Opinion
A131819
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. RONALD A. SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC070669A, SC071480A & SC071634A)
Defendant Ronald A. Smith appeals from a final judgment following entry of his no contest pleas and the trial court's imposition of a sentence of six years and eight months in state prison with credit for time served. Defendant's appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and requests that we conduct an independent review of the record. Defendant was informed of his right to file a supplemental brief and did not file such a brief. (See People v. Kelly (2006) 40 Cal.4th 106, 124.) We have conducted the review requested by appellate counsel and, finding no arguable issues, affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2010, in case number SC070669A, the San Mateo District Attorney filed an eleven-count information accusing defendant of five different felony drug offenses (counts 1-5), one misdemeanor drug offenses (count 11), felony receipt of stolen property (count 6), misdemeanor filing of a false report (count 8), and three misdemeanor vehicle code violations (counts 7, 9, and 10). The offenses alleged in case number SC070669A are based on three separate incidents as described below.
Counts 1-3 and count 9 are based on the following events that occurred on December 28, 2009. On that date, Half Moon Bay police received a report of an intoxicated motorist driving a white pickup, license number 4U42389. Officers searched the area and located the truck, driven by defendant, backing out of a 7-11 parking lot on San Mateo Road. Police questioned defendant and asked if they could search the truck. Defendant consented to the search. In the truck, police found methamphetamine, marijuana, prescription pills (Lorazepam), packaging materials, a scale, a cell phone and cash. The cell phone contained text messages indicating defendant was selling drugs.
Counts 4-6 and counts 10-11 are based on the following events that occurred on December 4, 2009. On December 4, defendant was stopped in a parking lot for riding a bicycle without a light at night, was observed to be under the influence of a controlled substance, and admitted ingesting methamphetamine earlier in the day. Defendant told police he brought the bike to the parking lot in his truck because someone was interested in buying it. Defendant consented to a search of his truck, which was parked nearby. In the truck, police found 28 grams of methamphetamine, 17 grams of marijuana, a digital scale and packaging materials. Upon further questioning, defendant reported having stolen property in a storage locker. Police searched the locker with defendant's consent and recovered two flat screen televisions, a valuable painting and various electronics.
Counts 7 and 8 are based on the following events that occurred on November 25, 2009. On November 25, at approximately 2:10 a.m., officers were dispatched regarding a person driving recklessly. When the officers arrived at the location provided by dispatch, they observed an unoccupied damaged vehicle. The vehicle had struck the center median and knocked down a light pole. Officers attempted to contact defendant at the residence to which the vehicle was registered but found the residence vacant. Later that afternoon, defendant came to the police station and reported the vehicle stolen. Defendant recanted when advised of the consequences of filing a false report.
The DA filed a second information against defendant on August 4, 2010, in case number SC071480A. The information alleged defendant committed felony evading a police officer while operating a motor vehicle (count 1) and felony receipt of stolen property (count 2). The offenses alleged in case number SC071480A are based on events that occurred on June 17, 2010, when police stopped defendant's vehicle after clocking his speed in excess of 90 miles per hour on Highway 101. As officers approached defendant's vehicle on foot, defendant made a U-turn over a concrete island and sped off. Police set off in pursuit. During the pursuit, defendant drove at excessive speeds, ran several red lights and almost collided with a stationary vehicle. After defendant was apprehended, police searched his vehicle and found several credit cards and other pieces of identification belonging to two victims.
The DA filed a third information against defendant on August 30, 2010, in case number SC071634A. The information alleged defendant committed two felony crimes of receiving stolen property (counts 1 and 3), felony taking of a vehicle (count 2), felony attempted larceny (count 4), felony identity theft (count 5), three felony drug offenses (counts 6-8), misdemeanor resisting an officer (count 9), and misdemeanor possession of drug paraphernalia (count 10). The offenses alleged in case number SC071634A are based on the following events: On June 1, 2010, Redwood City police responded to a report of a theft. The victim stated that during the night someone entered his unlocked vehicle and took his cell phone and wallet containing his driver's license and credit cards. The following day, the victim reported that keys to a second vehicle were also missing, as well as a Chase credit card, which had been used for three unauthorized purchases. Subsequently, officers viewed surveillance footage showing defendant using the victim's credit card for unauthorized purchases at a Safeway store. On June 2, police tracked a stolen BMW to a public works parking lot area. There, police contacted defendant, who fled the scene. In the BMW, police recovered property stolen from several different victims and also located a backpack containing methamphetamine, psilocybin and drug paraphernalia. Police apprehended defendant at his residence the following day. Defendant told police he purchased the BMW from an unknown male for an ounce of methamphetamine and that a friend gave him the stolen credit cards found in the BMW.
Finally, in regard to the charging documents filed against defendant, all three contained prior felony conviction allegations. In particular, all three alleged defendant had suffered a conviction for resisting a police officer in a manner resulting in serious bodily injury to the officer, in violation of Penal Code section 148.10, an offense within the meaning of section 1170.12, subdivision (c)(1).
Further statutory references are to the Penal Code unless otherwise noted.
In December 2010, defendant filed a motion to suppress, asserting that warrantless police searches of his vehicle on December 4 and December 28, 2010, violated his Fourth Amendment rights because he did not consent to the searches and the prolonged detention in each case was unlawful. The trial court received testimony and entertained argument on defendant's suppression motion at a hearing on January 10, 2011. At the conclusion of the hearing, the trial court denied the suppression motion. The court, stating that "[t]his boils down to a judge of credibility," discounted defendant's testimony and found credible the testimony of the officers that defendant consented to the searches in question.
On January 18, 2011, defendant appeared with counsel at a change of plea hearing. The trial court advised defendant of his constitutional rights. Defendant acknowledged he understood those rights, wished to relinquish them, and that he understood a no contest plea has the same legal effect as a guilty plea. The court advised defendant of the maximum terms of imprisonment attendant to the pleas he was about to enter and defendant stated he understood them. Further, the court advised defendant he would be referred to probation on all three cases with a six year, eight month state prison top, and that the court would consider a Romero motion. Thereafter, the court found defendant waived his statutory and constitutional rights freely, knowingly and intelligently, and took his pleas. In case number SC070669A, defendant entered a plea of no contest to count 2 of the information, that on or about December 28, 2009, he possessed methamphetamine for purposes of sale, a felony in violation of Health and Safety Code section 11378. In case number SC071480A, defendant entered a plea of no contest to count 1, that on or about June 17, 2010, he attempted to evade a police officer while operating a motor vehicle, a felony in violation of Vehicle Code section 2800.2. In case number SC071634A, defendant entered a plea of no contest to count 2, that on and between June 1 and June 2, 2010, he took a BMW vehicle without the consent of the owner, in violation of Vehicle Code section 10851. Defendant also pleaded no contest to count 5, that on or about June 1, 2010, he obtained personal identifying information of another person without authorization, a felony in violation of section 530.5. As to all counts of conviction, defendant admitted the allegation that he committed the offense having suffered a conviction in August 2004 under section 148.10, an offense within the meaning of section 1170.12(c)(1) (strike offense).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Prior to sentencing defendant filed a Romero motion, seeking to strike his prior strike conviction. The People opposed the motion. At a sentencing hearing on April 14, 2011, the court denied defendant's Romero motion, noting his lengthy criminal history and that he currently stood before the court convicted of three separate felonies. Thereafter, the court sentenced defendant to the low term of 16 months on count 2 (possession of methamphetamine for sale) in case number SC070669A, doubled to 32 months on the strike conviction. In case number SC071480A, the court sentenced defendant to a consecutive term of 8 months (one third the mid-term) on count 1 (evading a police officer while driving a motor vehicle), doubled to 16 months on the strike conviction. In case number SC071634A, the court sentenced defendant to a further consecutive term of eight months (one-third the mid term) on each of counts 2 (taking vehicle without owner's consent) and 5 (unauthorized used of personal identification), each term doubled to 16 months on the strike conviction, for a total term of 32 months. The total term of imprisonment imposed by the trial court for all three cases was six years and eight months. Defendant filed a timely notice of appeal on April 19, 2011.
On July 25, 2011, upon the request of appellate counsel, the trial court issued an amended abstract of judgment, which correctly reflected the state prison sentence of six years and eight months imposed in the court's oral pronouncement of judgment. On September 6, 2011, we granted appellant's motion to augment the record on appeal to include the amended abstract of judgment.
DISCUSSION
Defendant's appeal after his no contest pleas did not raise any "certificate" issues requiring that he first submit a request for a certificate of probable cause to the trial court. (See California Rules of Court, rule 8.304(b)(1); see also People v. Mendez (1999) 19 Cal.4th 1084, 1088 [defendant who has pleaded guilty to a charge may not obtain review of " 'certificate' issues, that is, questions going to the legality of the proceedings, including the validity of his plea," unless he timely obtains a certificate of probable cause].) Rather, defendant's notice of appeal challenges the denial of his motion to suppress and the sentence imposed. We discuss these issues in turn.
In ruling on a motion to suppress, "the superior court sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences, and hence . . . on review of its ruling by appeal or writ all presumptions are drawn in favor of the factual determinations of the superior court and the appellate court must uphold the superior court's express or implied findings if they are supported by substantial evidence. [Citation.]" (People v. Laiwa (1983) 34 Cal.3d 711, 718; People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).) Whereas we exercise our independent judgment in determining whether a search or seizure was reasonable under the Fourth Amendment on the facts found by the trial court (see Glaser, supra, 11 Cal.4th at p. 362), matters of witness credibility are "the exclusive province" of the trier of fact, and we may not substitute our evaluation of a witness's credibility for that of the trial court acting in its role as fact finder, (see People v. Ochoa (1993) 6 Cal.4th 1199, 1206). Indeed, the trial court's credibility findings are binding on appeal unless "inherent improbabilities" in a witness's testimony compel their rejection. (See People v. Ennis (2010) 190 Cal.App.4th 721, 725 [stating that "[i]nherently improbable . . . means that the challenged evidence is "unbelievable per se," such that "the things testified to would not seem possible" (citation)"].) Here, the trial court stated that the issue of consent to search hinged on a credibility contest between defendant and the testifying officers, and concluded that the officers testimony in that regard was credible and defendant's was not. Because nothing in the record suggests the officers' testimony was inherently improbable, the trial court's credibility determination may not be disturbed on appeal. (See People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Ennis, supra, 190 Cal.App.4th at p. 725.)
The trial court did not explicitly rule on the other prong of defendant's motion to suppress, his assertion that he was subjected to unconstitutionally prolonged detentions. On this point, the record demonstrates that on December 4, 2009, a period of 8 to 15 minutes elapsed, during which time police stopped defendant, conducted an under the influence examination, questioned him, placed him under arrest and obtained his consent to search his vehicle. The record also demonstrates that on December 28, 2009, approximately 10 minutes elapsed from the time police contacted defendant and until he was placed under arrest following a search of his truck. Whereas a detention which is reasonable at its inception may violate the Fourth Amendment if it is unreasonably prolonged (see People v. McGaughran (1979) 25 Cal.3d 577, 585-586), nothing in this record supports a finding that the police detained defendant any longer than was required to "confirm or dispel their suspicions," (U.S. v. Sharpe (1985) 470 U.S. 675, 686).
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Regarding sentencing, the prison term of six years and eight months imposed by the trial court was lawful (see Cal. Rule of Court, rule 4.420) and in accordance with defendant's plea agreement. Nonetheless, we address the trial court's denial of defendant's Romero motion, which mandated a doubling of his sentence under the Three Strikes law.
In ruling on a Romero motion, the trial court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [spirit of the three strikes law] scheme[] in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) The Three Strikes law "establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike" unless the sentencing court concludes defendant warrants exception to the three-strikes scheme. (People v. Strong (2001) 87 Cal.App.4th 328, 337-338.) However, only under "extraordinary . . . circumstance[s]" can a defendant be "deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack." (Id. at p. 338.)
Here, the trial court thoroughly addressed the Romero factors. First, the court observed that defendant stood before the court convicted in three separate felony cases involving multiple criminal offenses. The court also noted defendant's lengthy criminal history involved not only multiple drug and theft offenses, but also involved repeat offenses of attempting to evade apprehension by the police that placed "not just property but people at risk." The court further noted that defendant had failed to demonstrate any ability to comply with conditions of probation by continuing to commit crimes while other criminal cases were pending against him. Our independent review of the record reveals no abuse of discretion in the court's denial of defendant's Romero motion. (See People v. Williams, supra, 17 Cal.4th at p. 158 [denial of Romero motion is reviewed for abuse of discretion].)
In sum, having reviewed the entire record, we have identified no arguable issues that warrant further briefing. Accordingly, having ensured appellant received adequate and effective appellate review, we affirm the trial court's judgment. (See People v. Kelly, supra, 40 Cal.4th at pp. 112-113.)
DISPOSITION
The judgment is affirmed.
Jenkins, J. We concur: McGuiness, P. J. Pollak, J.