d 286, the California Supreme Court held that, upon a sufficient showing, a defendant is entitled to obtain discovery in support of such a claim. Defendant invokes Murgia in his claim that the trial court improperly denied his discovery request.
The showing required to invoke the discovery rights that Murgia provides is set forth in United States v. Armstrong (1996) 517 U.S. 456 (Armstrong). It is a very rigorous standard that mirrors the equally rigorous standard for a selective prosecution claim. (Id. at p. 458.) As defendant acknowledges, the court in Armstrong explained that: "If discovery is ordered, the Government must assemble from its own files documents which might corroborate or refute the defendant's claim. Discovery thus imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. It will divert prosecutors' resources and may disclose the Government's prosecutorial strategy."
The standard is simple and straight forward: defendants must produce some evidence of differential treatment of similarly situated members of other races or protected classes. But it is not enough to simply show that members of minority groups were prosecuted at a greater rate than others. It might seem that a radically skewed record of traffic stops of minority motorists would demonstrate or at least permit an inference of discriminatory effect and motivation. Not so. Disproportionality is not enough unless accompanied by evidence of discriminatory motivation. Defendant must "identify individuals who were not [minority] and could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted." (Armstrong, supra, 517 U.S at p. 470.) This requirement imposes a significant, and from the viewpoint of some commentators almost impossible, hurdle, to overcome. (See, e.g., Poulin, Prosecutorial Discretion and Selective Prosecution: Enforcing Protection After United States v. Armstrong (1997) 34 Am.Crim. L.Rev. 1071, 1098 ["By requiring the defendant to produce specific evidence of an unprosecuted control group before granting discovery, the Court subjects the defendant to a 'Catch 22': the defendant needs discovery to obtain the information necessary to entitle the defendant to discovery"]; id. at p. 1073).
We appreciate the difficulty; one could argue that plausible inferences of discrimination are possible without such a showing. But the rules in this area are dictated by the United States Supreme Court and we are compelled to adhere to them. No point would be served in debating the merits of alternative standards.
Before assessing defendant's evidentiary showing in support of his Murgia motion, we should pause to explain how the present case differs from the factual scenario presented in Murgia. In Murgia, the defendants sought the dismissal of six charges they allege were instituted as part of a deliberate, systematic pattern of discriminatory enforcement. (Murgia, supra, 15 Cal.3d. at p. 291.) Here, defendant alleges his vehicle stop was part of a systematic pattern of discriminatory enforcement of traffic laws, but he does not seek dismissal of Vehicle Code violations. Rather, he seeks to suppress evidence discovered as a result of a search arising from the vehicle stop. He asserts the stop was pretextual, which invokes another set of rules that favor officer discretion (see Whren v. United States (1996) 517 U.S. 806 ).
This is not at all like the selective prosecution claim at issue in Murgia. Defendant does not appear to claim that he is being selectively prosecuted for importation of methamphetamine and cocaine. Rather, his complaint is with his detention based on suspicion of a traffic violation and the subsequent search of his vehicle. He invokes Murgia as a basis for discovery in aid of his equal protection claim of racial profiling in the selection of drivers to stop.
Of the cases in which Murgia is cited as the basis for a discovery request, almost all involve a claim of selective prosecution, rather than a claim of selective detention.
To point out the differences between Murgia and the present case is not to suggest that the constitutional claim is any less important. If true, a claim that Hispanic motorists are the target of law enforcement stops based merely on their ethnic background would affect far more people, most of them completely innocent, than the selective prosecution of a Hispanic drug transporter. Nor is the burden imposed on law enforcement any less when an ongoing prosecution is halted while information is collected and analyzed on policing patterns and procedures employed to interdict illicit drugs being transported in vehicles on freeways.
One may question whether a probe into investigative practices of the type challenged here are better undertaken in actions for mandate or declaratory relief that address systemic practices and allow acquisition of data and expertise, rather than a case involving an individual detention, but that is a question for another day. (See Whitney, The Statistical Evidence of Racial Profiling in Traffic Stops and Searches: Rethinking the Use of Statistics to Prove Discriminatory Intent (2008) 49 B.C. L.Rev. 263; Gross & Barnes, Road Work: Racial Profiling and Drug Interdiction on the Highway (2002) 101 Mich. L.Rev. 651, 655-654; Childers, Discrimination During Traffic Stops: How an Economic Account Justifying Racial Profiling Falls Short (2012) 87 N.Y.U. L.Rev. 1025, 1027.) --------
Like the trial court, we apply Murgia and Armstrong to the claims made by defendant in the present case involving selective detention. We review the trial court's rulings on discovery matters for an abuse of discretion. We reverse only if the trial court's ruling exceeds the bounds of reason considering the circumstances before it. (Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363, 369; People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177, 1185-1187.)
Defendant presents a plethora of arguments challenging the trial court's denial of his discovery motion brought pursuant to Murgia. At the outset, defendant contends the statistical evidence presented provided "some evidence" that similarly situated non-Hispanic drivers were not subject to prosecution. As in the trial court, defendant argues "it would be unreasonable to assume [there were] much higher concentrations of Hispanic drivers on I-5 relative to the overall population of I-5 motorists in the Redding area." Therefore a showing that Hispanics as a group are being stopped by officers on I-5 at a rate statistically higher than 10 percent would constitute "some evidence" of racial profiling of Hispanics traveling along I-5.
As the trial court pointed out, the prosecution presented evidence in the form of studies done in 2009 and 2010 showing that the drug trade along I-5 was controlled by Mexican drug trafficking operations. Given the ethnic makeup of those involved in the methamphetamine drug trade and the fact that reports are more likely to be generated when there is an arrest, a higher percentage of arrests would be Hispanic. "Some evidence" is not used as in common parlance to mean "more than none" but is a term of art as explained by the United States Supreme Court in Armstrong. The trial court's analysis comports with the holding in Armstrong.
In Armstrong, the court considered a discovery motion alleging discriminatory prosecution based on race. In support, the defendants submitted an affidavit stating in all 24 cocaine-related cases closed by the federal public defender in 1991, the defendant was African-American. (Armstrong, supra, 517 U.S. at p. 459.) The court found the evidence did not constitute "some evidence" tending to show the existence of the elements of a selective prosecution claim. (Id. at p. 470.)
The Armstrong court found the lower court's decision to order discovery "started 'with the presumption that people of all races commit all types of crimes -- not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group.' [Citation.] It cited no authority for this proposition, which seems contradicted by the most recent statistics of the United States Sentencing Commission. Those statistics show: More than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black, [citation]; 93.4% of convicted LSD dealers were white, [citation]; and 91% of those convicted for pornography or prostitution were white, [citation]. Presumptions at war with presumably reliable statistics have no proper place in the analysis of this issue." (Armstrong, supra, 517 U.S. at pp. 469-470.)
Here, as in Armstrong, given the evidence presented by the prosecution, a higher percentage of Hispanics would be stopped and found in possession of drugs "because of the disproportionate share of interstate drug trafficking attributed to the designated class." While the disproportionality is striking in the abstract, it is not when considered in light of the ethnic composition of persons carrying drugs from Mexico along the I-5 traffic corridor.
Defendant also renews his claim that statistical evidence refutes the trial court's finding of the percentage of Hispanics driving on I-5 north of Redding. The prosecution presented evidence in the form of warnings and citations revealing approximately 44 percent of the motorists stopped on I-5 by Cal-MMET were Hispanic. The trial court found the racial makeup of individuals driving on I-5 was more likely to be consistent with the overall population of the state, rather than the population of Shasta County. Therefore, the court determined the more relevant statistic was the percentage of Hispanics in California as a whole: 36.6 percent.
Defendant argues the trial court erred in utilizing the 36.6 percent statistic, since Hispanics make up only 8 to 10 percent of drivers in the Redding area. According to defendant, "The fact that the [Hispanic] population of California, a border state with Mexico, is 36.6% is not relevant to a finding of the population of Hispanic drivers on I-5 north of Redding, a major city at the northern-most part of the state. . . . [T]he number of Hispanics in California is not evenly distributed in the state, but is rather more heavily concentrated closer to the Mexican border." In addition, defendant contends there was no credible evidence to support the trial court's finding of the racial makeup of state drivers or to support the court's reliance on state-wide statistics.
We disagree. Defendant is challenging the percentage of Hispanic drivers stopped on a well-traveled interstate highway. To establish the percentage of Hispanic travelers on this highway, defendant relies on the percentage of Hispanic residents in the surrounding county. The court's reasoning, utilizing the percentage of Hispanics in the entire state the highway runs through, seems far more logical and supportable.
Defendant also disagrees with the trial court's finding that defense investigator Conrad Cota's report was not representative of the totality of traffic stops made by Cal- MMET agents. During his surveillance, Investigator Cota observed Cal-MMET officers stop one white driver out of 21 stops. The rest of the stops involved minority drivers.
The court determined: "The report details a limited number of traffic stops made on just a few days. In addition, there are a number of traffic stops that Investigator Cota observed but about which the investigator could provide no information. He gives no exact number of those stops. Moreover, the report does not detail the number of non-Hispanics not stopped as compared to the number of Hispanics not stopped. The report does not indicate how the investigator knew the persons stopped were Hispanic, or whether the officers could tell the occupants were Hispanic before the stops were made. [Fn. omitted.]
"In addition, the report is not consistent with the warning citation statistics provided by the People . . . ."
Defendant labels this finding an abuse of discretion and a failure to give Investigator Cota's observations proper weight. We disagree. The court considered the breadth and scope of the surveillance and found it wanting. The investigator's report did not demonstrate "some evidence" of a reasonable and credible nature of a discriminatory design on the part of Cal-MMET officers. (Armstrong, supra, 517 U.S. at p. 469.)
Given the evidence supplied by defendant and the responsive evidence supplied by the People, we cannot find the trial court abused its discretion in denying defendant's motion for discovery. In making this determination, we draw all reasonable inferences in favor of the trial court's ruling. (People v. Superior Court (Baez), supra, 79 Cal.App.4th at pp. 1195-1196.) While defendant quarrels with the trial court's analysis of the proffered statistical evidence and Inspector Cota's report, defendant has not presented evidence that non-Hispanic individuals similarly situated to defendant, driving a slow moving vehicle and weaving on I-5, were observed by authorities, but not stopped. Again, disproportionality is not enough.
Motion to Suppress
Defendant argues the trial court erred in denying his motion to suppress. According to defendant, his traffic stop was a product of racial profiling, the court erred in denying his request to take judicial notice of his motion for discovery and the preliminary hearing transcript, and Detective McQuillan was not employed to conduct traffic enforcement and thus was not in the lawful performance of his duties when he pulled defendant over.
In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's factual findings where supported by substantial evidence. We then determine, using our independent judgment, whether the search or seizure was reasonable under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924.) "The guiding principle in determining the propriety of an investigatory detention is 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' [Citations.] In making our determination, we examine 'the totality of the circumstances' in each case. [Citations.]" (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
Defendant argues Detective McQuillan's stop of his vehicle was a pretext stop, based on racial profiling. He argues, as he does in support of his discovery motion, that his detention was racially motivated. We have already determined the evidence on that point insufficient to support his discovery request. It is also insufficient when considered in support of his suppression motion.
As for defendant's argument that the trial court erred in declining to take judicial notice of his Murgia motion, under Evidence Code section 452, subdivision (h), courts may take judicial notice of facts not reasonably subject to dispute. Here, the facts underlying the Murgia motion were very much in dispute. The court also declined to take judicial notice of the preliminary hearing transcript but permitted defense counsel to use the transcript for impeachment purposes. We find no error.
Defendant also contends that because Detective McQuillan was not assigned to conduct traffic enforcement, his action in stopping defendant was based on racial profiling. At the hearing, McQuillan testified he was a peace officer and assigned as an agent to Cal-MMET. A peace officer may stop a driver on " 'reasonable suspicion that the driver has violated the Vehicle Code or some other law.' " (People v. Durazo (2004) 124 Cal.App.4th 728, 734-735.) The officer's duties, as assigned by his department, do not limit his authority.
Given the totality of the circumstances, the trial court did not err in denying defendant's motion to suppress.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: HULL, J. BUTZ, J.