Opinion
B271433
07-27-2017
THE PEOPLE, Plaintiff and Respondent, v. GILBERT ORTEGA, Defendant and Appellant.
Daniel Milchiker and Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Colleen M. Tiedmann and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA430090) APPEAL from a judgment of the Superior Court of Los Angeles County, Norman J. Shapiro, Judge. Affirmed. Daniel Milchiker and Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Colleen M. Tiedmann and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted Gilbert Ortega of second degree robbery in violation of section 211 of the Penal Code, and the trial court found Ortega had suffered various prior convictions, including a prior strike conviction (§ 667, subds. (b)-(j)) and a prior serious felony conviction (§ 667, subd. (a)). The court sentenced Ortega to an aggregate term of 11 years in state prison comprised of the mid-term of three years for the robbery, doubled to six years for the strike, plus five years for a prior serious felony.
All further undesignated section references are to the Penal Code unless otherwise noted.
Earlier this year, we issued an opinion rejecting Ortega's claims. The Supreme Court thereafter granted Ortega's petition for review, and transferred the case back to our court with directions to reexamine Ortega's motion to suppress claim with a specific focus on certain factual elements presented by his motion to suppress. We have done so, and again affirm the judgment.
We find no merit to Ortega's claims that the trial court denied him his right to testify and erred in denying his Marsden and Faretta motions, and his motion to suppress (§ 1538.5).
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Faretta v. California (1975) 422 U.S. 806 (Faretta).
FACTS
In our recitation of the facts both here and in the discussion of the motion to suppress, there are certain conflicting statements in the record about when the events in the case took place. We have set forth these discrepancies in the opinion, and discerned from the record as a whole which dates are accurate.
On September 1, 2014, at about 11:00 p.m., Juan Abarca and his girlfriend, Brigitte Martinez, decided to get something to eat at a taco truck near Whittier Boulevard and Spence Street. The first factual discrepancy in the record is found here. In response to questioning from the prosecutor, Abarca testified that the robbery occurred on September 21, 2014. Other materials in the record clearly establish that it actually occurred on September 1, 2014, not September 21.
Abarca parked his car, and he and Martinez walked away from it and purchased food to eat. When they walked back to Abarca's car, Abarca and Martinez found Ortega inside the vehicle. For an instant, Abarca and Martinez thought they had approached the wrong vehicle, and continued on. They quickly realized it was Abarca's car and returned to it, where Abarca asked Ortega what he was doing. Ortega responded by getting out of Abarca's car and saying, "You know what I got for you? It's a gun." At the same time, Ortega pointed to his waist. When Abarca stepped backward, Ortega ran away. Abarca then discovered a number of personal items missing from his car, including an iPhone and a credit card.
On September 2, 2014, at about 3:00 to 4:00 a.m., roughly four or five hours after Abarca had been robbed, Los Angeles Police Department Officers Miguel Herrera and Jose Bonilla searched Ortega after they found him in a parked van near Broadway and 81st Street. Another factual discrepancy is found here. In response to the prosecutor's questioning, Officer Herrera testified that the search occurred on September 2, 2015. Adding to the confusion, Ortega's Opening Brief indicates at one point that the search occurred on September 2, 2016. Other materials in the record clearly establish that the search actually took place on September 2, 2014, not 2015 or 2016.
During this search, the officers found Abarca's iPhone and a credit card with Abarca's name on it. We set out the facts surrounding this search in more detail below in addressing Ortega's claim that the trial court erred in denying his motion to suppress.
The officers contacted Abarca early on the morning of September 2, 2014, a few hours after recovering his property. Later in September 2014, Abarca and Martinez were shown a six-pack line-up of photographs, and both picked Ortega's as the robber. At trial, Abarca identified Ortega as the person who had been in Abarca's car. Martinez testified that Ortega looked "similar" to the person she had seen in Abarca's car, but that his hairstyle was different.
In November 2014, the People filed an information charging Ortega with the second degree robbery of Abarca. (§ 211.) Further, the information alleged that Ortega suffered a robbery conviction in 2004 that qualified as a strike and as a prior serious felony. (§§ 667, subds. (b)-(j)); 667, subd. (a).) The information alleged two prior convictions with a prison term. (§ 667.5, subd. (b).)
The charges were tried to a jury in June 2015, at which time the prosecution presented evidence establishing the facts summarized above. Ortega did not present any evidence; his trial counsel urged the jurors to view the eyewitness testimony of Abarca and Martinez as not sufficiently credible to sustain a guilty verdict. The jury returned a verdict finding Ortega guilty as charged. The trial court thereafter found, based on Ortega's admissions, that he suffered the prior convictions alleged in the information. In February 2016, court sentenced Ortega as noted at the outset of this opinion.
Ortega timely appealed.
DISCUSSION
I. The Right to Testify Claim
Ortega contends his robbery conviction must be reversed because the trial court violated his constitutional right to testify in his own defense. We disagree.
The Governing Law
"The right to testify on one's own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that 'are essential to due process of law in a fair adversary process.' [Citation.] The necessary ingredients of the Fourteenth Amendment's guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony." (Rock v. Arkansas (1987) 483 U.S. 44, 51.) The right to testify belongs wholly to the defendant, and, thus, he or she may exercise the right even over the objection of, and contrary to the advice of, defense counsel. (People v. Bradford (1997) 15 Cal.4th 1229, 1332.) At the same time, a defendant's right to testify is subject to common sense conditions. Specifically, the defendant must make both a "timely" and "adequate demand to testify." (See People v. Alcala (1992) 4 Cal.4th 742, 805 (Alcala).)
In examining whether a violation of the right to testify occurred, a reviewing court will apply the abuse of discretion standard to the trial court's determination of the elements of timeliness and the adequacy of the defendant's demand to testify. (People v. Earley (2004) 122 Cal.App.4th 542, 546-547.)
Where a reviewing court determines that a violation of the right to testify did occur, the violation is subject to harmless error analysis under the federal constitutional standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (Cf. People v. Allen (2008) 44 Cal.4th 843, 871-872 (Allen) [right to testify reviewed under constitutional harmless error analysis in the context of a sexual predator proceeding].)
The Trial Setting
At the conclusion of the People's case, the trial court indicated that the defense had advised the court that they would not be calling any witnesses, including Ortega. A short discussion followed on the issue of whether the People would be allowed to reopen their case to have Ortega show tattoos on his body to the jury. Shortly thereafter, in the presence of the jury, the court asked Ortega's counsel how the defense would like to proceed, and counsel announced that the defense was resting. The court then asked the prosecutor whether she had a request, and the prosecutor asked to reopen for the purpose of having Ortega show his tattoos. The court granted the request. During this process, the prosecutor asked if Ortega could pull his shirt sleeve a little bit open to show a tattoo, at which point the following exchange took place:
"[Ortega]: I might as well. [¶] Can I say for the record, I was willing to testify, sir?
"The Court: Sir, only if your attorney asks you to give evidence. [¶] All right. Mr. Ortega is more than complying. He's actually taking his shirt off, and he's exposing his upper body, arms, chest, stomach, at least most of the stomach area. [¶] All right Mr. Ortega, that's fine. Thank you very much.
[¶] Ladies and gentlemen, does everybody have a chance to --- all right. . . . All right. Miss [prosecutor], anything else at this time?
"[The Prosecutor]: Nothing, your honor. The People rest.
"The Court: All right. The People rest. [¶] Anything further by the defense?
"[Defense Counsel]: No, your honor.
"The Court: Okay. We'll give Mr. Ortega a chance to get comfortable. [¶] Ladies and gentlemen, I have a series of instructions I'm going to give you. . . ."
At no point during the remainder of the criminal proceedings did Ortega make any comment about testifying.
Analysis
The parties agree that the only issue on appeal is the issue of whether Ortega made an "adequate" demand to testify in his own defense. We find that Ortega did not make an adequate demand to testify. Further, even were we to accept that there was error, we would find the People have met their burden of showing beyond a reasonable doubt that the error did not adversely affect Ortega's trial under Chapman. (See People v. Jackson (2014) 58 Cal.4th 724, 793 [in examining a claim of constitutional error under the Chapman standard, the burden is on the state to demonstrate to the reviewing court that the error did not cause prejudice to the defendant].)
Neither Ortega in his opening brief nor the People in their respondent's brief have discussed any case explaining the quantum of clarity required for a defendant to make an "adequate demand to testify." This said, we simply do not see that Ortega made such a request. At best, Ortega made an off-the-cuff remark as he was showing his tattoos: "I was willing to testify." He did not tell the trial court at that instant, or at any time, that he actually did "want" to testify, nor did he actually ask, request, or demand to be allowed to testify.
To avoid the conclusion that he did not make an adequate demand to testify, Ortega argues on appeal that the trial court should not have replied as it did to Ortega's "I was willing to testify" comment. He contends the trial court should have conducted an inquiry about the comment to determine whether Ortega actually did want to testify despite his counsel's repeated indications to the court that Ortega would not be testifying. Ortega cites People v. Dent (2003) 30 Cal.4th 213 (Dent) in support of his argument.
In Dent, the Supreme Court found that a trial court's response to a defendant's "conditional" comments about representing himself effectively "foreclosed any realistic possibility" that the defendant would consider self-representation to be "an available option." (Dent, supra, 30 Cal.4th at p. 221.) There, the trial court twice unequivocally stated that it would not let the defendant proceed as a self-represented litigant in a death penalty murder trial. The California Supreme Court found that the trial court had deterred the defendant from being able to develop and make the type of "unequivocal" request for self-representation that is required under Faretta.
Assuming that the law regarding Faretta's requirement that a criminal defendant must make an "unequivocal demand" for self-representation before a trial court may allow a defendant to forego his or her legal counsel (see, generally People v. Wright (1990) 52 Cal.3d 367, 409 disapproved on a different ground by People v. Williams (2010) 49 Cal.4th 405, 459) should be examined similarly to the law regarding the requirement that a defendant must make an "adequate demand" to testify (Alcala, supra, 4 Cal.4th at p. 805), Dent is readily distinguishable. In Ortega's present case, the record does not establish that the trial court unequivocally shut down the possibility of Ortega testifying.
We do, however, caution the trial court to be more careful in its statements to a defendant in such circumstances.
In any event, we would find any error to be harmless under Chapman. The exclusion of a defendant's testimony is harmless error under a Chapman analysis when the facts to which he or she would have testified would not have affected the verdict. (Allen, supra, 44 Cal.4th at p. 872.) Here, Ortega argues on appeal that he indicated during two Marsden hearings that he would have testified (1) "that he was not in possession of the stolen items;" (2) "the reasons he was in the white van;" and (3) "that he was 'innocent' of the robbery." We find any error harmless under Chapman because the proffered testimony, assuming that it would have been given as stated, would have been futile and would not have affected the jury's verdict.
At a motion to suppress hearing, which we discuss below, a police officer testified that Ortega stated at the time he was found in the van that he was homeless and was looking for a place to sleep.
First, the reason that Ortega was in the white van was irrelevant to any issue involved in his robbery trial; the reason Ortega was in the van hours after the robbery had nothing to do with whether Ortega robbed Abarca hours earlier. Second, testimony that Ortega did not have Abarca's iPhone and credit card when he was searched would simply have been rejected as defying the physical evidence. We are convinced beyond a reasonable doubt that the jurors would not have found that Officers Herrera and Bonilla were carrying around Abarca's property when they encountered Ortega. We can think of no other scenario for why Abarca's iPhone and credit card became involved in Ortega's case if, in fact, those items had not been in Ortega's possession at the time he was searched. In summary, Ortega's defense would not have been helped had he given implausibly wrong testimony.
This leaves only the prospect that the result of Ortega's case may have been different if only he gave testimony that he was "innocent" of the Abarca robbery. This testimony, of course, would have been given against a backdrop that he had prior convictions for robbery (§ 211) and taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)). It also would have been given against the identification of Abarca and Martinez, and against the fact that he possessed Abarca's property. In short, the evidence overwhelmingly supported Ortega's conviction, and any testimony on his part would not have changed the result of his trial. II. The First Marsden Motion Claim
Ortega contends his robbery conviction must be reversed because the trial court erred in denying his first Marsden motion. We disagree.
The Trial Setting
At a pre-trial hearing on January 16, 2015, about six months before his trial, Ortega filled out a Faretta waiver form after defense counsel indicated to the trial court (Hon. Laura F. Priver) that Ortega wanted to represent himself. After receiving the waiver, the court began discussing the right to self-representation with Ortega, including the risks. During the course of these exchanges, Ortega made statements indicating his dissatisfaction with his appointed counsel, including the following comment:
"At this point I'm just trying to make a conscious decision that's gonna help me better fight this case and at this time the requests I've been making I feel like I'm getting negative results so I don't know what else to do. Like I really don't—I would really much rather have an attorney and request maybe possibly getting an attorney that I can come to terms with as far as— "
On hearing Ortega's comment, the court decided that it should treat his request for self-representation as a request for a Marsden hearing. During an ensuing hearing outside the presence of the prosecutor, Ortega's counsel, Public Defender Susanne Blossom, told the court that it was true that she had not done certain things that Ortega wanted her to do, and then explained what Ortega wanted her to do, and why she had not done what he wanted. According to Blossom, Ortega wanted his case transferred to "Judge Rubin's court." When the court commented that Judge Rubin was retired, and that it was "impossible" to accommodate Ortega's desire, Blossom stated, "right," to both aspects of the court's comments. Further, the court stated that a party is not allowed to select a specific courtroom for a case in any event.
Blossom also informed the court that Ortega wanted Blossom to give the court some letters that he wrote to the court. Blossom stated that she had declined to do so because her case tactics "involve not permitting [a] client to speak until the time they choose to testify."
Finally, Blossom stated that Ortega wanted Blossom to file a "Prop 47 petition." Her reason for not doing so "was because his open case is not a Prop 47 case," and the court agreed. Blossom added that Ortega's prior robbery conviction alleged in the information was unaffected by Proposition 47.
At the end of the Marsden hearing, the court indicated that it would "keep [Ortega's Faretta waiver form] in the file without acting on them," and told Ortega that, if he changed his mind about wanting self-representation and wanted the court to act on his request for self-representation, then the court would "do that." Ortega replied, "Thank you."
Given the totality of the exchanges during the hearing on January 16, 2015, we find the trial court impliedly found that Public Defender Blossom's representation of Ortega was not deficient, and that there was no irreparable breakdown in the attorney-client relationship affecting Ortega's right to the assistance of counsel. We acknowledge that the reporter's transcript shows no explicit ruling. The court's minute order states that Ortega's Marsden motion was denied.
Analysis
A defendant's constitutional right to assistance of counsel includes the right of an indigent defendant to have appointed counsel replaced when the failure to do so would substantially impair or deny the right to assistance of counsel. (Marsden, supra, 2 Cal.3d at p. 123.) At the same time, however, a defendant's right to appointed counsel does not include the right to demand the serial appointment of different lawyers until he or she finds a lawyer to his or her liking. (People v. Ortiz (1990) 51 Cal.3d 975, 980, fn. 1.) When a defendant seeks to discharge his or her appointed lawyer and substitute a new lawyer, Marsden dictates that the trial court must permit the defendant to explain the basis of his or her dissatisfaction. A defendant is entitled to relief when he or she shows that appointed counsel is not providing effective representation, or that there is an irreconcilable conflict in the relationship between the defendant and counsel such that ineffective representation is likely to result. (People v. Streeter (2012) 54 Cal.4th 205, 230.) A defendant is not entitled to relief merely because he or she disagrees with counsel over reasonable tactical decisions. (People v. Memro (1995) 11 Cal.4th 786, 858, overruled on other grounds by People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.)
When credibility questions arise between a defendant's assertions, and appointed counsel's explanations regarding the representation, it is within the trial court's credibility-determining role to accept counsel's explanations. (People v. Smith (1993) 6 Cal.4th 684, 696.) The court's ultimate task is to determine factually and legally whether appointed counsel's legal representation is constitutionally ineffective, or whether an irreconcilable conflict exists.
A trial court's decision to deny a Marsden motion is reviewed under the abuse of discretion standard. (People v. Earp (1999) 20 Cal.4th 826, 876.) A reviewing court will not find an abuse of discretion unless the defendant has shown that a failure to replace the appointed counsel actually resulted in a substantial impairment or denial of his or her right to assistance of counsel. (People v. Hart (1999) 20 Cal.4th 546, 603.)
Having reviewed the reporter's transcript of the Marsden hearing in light of the above-stated rules, we simply do not accept Ortega's argument that the trial court "fail[ed] to address [his] concerns" and "fail[ed] to question appointed counsel regarding those concerns." Here, the record shows the court conducted a hearing, and listened to what was going on. Public Defender Blossom's comments showed no more than that Ortega wanted his case to unfold in a manner that was not proper, and that he had other ideas about the tactics which his counsel should have been employing. We see no support for a conclusion that Public Defender Blossom was providing inadequate representation. Neither do we see any support for a conclusion that there was an irreconcilable breakdown in the relationship between Ortega and Public Defender Blossom. Ortega's opening brief makes allusions to Public Defender Blossom's "failure to investigate" Ortega's case, but we see no support for such an assertion in the record.
We add one final note on a matter that is not developed in the parties' briefs. At the time of Ortega's Marsden motion in January 2015, he was, as noted above, represented by Public Defender Blossom. However, by no later than May 2015, Ortega was represented by new appointed counsel, namely, Public Defender Saewon Yang. Public Defender Yang continued to represent Ortega through the time he filed his motion to suppress in May 2015, and through the hearing on the motion and trial in June 2015. We do not see how any complaints about Ortega's initial appointed counsel could have anything to do with his case when new and different appointed counsel took over for the bulk of the case. III. The Second Marsden Motion Claim
Ortega made another Marsden motion after the jury's verdict, on the day calendared for the hearing on the alleged priors and for his sentencing. On appeal, he argues that our court "should reverse and remand [his case] with directions for the trial court to substitute counsel to prepare a new trial motion . . . ." We find no ground for reversal.
We have set forth the applicable law above. On the merits of Ortega's claim of post-verdict Marsden error, we find the trial court did not abuse its discretion in denying the motion. The reporter's transcript of the Marsden hearing shows that the court gave Ortega an opportunity to state his concerns regarding his counsel's representation. Ortega asserted that his motion to suppress had not been "vigorously pursued" by Public Defender Yang. Also, Yang had not issued a subpoena for the clothes that Ortega had been wearing when he was searched. Ortega asserted that his clothes would show that he did not have an iPhone in his pockets, because, according to Ortega, the shorts he was wearing "did not have pockets." As Ortega stated, his clothes would have been "exculpatory evidence." Finally, Ortega asserted that counsel should "file for retrial" based on his motion to suppress claim and clothes claim.
Throughout Ortega's exchanges with the court, the court indicated that Ortega was attempting to relitigate the motion to suppress, and found no merit in Ortega's assertions that the motion should have been granted. After listening to Ortega, the court asked Public Defender Yang to discuss Ortega's claim about his clothes. Yang explained that she had considered the probative value of the clothes that he had been wearing when searched as "very slight," and had focused instead on the victim's identification of Ortega as the robber. When the court asked whether the defense was considering filing a motion for new trial, Yang said, no, that she did not believe a new trial motion would be successful. Ortega further claimed that he asked his counsel to file a Romero motion to dismiss his prior strike (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497), but counsel had not done so. The court ultimately noted that Ortega's counsel indicated that she was going to file such a motion at the sentencing hearing.
In February 2016, Public Defender Yang filed a Romero motion. The court denied the motion at the sentencing hearing. Ortega does not challenge the court's ruling on appeal.
At the conclusion of the Marsden hearing, the court denied Ortega's motion, expressly finding that his counsel had not failed to present a defense or litigate the case adequately.
We find no abuse of discretion in the trial court's ruling to deny Ortega's post-verdict Marsden motion. First, with regard to the rule that a trial court must conduct a hearing into a defendant's complaints, the record belies any assertion that the court here did not do so. Second, with regard to the requirement that a defendant demonstrate that his or her counsel provided inadequate representation, we see no deficiency. The record shows at most that Ortega disagreed with his counsel's tactics. Similarly, the assertion that a new trial motion should have been filed does not support a conclusion that Ortega suffered from the results of deficient legal presentation. The record on appeal does not include material showing that a motion for new trial had a reasonable possibility of success. Ortega's claim about a failure to file a Romero motion was premature.
We have read the reporter's transcript from the hearing on Ortega's post-conviction Marsden motion and reject his contention that the trial court did not give him a fair hearing because the court was "hostile" to the motion. We acknowledge that the court made several comments to the effect that Ortega did not seem to understand the purpose of a Marsden hearing. All this considered, we do not see hostility to the motion, only rulings against the motion. The record does not support a claim that the court failed to afford a fair hearing on the motion. IV. The Faretta Claim
Ortega next contends his robbery conviction must be reversed because the trial court erred in denying his request for self-representation under Faretta. We disagree.
The Governing Legal Principles
A criminal defendant has a federal constitutional right to represent himself provided that he or she voluntarily and intelligently elects to do so. (Faretta, supra, 422 U.S. at p. 836; see, e.g., People v. Windham (1977) 19 Cal.3d 121, 124 (Windham).) But to invoke the right of self-representation, a defendant must assert the right "unequivocally" and "within a reasonable time prior to the commencement of trial." (Windham, supra, 19 Cal.3d at p. 128, fn. omitted.)
A trial court "should draw every reasonable inference against waiver of the right to counsel," and, for this reason, "the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied." (People v. Marshall (1997) 15 Cal.4th 1, 23 (Marshall); see also People v. Tena (2007) 156 Cal.App.4th 598, 607.)
A reviewing court must examine the entire record de novo to determine whether a defendant actually made an unequivocal request for self-representation. (Marshall, supra, 15 Cal.4th at p. 23; People v. Danks (2004) 32 Cal.4th 269, 295.)
Analysis
We find Ortega did not make an unequivocal request for self-representation as contemplated under Faretta. As noted above, the record shows that, when the trial court began to discuss self-representation, Ortega responded as follows:
" . . . I feel like I'm getting negative results [asking my counsel to do things] so I don't know what else to do. Like I really don't—I would really much rather have an attorney and request maybe possibly getting an attorney that I can come to terms with as far as — " (Italics added.)
As we noted, the trial court understood Ortega's comments to show that he truly wanted a Marsden hearing.
Ortega's comment cannot reasonably be construed as an unequivocal request for self-representation because he explicitly stated that he "would really much rather have an attorney," and that he was actually interested in "possibly getting an attorney that [he could] come to terms with." No more needs to be said. Ortega's language defeats any possible conclusion that he truly desired to represent himself. (People v. Tena, supra, 156 Cal.App.4th at p. 607.)
Even assuming Ortega made an unequivocal request to represent himself by requesting to fill out the court's Faretta waiver form, the record shows he abandoned his request for self-representation. The Faretta right, "once asserted, may be . . . abandoned." (People v. Dunkle (2005) 36 Cal.4th 861, 909 [disapproved on different grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22], citing People v. Skaggs (1996) 44 Cal.App.4th 1, 8 (Skaggs) with approval.) In Skaggs, the Court of Appeal found a defendant abandoned his Faretta request where the court did not rule on an equivocal request for self-representation, and the defendant never mentioned the request again. (Skaggs, at pp. 7-8.) The reason for finding abandonment in such circumstances is to discourage "gamesmanship by preventing a defendant who realizes that his Faretta request has not been addressed from saving his Faretta ace to play triumphantly on appeal.'" (Id. at p. 8, quoting People v. Kenner (1990) 223 Cal.App.3d 56, 62.)
We have an even stronger showing of abandonment in Ortega's present case. Here, Ortega made an equivocal request for self-representation, and, in response, the court actually did act on the request - it treated the request as a request for a Marsden hearing. At the conclusion of the hearing, the court expressly told Ortega that the court would keep his Faretta waiver form "in the file," in the event that Ortega wanted to renew his request later in the case for self-representation. Ortega never did so. Finding abandonment of a Faretta request is appropriate in such circumstances. (Skaggs, supra, 44 Cal.App.4th at p. 8.)
V. The Motion to Suppress
Ortega next contends the trial court erred in denying his motion to suppress the items of Abarca's property that Officers Herrera and Bonilla found on Ortega's person when they searched him outside the parked van. Ortega asserts Harvey-Madden error, arguing "the prosecution failed to establish the source of probable cause [sic], thus rendering [his] ensuing detention and search illegal under the Fourth Amendment." We are not persuaded.
See People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey); People v. Madden (1970) 2 Cal.3d 1017 (Madden).
We begin our analysis by assuming the detention required compliance with the principles enunciated in Harvey-Madden. We then discuss in section 3.c. our separate finding that even if the prosecution failed to comply with Harvey-Madden, the police nevertheless had reasonable suspicion to effect Ortega's detention.
The Suppression Hearing
Ortega filed a motion to suppress the evidence recovered as a result of the detention. Ortega argued, without further specificity, that "[t]he search and seizure in this case occurred without a warrant," and that "[a] search without a warrant is presumptively illegal." Further, Ortega sought the source of "probable cause" under Harvey-Madden.
The prosecution filed an opposition, and argued that Ortega had not demonstrated he had standing to bring the motion because he had no reasonable expectation of privacy in a van which he neither owned nor leased.
On the day this case was sent out for trial, the court heard Ortega's motion to suppress. At the outset of the hearing, the prosecutor reasserted the standing issue, and further argued that Ortega's motion lacked "specificity," leaving a question as what relief he wanted. When the court asked Ortega's counsel to "explain exactly what [the defense] had in mind in [its] motion," counsel replied: "It [is the] defense's contention . . . that the detention of Mr. Ortega was illegal, that it was a prolonged, illegally prolonged detention. They did not have probable cause [sic] to keep him and search him, his person." Thereafter, the court began the hearing at which Officers Herrera and Bonilla testified. The officers' testimony was consistent, and, when viewed in support of the trial court's ruling (see People v. Jenkins (2000) 22 Cal.4th 900, 969), established the following facts.
On September 2, 2014, Officers Herrera and Bonilla were on patrol in a police car when they received a radio report sometime between 3:00 to 4:00 a.m. regarding a vehicle burglary. Here we find another factual discrepancy in the record. In questioning Officer Herrera, the prosecutor referred to these events as occurring on "November 2nd." Again, other materials in the record clearly indicate that the events in question in this case occurred on September 2, 2014. Officer Bonilla was driving. The radio report indicated that two male Hispanics were trying to break into or breaking into a white van at the corner of 81st Street and Broadway.
Officer Bonilla drove on Broadway, and turned eastbound onto 81st Street. Upon turning onto 81st Street, the officers saw a male, later identified as Ortega, sitting in the front center or driver's seat of a white van that was parked facing westbound. It was the "one" white van in the area. At the same time that the patrol car was nearing the van, Ortega looked in the officers' direction and then, in Officer Herrera's words, "crouched down." Officer Bonilla saw Ortega go "down underneath . . . the dashboard," as though he was "try[ing] to conceal himself."
The prosecutor's next question to Officer Herrera after he testified that he saw Ortega crouch down was whether he made "any observations in or around the vehicle," and Officer Herrera testified that he saw a broken rear passenger window in the van and glass on the ground next to the passenger's side of the van. During Officer Bonilla's testimony, the same line of questioning took place. After Officer Bonilla testified about seeing Ortega go under the dashboard, the prosecutor then asked whether he made "any observations about the van," and Officer Bonilla testified that he saw a shattered window and glass adjacent to the van. During Officer Herrera's testimony, the trial court interjected after the officer said he saw a broken window and glass, and asked its own questions of the officer as follows: "Q: When you say the glass was broken, you actually saw the window was broken? A: Yes. Q: Was there glass on the ground that you saw? A: Yes." The prosecutor then asked questions concerning the events in getting Ortega out of the van and the search.
On cross-examination, Ortega's counsel asked both officers questions about the timing of their observations of the broken window in the white van. When cross-examining Officer Herrera, Ortega's counsel asked: "And then it was after that, [i.e., the handcuffing,] you took a look — [a] closer look at the vehicle, and saw that the window was shattered; correct?" Officer Herrera answered, "Yes." During cross-examination of Officer Bonilla, counsel asked, "And then at that point, [i.e., the handcuffing,] you take a closer look at the vehicle, and you saw that the window was shattered; correct?" and Officer Bonilla answering, "Yes." No further clarifying questions were thereafter asked by either the prosecutor or Ortega's counsel.
In his petition for review, Ortega took the position that this evidence conclusively and exclusively established that Officers Herrera and Bonilla did not observe the van's broken passenger side window, and did not see any broken glass on the ground, until after they had handcuffed him. We disagree.
Here, there is no evidence which precludes a finding that the officers saw broken glass on the ground prior to detaining Ortega. The question put to the officers during cross-examination was not "When was the first time you saw broken glass on the ground?" The question on cross-examination was about when the officers saw "the shattered window." That the officers testified they saw the shattered window after handcuffing Ortega did not establish that they had not seen broken glass on the ground before detaining him. We view the evidence in the light most favorable to the trial court's ruling. (People v. Jenkins, supra, 22 Cal.4th at p. 969.) Given this record, devoid of any evidence indicating the broken glass on the ground was observed only after the detention, we will view the evidence in light of the testimony on direct examination, and in favor of the trial court's ruling. As a result, we find that the officers saw the glass on the ground before the detention.
We now return to the testimony. Officer Bonilla crossed over 81st Street and stopped the officers' patrol car in front of and facing the van, "offset" from the van so that the patrol car was toward the middle of the street, with its driver's side door "facing" the driver's side door of the van. Officers Bonilla and Herrera both got out of their car and moved toward the passenger side of the van, still staying in front of the vehicle. The officers "ordered" Ortega to exit the van. While Ortega was getting out of the passenger side of the van, both officers saw him "toss" a screwdriver inside the van onto the floorboard. Immediately after Ortega got out of the van, Officer Herrera patted him down "for officer safety," and the officers placed him in handcuffs. During the search, Officer Herrera recovered a cell phone, credit cards, and fake identification. Further inquiry revealed that that the iPhone belonged to Abarca, and that Abarca's name was on one of the credit cards.
After Ortega was handcuffed, Officer Bonilla personally contacted the citizen who had called in the vehicle burglary report to the police department. The citizen reporter said the person who broke into the white van was a male Hispanic wearing a black baseball cap, a blue Dodger's jacket, a white t-shirt and gray shorts. Officer Bonilla testified that when he encountered Ortega, he was wearing a blue jacket, a white t-shirt, gray shorts and a black baseball hat.
After the officers finished testifying, the lawyers argued the motion to suppress to the trial. During argument, the court commented: "Let's just say they were driving down the street, and they saw a white van with glass on the ground. They looked around and saw somebody in the van at 3:00 in the morning, and the person they see ducks down. What would you do if you were a police officer?" Ortega's counsel implicitly agreed that a set of facts which included broken glass would give an officer grounds to investigate, but argued that the evidence did not show the facts stated by the court. Here, counsel argued that the officers did not find the window was shattered until after they put Ortega in handcuffs. The court acknowledged counsel's argument and then asked what other claims she wanted to present. Counsel then questioned the sufficiency of the substance of the citizen's report to connect Ortega specifically with the reported vehicle burglary, and that the officers seeing Ortega trying to hide was not enough for a detention, citing People v. Wilkins (1986) 186 Cal.App.3d 804 (Wilkins).
After hearing defense counsel's argument, the court stated: "Now, I'm going to deny [the motion to suppress], but I'm going to say preliminarily deny it. What I've heard here is certainly sufficient to justify what the officers did in the recovery of the evidence. [¶] Now, if, during trial, at some time before trial ends or perhaps if the . . . trial concludes, and the defendant is found guilty, I'll give the district attorney an opportunity to have one or both of these officers return, and they can get the communication [of the citizen's report of a vehicle burglary], and we can verify that . . . . So that's where we stand."
At trial, Officer Herrera testified on direct examination that he and Officer Bonilla went to the area of 81st Street and Broadway in response to a radio call of a "burglary from motor vehicles." Beyond this, Officer Herrera testified only that the report described a "white van." No other evidence concerning the substance of the citizen report to the police or the police radio call to Officers Herrera and Bonilla was introduced. During Officer Bonilla's testimony, he did not mention a radio call at all. We see nothing in the reporter's transcript to show that the radio call was admitted at trial, nor do we see that the issue of the radio call was raised during trial at any time by either party. --------
During a post-verdict hearing on Ortega's second Marsden motion (see, ante), the court reiterated its perspective in denying Ortega's section 1538.5 motion. After Ortega complained that the prosecution had not brought in the "911 call" to be "played in court," and that this could be an issue "[i]f the police never received a 911 call," the court stated: "So just so the record is clear, based on the evidence the court heard, both in examination and cross-examination, the 1538.5 motion would be denied. . . . Let's be real about this. [Three] o'clock in the morning, you're in a van with the glass broken, crouched down when the officer spots you, and as you're getting out of the van, at some point you toss a screwdriver to the side. . . . Although [Mr. Ortega] may have some issues on the tactics as far as the 1538.5 motion is concerned, I've explained the court's position on that in this case. It was very clear. As far as the court [is concerned], this was not really a close issue as far as the evidence I heard, including the search and the obtaining of evidence and your arrest."
The Standard of Review
When analyzing a ruling on a suppression motion, we "'"defer to the superior court's express and implied factual findings if they are supported by substantial evidence, [but] we exercise our independent judgment in determining the legality of a search on the facts so found."'" (People v. Tully (2012) 54 Cal.4th 952, 979.) "'As the finder of fact . . . the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable.'" (Ibid.)
The Harvey-Madden Requirement
The Harvey-Madden line of cases establish the evidentiary rules that the prosecution must satisfy to "prove the underlying grounds" for an arrest "when the authority to arrest has been transmitted to the arresting officer through police channels." (People v. Collins (1997) 59 Cal.App.4th 988, 993 (Collins).) When a defendant challenges probable cause for an arrest that was based on information in a radio call received by the arresting officer, the Harvey-Madden rule requires the prosecution to prove that the information which was transmitted to the arresting officer was based on "'something other than the imagination of [the transmitting] officer . . . .'" (Collins, at p. 993; and see also, e.g., People v. Armstrong (1991) 232 Cal.App.3d 228, 234.)
The Harvey-Madden rule also applies to the "reasonable suspicion" standard for an officer in the field to effect a detention to investigate possible criminal activity. (See People v. Brown (2015) 61 Cal.4th 968, 983 (Brown).) Thus, when a defendant challenges whether the information in a radio call provided a detaining officer with reasonable suspicion for an investigatory detention, the prosecution has the same Harvey-Madden burden as in the context of whether probable cause existed to arrest. Accordingly, the prosecution must show that the reasonable suspicion information upon which the officer in the field relied was not made up inside the police station. (Brown, at p. 983.)
In summary: "'[I]f the detaining officer himself does not have personal knowledge of facts justifying the detention, but acts solely on the basis of information [transmitted to] him through police channels, the prosecution must establish in court, when challenged, evidence showing that the officer who [transmitted] the information . . . was in possession of facts [justifying the detention].'" (People v. Orozco (1981) 114 Cal.App.3d 435, 444 (Orozco).) Harvey-Madden's objective is not necessarily to establish the absolute truth of information that was in the possession of a transmitting officer, but rather, to show that the transmitting officer did, in fact, possess information of a nature that would support either probable cause for an arrest or reasonable suspicion for a detention. If the transmitting officer possessed such information, then he or she could properly alert the officer in the field who actually effected the arrest or detention based on that information. As stated in Orozco, the purpose of Harvey-Madden "is to negate the possibility that the facts which validate the conduct of the officers in the field are made up inside of the police department by somebody who is trying to frame a person . . . ." (Orozco, at p. 444.)
The prosecution may satisfy the Harvey-Madden requirement by presenting various forms of evidence. As indicated in Brown, the prosecution may call the police dispatcher as a witness at the suppression hearing to testify about information that he or she possessed when he made a radio call, or by introducing a recording of the citizen's report into the police. (Brown, supra, 61 Cal.4th at p. 983.)
In Orozco, Division Five of our court explained that the prosecution may also use circumstantial evidence to satisfy the Harvey-Madden requirement. In Orozco, an anonymous caller purportedly reported to police that shots were being "'fired out of a cream, vinyl top over a cream colored vehicle in the area of Phillips and East End . . . .'" (Orozco, supra, 114 Cal.App.3d at p. 440.) One of the officers who responded to the scene found two expended cartridges on the ground within a four-foot span of the passenger door of the vehicle at the scene. (Ibid.) On these facts, Division Five found the Harvey-Madden requirement had been satisfied, notwithstanding that the trial court "should have insisted that the [prosecution] produce the dispatcher or other competent evidence if the dispatcher was unavailable." (Orozco, at p. 444.)
As reasoned by Division Five: "The [prosecution] never proved that [the citizen's call was actually] made but they did prove that there were cartridges within four to five feet of the passenger door to the car when the police looked for them. That these cartridges were found was testified to by officers who were subject to cross-examination [at the motion to suppress]. The presence of the cartridges certainly supports a very strong inference that the police did not make up the information from the informant. Thus, the veracity of the dispatcher's statement that he received a call was circumstantially proved." (Orozco, supra, 114 Cal.App.3d at pp. 444-445.)
In People v. Johnson (1987) 189 Cal.App.3d 1315 (Johnson), circumstantial evidence was likewise found sufficient to prove the information given to the officers in the field was not made up in the police station. There, two officers on patrol received a radio call to respond to the vicinity of 2541 Sleepy Hollow Lane based on a report of a possible burglary in progress. The radio call "stated that two Black males were climbing a fence into the backyard of a residence. They were described as 25 years to 30 years old; one having a moustache and wearing a red jacket and black pants, and the other wearing a black jacket and jeans." (Id. at pp. 1317-1318.) When the officers arrived at the scene, they saw two Black males standing about 10 yards from the backyard fence at 2541 Sleepy Hollow Lane. One had a beard and the other a goatee. One was wearing a red and black jogging shirt and jeans and the other a dark long-sleeved shirt and jean overalls. (Id. at p. 1318.) When the officers ordered the two men to "freeze," they ran, but were apprehended. After the chase, the officers recovered items the men threw away, which turned out to be property taken from the family that lived at 2541 Sleepy Hollow Lane. (Ibid.)
The defendants argued the trial court erred in denying "their claim that they were detained and arrested without probable cause being shown" in accord with Harvey-Madden. (Johnson, supra, 189 Cal.App.3d at p. 1319.) Specifically, the defendants argued the prosecution had failed to present "the testimony of the police dispatcher who made the radio transmission relied upon for probable cause." (Ibid.) The court rejected the defendants' argument, ruling that circumstantial evidence showed that a report of a burglary had, in fact, been called into the police station, and that the report had not been made up inside the police station. (Id. at pp. 1319-1320.)
As explained by the Johnson court: "In the case at bar, the information transmitted by the police dispatcher was corroborated by what the officers observed at the scene, making it virtually impossible for the information to have been made up in the police department. The officers at the scene were thoroughly cross-examined and the court obviously believed that they, in fact, had received the dispatch as they said they did and found the evidence as they described. The officers' observations corroborated the broadcast information in that (1) the defendants were Black males of approximately the same age of and dressed nearly identically to the suspects described in the radio broadcast; and (2) they were observed standing in the park, 10 yards from the rear fence of the burglarized home at 2541 Sleepy Hollow Lane and in the immediate vicinity of the area where the officers were directed by the dispatcher." (Johnson, supra, 189 Cal.App.3d at p. 1320.)
In re Richard G. (2009) 173 Cal.App.4th 1252 is similar. There, officers on patrol received a radio dispatch "that two males were causing a disturbance outside a residence at 133 North Juanita Street and that one of them was possibly in possession of a handgun. The police dispatcher further stated that one male was wearing a black T-shirt while the other was wearing a blue Pendleton-type jacket. They were walking toward [a park] located across the street from the North Juanita Street residence." (Id. at p. 1256.) When the officers arrived in the area, they drove around the park. "Within a few minutes, they saw two males and two females walking near the park. The males were wearing clothing that identically matched the description given in the radio dispatch." (Ibid.)
On this record, Division Six of our court ruled: "Where, as here, the evidence and the reasonable inferences flowing from it show that the police dispatcher actually received a telephone report creating a reasonable suspicion of criminal wrongdoing, it is not necessary to require strict compliance with the 'Harvey-Madden' rule." (In re Richard, supra, 173 Cal.App.4th at p. 1259, citing Orozco, supra, 114 Cal.App.3d at p. 444.) The court reasoned: "Absent (1) the officer [in the field] himself calling in the report to the dispatcher, or (2) clairvoyance on the part of the dispatcher, there is no way that the dispatcher could have manufactured these detailed descriptions at or near the place and time the officers [in the field] saw appellant and his companion matching the detailed descriptions." (In re Richard, supra, at p. 1259.)
Analysis
1. Introduction
As indicated, we begin by assuming Ortega's detention must comply with the rules set out in Harvey-Madden. Specifically, that the actions of Officers Herrera and Bonilla at the scene were based on a radio call, thus requiring the prosecution to show that the source of the radio call was not the mere imagination of an officer inside the police station. We find no error.
2. There was no Harvey-Madden Error
We have reviewed the evidence and find that a plethora of circumstantial evidence demonstrates the citizen's call was not made up in the police department.
Officer Bonilla testified at the hearing that after Ortega had been handcuffed, he contacted the citizen who had called in the vehicle burglary report to the police. Officer Bonilla spoke "personally" to the citizen reporter and acquired information about the suspect's clothing, the description of which matched nearly identically to the clothing Ortega was wearing. Indeed, the fact that Officer Bonilla spoke to the person who actually called in the vehicle burglary report standing alone is proof that such a call had been made. It negates the contention that the information about a vehicle burglary transmitted to Officers Herrera and Bonilla was made up by someone inside the police department; it shows the information was sourced from a citizen's crime report. This alone is sufficient to show there was no error.
But there is more. Like the cases we discussed, the information transmitted by the citizen informant was corroborated by the officer's observations at the scene. It is significant that Ortega was found a white van as reported in the radio call. Also, both the broken window and glass may be considered in this context, even though the broken window was not discovered until after Ortega was handcuffed. Like the discovery of the cartridge shells alongside the vehicle in Orozco amounted to circumstantial evidence showing that a caller had, in fact, reported that people were shooting a gun from the vehicle (Orozco, supra, 114 Cal.App.3d at pp. 444-445), the evidence of a broken window and glass on the ground nearby amounts to substantial circumstantial evidence showing that a caller had, in fact, reported a vehicle burglary of a van.
Given that the rules enunciated in Harvey-Madden were not violated, Ortega has failed to demonstrate that his detention was unlawful. We note that Ortega offers no argument or authority to challenge the manner or extent of the search after his detention; accordingly, we do not address this issue.
3. There was Reasonable Suspicion to Conduct the Detention Apart from Harvey-Madden
a. Introduction
In the trial court and in all aspects of his appeal, Ortega predominantly argued only that the prosecution should have called the police dispatcher as a witness to testify about information that he or she possessed when the radio call was made, or should have introduced a recording of the citizen's report into evidence. In one line of his opening brief, Ortega asserted that the prosecution failed to present evidence supporting a reasonable suspicion to support the detention. In his petition for review, Ortega argued in two short paragraphs that because the People did not comply with Harvey-Madden, the citizen report was only an anonymous tip which lacked the indicia of reliability sufficient for it to be relied on to provide reasonable suspicion for the detention.
In light of the state of the briefing, there is a basis for considering such a fact-driven issue concerning the informant's reliability to be forfeited. (People v. Tully, supra, 54 Cal.4th at pp. 979-980.) This said, we address the issue since Ortega's supplemental brief after remand from the Supreme Court touches on the subject.
We find the detention was justified because the citizen's report, analyzed as an anonymous tip, was sufficiently reliable to provide a reasonable suspicion. Further, we add that the detention was justified even without the anonymous tip, based on the officers' observations at the scene. Finally, we reiterate that Ortega offers no argument or authority to challenge the manner or extent of the search after his detention; accordingly, we do not address this issue.
b. Relevant Legal Principles
"A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231 (Souza).) "The time of night is [a] pertinent factor in assessing the validity of a detention." (Id. at p. 241.) A person's "evasive conduct" or "sudden flight" from police also tends to establish the existence of reasonable suspicion. (Id. at p. 242.) Furtive movements or gestures alone are insufficient to establish probable cause that criminal activity is afoot. (People v. Superior Court (1970) 3 Cal.3d 807, 827-828, fn. 13.) However, furtive gestures coupled with other factors may provide reasonable suspicion that activity out of the ordinary has taken place. (People v. Flores (1972) 23 Cal.App.3d 23, 27-28.)
The concept of reasonable suspicion cannot be reduced to "'a neat set of legal rules.' [Citation.]" (United States v. Sokolow (1989) 490 U.S. 1, 7 (Sokolow).) "Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause . . . ." (People v. Wells (2006) 38 Cal.4th 1078, 1083.) "The officer, of course, must be able to articulate something more than an 'inchoate and unparticularized suspicion or "hunch."' [Citation.]" (Sokolow, supra, 490 U.S. at p. 7.)
Even when factual circumstances observed by an officer might have an innocent explanation, they may still give rise to a reasonable suspicion which entitles the officer to perform an investigative detention. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 146; People v. Glaser (1995) 11 Cal.4th 354, 373; Souza, supra, 9 Cal.4th at p. 242; In re Tony C. (1978) 21 Cal.3d 888, 894.) "'[W]here a reasonable suspicion of criminal activity exists, "the public rightfully expects a police officer to inquire into such circumstances 'in the proper exercise of the officer's duties.'"'" (Brown, supra, 61 Cal.4th at p. 981.) However, "mere curiosity, rumor, or hunch" is not sufficient to support an investigative detention. (People v. Roth (1990) 219 Cal.App.3d 211, 214; and see also Brown, supra, 61 Cal.4th at p. 981.)
An anonymous tip to police may support reasonable suspicion provided the tip is sufficiently reliable. In Navarette v. California (2014) 572 U.S. ___ [134 S.Ct. 1683, 1688] (Navarette), there was an anonymous 911 tip that a driver of a specific pickup truck with a specific license plate number had run the anonymous caller off the highway at a specific location. Police responded within 18 minutes of the anonymous tip, spotted the truck near the location described by the caller and followed it for about five minutes before pulling it over. As the responding officers approached the truck, they smelled marijuana. The truck was searched and 30 pounds of marijuana were seized from the truck bed. The Supreme Court found the anonymous tip was sufficiently reliable to credit the allegation that the driver of the truck had attempted to run the caller off the highway and therefore justified an investigative stop. (Navarette, supra, 134 S.Ct. at pp. 1688-1689.) The court found the report reliable because the caller (1) "necessarily claimed eyewitness knowledge" of the dangerous driving, (2) must have known the truck was near the location where it was stopped, and (3) used the 911 system to report the incident and, in doing so, was presumably aware 911 calls are recorded and traceable. (Id. at pp. 1689-1690.)
Similarly, in Brown, supra, 61 Cal.4th 968, the California Supreme Court found a citizen's report of a disturbance to the police, when coupled with a police officer's "very quick response time" to the scene, and the defendant's presence "near the scene," sufficient to support reasonable suspicion of criminal activity justifying the officer's detention of the defendant for an investigation. (Id. at p. 981.) The facts of the phone call were described in Brown as follows:
"About 10:37 p.m. on a Sunday night, the San Diego County Sheriff's Department received an emergency call on its 911 line. The caller confirmed his address with the dispatcher and reported some people were fighting in an alley behind his home on Georgia Street in Imperial Beach. He could hear screaming and one person said, 'the gun was loaded.' The following colloquy ensued:
'911: And it sounds physical?
'[Caller]: Yeah, they are fighting right now. You hear the screams?
'911: I hear it. So, you heard one person say they have a gun and it's loaded?
'[Caller]: Yes.
"The caller estimated that more than four people were involved, and said the participants lived two houses down from him on the same block. The dispatcher sent an officer to the scene and stayed on the line with the caller. The dispatcher asked the caller to report any other mention of a weapon and asked if anyone had gotten into a car. The caller said there was a car in the alley, facing south toward Fern Avenue. He then relayed that he knew a squad car had arrived because he heard the siren and saw the lights. When the caller confirmed the officer was on the scene, the call ended. It had lasted approximately four minutes." (Brown, supra, 61 Cal.4th at pp. 972-973.)
The Supreme Court found the citizen's report reliable because (1) it showed the caller's personal knowledge of the incident; (2) the call was contemporaneous; (3) the caller used the 911 system which has features providing "some safeguards" against making false reports; and (4) it has been judicially recognized that private citizens who report crimes "generally have no bias or motive other than good citizenship, and therefore tend to be reliable." (Brown, supra, at pp. 981-982.)
As we explain below, we find the underlying citizen's report of a vehicle burglary in Ortega's present case sufficiently reliable to support a temporary detention stop for reasons aligned with those cases.
c. Analysis
The critical examination in this case is whether, when the officers arrived in the area of 81st and Broadway, they acted lawfully. The answer to that question is yes.
First, the citizen's report, as recounted through the officers' testimony at the 1538.5 hearing, presented the officers with information that a vehicle burglary had likely occurred. (Brown, supra, 61 Cal.4th at p. 981.) The transmission of the caller's report was that "two male Hispanics [were] trying to break into a white van at the corner." When the officers arrived at the scene, they did find a white van at the corner, there was a male Hispanic inside the van, and there was glass on the ground nearby. At about the same time, Ortega saw the officers and "crouched down" in an apparent attempt to "conceal himself." We are satisfied that these facts gave the officers "reasonable suspicion" to investigate possible criminal activity, and that the officers acted properly to determine whether something criminal was taking place. (See generally Terry v. Ohio (1968) 392 U.S. 1 (Terry).) The possibility of an innocent explanation, for example, that Ortega had car trouble or was merely sleeping in the van does not defeat a reasonable suspicion that criminal activity was afoot. (Brown, supra, 61 Cal.4th at pp. 985-986.)
The citizen's report was properly considered by the court to support its ruling. As in Navarette and Brown, the facts demonstrate the report was reliable. First, the witness here also necessarily claimed eyewitness knowledge of the vehicular burglary, and the officer's subsequent observations confirmed the caller's personal knowledge. Second, the citizen's vehicle burglary report was contemporaneous, providing an indicia of reliability. (Brown, supra, at pp. 981-982.) Third, this was a private citizen who made the tip and "private citizens who report criminal activity generally have no bias or motive other than good citizenship, and therefore tend to be reliable." (Id. at p. 982, citing People v. Ramey (1976) 16 Cal.3d 263, 268-269; People v. Brueckner (1990) 223 Cal.App.3d 1500, 1504; and Illinois v. Gates (1983) 462 U.S. 213, 233-234.)
Because Officers Herrera and Bonilla lawfully investigated a reasonably suspicious situation, and lawfully detained Ortega, Ortega has failed to demonstrate that the trial court erred in denying his motion to suppress the items found during the ensuing search of his person.
We add, in conclusion, that the trial court was correct in finding the detention was permissible even without considering the citizen's report. Without that report, the relevant facts are that when Officers Herrera and Bonilla arrived in the area of 81st and Broadway between 3:00 to 4:00 in the morning, they saw a parked van and saw Ortega sitting in the van, with broken glass on the ground nearby. At about the same time, Ortega saw the officers and "crouched down" in an apparent attempt to "conceal himself." We are satisfied that these facts gave the officers "reasonable suspicion" to investigate possible criminal activity, and that the officers acted properly to determine whether something criminal or innocent was taking place. (Terry, supra, 392 U.S. 1.) We reiterate that though there also could have an innocent explanation for this conduct, that does not mean the officers could also find a reasonable suspicion that criminal activity was taking place. (Brown, supra, 61 Cal.4th at pp. 985-986.) As experienced officers, they would have understood that a majority of thefts involving motor vehicles take place after midnight. (See Souza, supra, 9 Cal.4th at p. 241.) There was no need for Officers Herrera and Bonilla to rely on a "mere hunch" to have a reasonable suspicion that criminal activity was afoot involving Ortega, thus justifying a brief investigative detention.
Ortega's reliance in Wilkins, supra, 186 Cal.App.3d 804 for a different conclusion as to reasonable suspicion is not persuasive. In Wilkins, the Court of Appeal ruled that a defendant sitting in a parked vehicle in the parking lot of a convenience store at 10:15 p.m., a time when the store would typically be open, did not create a reasonable suspicion, not even given the fact that the defendant "slid down" in the seat when the police officer's car drove by. (Id. at pp. 807, 811.) Here, we do not have a person in a car in the parking lot of an open retail store. As we have explained above, Ortega was in a parked vehicle on a public street at 3:00 to 4:00 in the morning and there was broken glass on the ground nearby. In addition, Ortega immediately made evasive actions in an apparent attempt to hide himself from police.
Ortega's reliance on People v. Perrusquia (2007) 150 Cal.App.4th 228 is similarly unpersuasive. There, as in Wilkins, the defendant was in a car in a parking lot of a convenience store that was open. When the police officer went to approach the defendant's car, the defendant quickly got out of the vehicle and went toward the store. At that point, the officer detained the defendant. (Id. at pp. 231-232.) The Court of Appeal saw no more than a police officer's "hunch" supporting his decision to detain the defendant. (Id. at p. 234.) Here, as we have discussed, Officers Herrera and Bonilla were acting on more than a hunch, and were not investigating a person sitting in a car in parking lot of an open retail store.
DISPOSITION
The judgment is affirmed.
BIGELOW, P.J. We concur:
RUBIN, J.
GRIMES, J.