Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. BF115119A. Sidney P. Chapin, Judge.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J. and Hill, J.
Defendant appeals from a final judgment of conviction after a jury trial. Defendant was convicted of one count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), with two prior “strike” convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and five prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). He was sentenced to a term of 25 years to life, with five consecutive one-year terms for the prior prison term enhancements. He challenges the judgment on two grounds: (1) his pretrial motion to suppress evidence was improperly denied and (2) the trial court abused its discretion in declining to strike one or both of the prior “strike” convictions, because it failed to consider all the factors relevant to that decision. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Based on surveillance and information provided by a confidential informant, probation officer, Luis Vidales, obtained a search warrant authorizing a search of the premises at 1302 Feliz Drive for heroin and other items. The search warrant also authorized a search of three individuals: Jusbert Jesse Meza, Jusbert Meza, Jr., and “Paul, HMA, 5’-8”, 160 lbs, Black hair.” An address check indicated the Mezas lived at the Feliz Drive address; there was no record any “Paul” lived there. Officer Vidales had information that “Paul” was the brother-in-law of Jusbert Meza, Sr., although that information was not included in the affidavit supporting the search warrant.
On June 14, 2006, officers executed the search warrant. When they arrived at the residence, they saw defendant leaving the yard; Officer Martinez stopped him on the curb outside the gate. Officer Martinez handcuffed defendant and patted him down for weapons, finding a small knife in a case. Defendant falsely identified himself as Tony Maldonado. The officers ran a records check on that name and it came back with nothing. Inside the house, Officer Vidales learned from the wife of Jusbert Meza, Sr. that defendant was her brother, Paul Soto. Someone told Officer Martinez, who was still outside with defendant, defendant’s true name; Officer Martinez had defendant confirm his true name, then had another officer conduct a records check. The officers learned defendant was in violation of his parole and there was an outstanding felony arrest warrant for him. Intending to arrest defendant, Officer Martinez then searched him again; a carton of cigarettes was found, containing contraband.
Officer Vidales testified that Officer Garcia saw defendant leaving the house before Officer Vidales arrived.
Defendant was charged with one count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). He was also charged with two prior strike convictions (Pen. Code, § 667, subds. (c)-(j), § 1170.12, subds. (a)-(e)) and five prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). Prior to trial, his motion to suppress evidence and to quash the search warrant was denied. Trial of the prior conviction and prior prison sentence allegations was bifurcated; jury trial of the bifurcated issues was waived. The jury convicted defendant as charged, and the trial court found true the prior convictions and prison terms. At sentencing, the trial court denied defendant’s request to strike one or both of the prior “strike” convictions and sentenced him to a term of 25 years to life, plus five consecutive one-year prior prison term enhancements.
Defendant appeals on two grounds: (1) the trial court improperly denied defendant’s motion to suppress; and (2) the trial court failed to properly exercise its discretion when it refused to dismiss either of defendant’s prior strike convictions.
DISCUSSION
I. Denial of Motion to Suppress
A. Standard of Review
“The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
B. Detention and Search
Defendant contends his detention, as he was leaving the premises the officers were about to search, was unlawful and therefore the subsequent search, in which an illegal substance was discovered on his person, was unlawful. He also contends that, if the initial detention was justified, that justification ended when defendant identified himself as Tony Maldonado and a warrant check of that name disclosed no outstanding warrants. At that point, defendant contends, he should have been released.
“The Fourth Amendment to the United States Constitution prohibits seizures of persons, including brief investigative stops, when they are ‘unreasonable.’ [Citations.] Our state Constitution has a similar provision. [Citation.] A seizure occurs whenever a police officer ‘by means of physical force or show of authority’ restrains the liberty of a person to walk away. [Citation.]” (People v. Souza (1994) 9 Cal.4th 224, 229.) Neither party disputes that defendant was “seized” at the time he was stopped, handcuffed, and patted down for weapons.
When police obtain a warrant, the warrant is presumed valid. (People v. Amador (2000) 24 Cal.4th 387, 393.) “A defendant claiming that the warrant or supporting affidavit is inaccurate or incomplete bears the burden of alleging and then proving the errors or omissions. [Citations.]” (Ibid.)
In contrast, “a warrantless search [or seizure] is presumptively unreasonable.” (People v. Williams (1999) 20 Cal.4th 119, 127.) “[T]he prosecution has the burden of proving … some justification for a warrantless search or seizure. [Citations.]” (Ibid.) “[T]he temporary detention of a person for the purpose of investigating possible criminal activity may, because it is less intrusive than an arrest, be based on ‘some objective manifestation’ that criminal activity is afoot and that the person to be stopped is engaged in that activity. [Citations.]” (People v. Souza, 9 Cal.4th at p. 230.) “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.” (Id. at p. 231.)
Defendant contends that the detention was unreasonable because, at the time defendant was initially detained, the officers did not have any articulable facts indicating that he was engaged in criminal activity, the detention was not justified as a detention of an occupant of a residence being searched pursuant to a warrant, and there is no evidence defendant was the “Paul” described in the warrant.
In Michigan v. Summers (1981) 452 U.S. 692, the Supreme Court held that an occupant of premises about to be searched pursuant to a warrant could be validly detained as he left the premises just before the search. In Summers, as police officers arrived to execute a warrant to search a house for narcotics, they observed defendant go out the front door, across the porch, and down the front steps. When officers asked him to open the front door, he said he had left his keys inside. Officers entered by other means, then brought defendant inside the house. They detained defendant while they searched the house. After finding narcotics in the basement and learning that defendant owned the house, the officers arrested him, searched his person, and discovered heroin in his pocket. (Id. at p. 693.) Defendant’s motion to suppress the heroin found in his pocket as the product of an unlawful search was granted. (Id. at p. 694.) The Supreme Court reversed. (Ibid.)
The Court considered the validity of the initial detention of defendant. The key principle of the Fourth Amendment is reasonableness; the reasonableness of a search or seizure is determined by balancing the governmental interest justifying the intrusion against the invasion the search or seizure entails. (Michigan v. Summers, supra, 452 U.S. at pp. 700-701.) In assessing the intrusion, the search warrant was important, because it meant a neutral magistrate had found probable cause to believe the law was being violated at that residence and had authorized a search there. (Id. at p. 701.) The detention was also in the occupant’s own residence, and therefore less intrusive than detention at a police station. (Id. at p. 702.)
“In assessing the justification for the detention of an occupant of premises being searched for contraband pursuant to a valid warrant, both the law enforcement interest and the nature of the ‘articulable facts’ supporting the detention are relevant.” (Michigan v. Summers, supra, 452 U.S. at p. 702.) The officers had a legitimate interest in preventing flight in the event incriminating evidence was found and in minimizing the risk of harm to the officers and others present. (Ibid.) A “search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence.” (Ibid.) “The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” (Id. at pp. 702-703.) Further, the search may be facilitated if the occupants are present, because they may open locked doors or containers in order to avoid the use of damaging force. (Id. at p. 703.)
Regarding the articulable facts supporting the detention, the Court stated the search warrant provided an objective justification for the detention and the occupant’s connection to the premises gave officers “an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant.” (Michigan v. Summers, supra, 452 U.S. at pp. 703-704.) The Court concluded: “Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” (Id. at p. 705, fns. omitted.)
In People v. Glaser (1995) 11 Cal.4th 354, the California Supreme Court applied the Summers principles to a case in which a defendant, who was entering a residence just as officers arrived with a warrant to search it, was detained. As officers approached the home of Gregory Wagenman with a search warrant on a dark and stormy evening, they saw defendant’s pickup parked in the driveway and defendant about to open the gate to the backyard. Because of the storm, when officers spoke to him, defendant could not understand and did not immediately answer. About two minutes later, defendant finally understood he was being told to lie face down on the ground; defendant obeyed and officers handcuffed his hands behind his back at gunpoint. About five minutes later, defendant was allowed to stand up and was led into the house. The court was concerned only with the validity of the initial period of detention in the driveway.
The court balanced the extent of the intrusion against the governmental interest justifying it, taking into consideration the objective facts that made the interests applicable in the circumstances of the particular detention. (People v. Glaser, supra, 11 Cal.4th at p. 365.) Although defendant was detained at gunpoint, the intrusion was brief, about two minutes. (Id. at pp. 366-367.) Defendant was not detained in a public place, but at the back gate of a private residence, apparently witnessed only by officers, reducing any stigma or embarrassment associated with the detention. (Id. at p. 367.) The detention also was incidental to a search pursuant to a warrant. (Ibid.)
The government had a dual interest: concern for the safety of officers while they executed the search warrant and an interest in identifying defendant and determining his connection with the premises. (People v. Glaser, supra, 11 Cal.4th at pp. 367-368.) It was dark and stormy, and defendant was standing in an unlit spot, so the officers did not recognize him. He was about to enter the back yard of the house to be searched; his apparent familiarity with the premises suggested he was not a chance visitor, but his connection with the house was unknown. If allowed to enter, he would come up behind the officers searching the house and outbuildings. Balancing the intrusion against the governmental interests, the court concluded detaining defendant to identify him, even using handcuffs and a gun, was reasonable under the circumstances. (Id. at p. 369.)
Defendant contended he was merely a visitor, and Summers’ holding concerning “‘occupants’” of premises being searched did not apply to him. (People v. Glaser, supra, 11 Cal.4th at p. 370.) Although the Summers decision may have applied only to occupant detentions, it did not preclude detention of nonoccupants when circumstances make such a detention reasonable. (Ibid.) At the time defendant was detained, the officers did not know whether defendant was a resident or a visitor. Defendant’s apparent familiarity with the premises and other circumstances “gave the officers grounds to suspect a connection sufficient, under all the circumstances, to justify a brief detention for the purposes of identification and protection of the officers’ safety.” (Id. at p. 371.) The court articulated a general rule:
“When, in the course of initiating a search under warrant of a private residence for illegal drugs or related items, police officers encounter on the premises a person whose identity and connection to the premises are unknown and cannot immediately be determined without detaining the person, the officers may constitutionally detain him or her for the period of time required and in the manner necessary to make those determinations and to protect the safety of all present during the detention. If the person is determined to be an occupant of the home to be searched, he or she may be detained, pursuant to Summers, for the duration of the search. [Citation.] If the person is determined not to be an occupant, further detention is proper only if justified by other specific, articulable facts connecting him or her to the criminal activity suspected to be occurring on the premises or establishing a danger to the officers if the person is released.” (People v. Glaser, supra, 11 Cal.4th at p. 374.)
The court concluded specific, articulable facts justifying a detention were present:
“Under Terry [v. Ohio (1968) 392 U.S. 1] the touchstone of reasonableness for search or seizure without probable cause is the presence of ‘specific and articulable facts’ that reasonably warrant the intrusion on personal liberty and privacy. [Citation.] The existence of a warrant to search a home for illegal drugs, the presence of an unknown person on the premises when police begin the search, and the officer’s inability to immediately determine the person’s identity and connection to the premises without effecting a detention, are specific and articulable facts that, on balance, reasonably warrant a detention limited to the time and means needed to resolve the questions of identity and occupancy and to protect the safety of those present while those questions are resolved.” (People v. Glaser, supra, 11 Cal.4th at pp. 374-375.)
This court must balance the intrusion against the justification for the detention (including the government interest and the articulable facts supporting the detention). In assessing the intrusion, the search warrant is important because it means a neutral magistrate found probable cause to believe offenses were being committed at the residence, and by the individuals (believed to be residents) identified in the warrant. The warrant authorized a search of the premises and the three individuals. Defendant was not detained at the police station, but at a private residence. Although defendant was handcuffed, the detention was brief; it took less than half an hour to identify defendant, determine he was in violation of his parole, and arrest him.
The officers had a legitimate interest in identifying defendant, determining his connection with the premises, determining whether he was one of the individuals named in the warrant, and preventing him from leaving before they had an opportunity to complete those tasks. They also had an interest in minimizing the risk of harm to themselves and any others present during the search. Although defendant was leaving the premises at the time the officers arrived to conduct the search, they had a legitimate concern that an unidentified person permitted to leave might return and place the officers in danger. As stated in Summers, “[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” (Michigan v. Summers, supra, 452 U.S. at pp. 702-703.)
“The police are not required to ignore the danger that persons possibly involved in crime, who leave the premises, may return during the search, with potentially fatal consequences for themselves or the officers.” (People v. Glaser, 11 Cal.4th at p. 373.)
The articulable facts known to the officers included the existence of a warrant to search the premises at 1302 Feliz Drive and to search Jusbert Jesse Meza, Jusbert Meza, Jr., and “Paul, HMA, 5’-8”, 160 lbs, Black hair.” The affidavit on which the warrant was based stated that, according to a confidential reliable informant, the three individuals named in the warrant resided on the premises and had sold heroin from the residence; the informant had seen “Paul” sell heroin from the premises within the past 10 days. The confidential informant made a controlled buy of heroin from Jusbert Meza, Sr. Officer Vidales obtained booking photographs of Jusbert Meza, Sr. and Jusbert Meza, Jr., and the informant confirmed they were photographs of the persons he or she knew by those names, who had sold heroin from the subject property. Although the information was not included in the affidavit supporting the search warrant, Officer Vidales also had information that “Paul” was the brother-in-law of Jusbert Meza, Sr. Officer Vidales was unable to further identify the person referred to as “Paul.”
When the officers arrived at 1302 Feliz Drive to execute the search warrant, they observed defendant leaving the yard. The officers did not know whether defendant was an occupant of the premises or not. Defendant did, however, fit the description of “Paul” in the warrant, and the confidential informant had stated “Paul” was a resident at that address. Under the circumstances, it was reasonable for the officers to briefly detain defendant while they identified him and determined his connection to the premises and persons to be searched.
Officer Martinez handcuffed defendant, pat searched him for weapons, and asked his name. Defendant identified himself as Tony Maldonado. There is no evidence he provided any reliable form of identification confirming that was his name. While Officer Martinez was busy with defendant, Officer Vidales went inside the residence and spoke with the wife of Jusbert Meza, Sr. She identified defendant as her brother, Paul Soto. Thus, he was identified as the brother-in-law of Jusbert Meza, Sr., whose name was Paul. Officer Vidales then had reason to believe defendant was the “Paul” named in the search warrant.
Upon learning that defendant’s true name was Paul Soto, Officer Martinez had defendant confirm that information. Another officer conducted a records check and learned that defendant was in violation of his parole and there was an outstanding warrant for his arrest. At that point, a second search of defendant’s person was justified by the search warrant and as an incident of his arrest on the outstanding warrant.
In determining whether a detention was reasonable, the focus is on “whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.” (People v. Celis (2004) 33 Cal.4th 667, 675.) After stopping defendant as he was leaving the premises, the officers promptly investigated to determine defendant’s identity and connection with the premises, using the means reasonably available to them – records checks and questioning of others present on the premises. The search that uncovered contraband was not conducted until after the officers had obtained facts indicating defendant was a person the officers were authorized by the warrant to search and defendant had been identified as a parolee with an outstanding arrest warrant. Under all the circumstances, the initial stop and the subsequent detention were both reasonable; the detention was not unreasonably prolonged. The motion to suppress was properly denied.
II. Sentencing Discretion
The trial court denied defendant’s request that it strike one or both of his prior “strike” offenses pursuant to Penal Code section 1385. Defendant contends that, in doing so, the trial court failed to properly exercise its discretion; he contends the court “focused its analysis almost exclusively on appellant’s prior criminality” and “overlooked the nature and circumstances of the current offense.”
Penal Code section 1385 permits a court, on its own motion and in furtherance of justice, to strike prior felony conviction allegations in cases brought under the Three Strikes law. (Pen. Code, § 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) A trial court's decision notto strike a prior serious or violent felony conviction allegation under section 1385 is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The burden is on the defendant to show that the sentencing decision was irrational or arbitrary. (Id. at p. 376.) “‘“In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.]” (Id. at pp. 376-377.)
The Three Strikes law was intended to restrict courts' discretion in sentencing repeat offenders. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 528.) Allegations of prior felony convictions may be stricken only “‘in furtherance of justice.’” This language requires consideration of both the constitutional rights of the defendant and the interests of society in the fair prosecution of crimes properly alleged. (Id. at pp. 530-531.) In determining whether to strike a prior felony conviction allegation under the Three Strikes law, the 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 [Three Strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant filed a request that the court strike his prior serious or violent felony convictions. He argued that the two prior “strike” convictions were 11 and 25 years old, and that his current offense was for possession of only 89 milligrams of cocaine. He asserted that he was a heroin addict and did not use cocaine; in his defense at trial, he denied that the cocaine was found on him and that it belonged to him. Defendant argued he would be sufficiently punished for his current offense even if the prior felony conviction allegations were stricken. At sentencing, defense counsel emphasized the age of the prior convictions, and the small amount of cocaine involved in the current offense. The prosecutor countered that, in sentencing defendant in a May 2001 case for possession of a small amount of heroin, the court struck a prior conviction, and sentenced defendant to a six-year term, instead of a term of 25 years to life; shortly after being released after serving that term, he violated his parole and committed the current offense.
In ruling on defendant’s request, the court noted that the Three Strikes law addresses recidivism, and the court must consider “all of the facts with regard to the defendant, the offense, the background.” After reviewing facts about defendant, including his substance abuse problem, and his criminal history, the trial court concluded defendant’s case did not fall outside the Three Strikes sentencing scheme but was “the type of defendant that is intended to be subjected to the strikes law as it currently stands.” The court declined to strike the prior “strike” conviction allegations.
In People v. Myers (1999) 69 Cal.App.4th 305, defendant contended the trial court abused its discretion by failing to consider all relevant factors when it declined to strike the prior “strike” conviction allegations. Defendant asserted the trial court considered only the violence and potential violence involved in the prior and current offenses. (Id. at pp. 308-309.) After noting that defendant’s sentencing memorandum addressed the circumstances of the current offense and the age and circumstances of the prior convictions, the court concluded:
“The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary. [Citation.] Thus, the fact that the court focused its explanatory comments on the violence and potential violence of appellant's crimes does not mean that it considered only that factor. Accordingly, appellant has not demonstrated that the trial court abused its discretion in denying his motion to strike prior convictions.” (People v. Myers, supra, 69 Cal.App.4th at p. 310.)
Both in his written request and in his oral argument, defendant addressed the circumstances of the prior and current offenses and his background. He stressed the minor nature of the current offense and the age of the prior “strike” convictions. The court discussed Romero, and cited the factors to be considered in making its decision, including facts relating to the offense and to the defendant - his background, character and prospects. The court discussed defendant’s prior criminal history, and noted that he “does not get the message.”
Although the court’s oral discussion may have focused on defendant’s past criminality, the court had before it all the facts defendant now contends it should have considered, and the court is presumed to have considered all the relevant factors. The court’s discussion indicates its awareness of the factors to be considered, including “all of the facts with regard to … the offense.” Nothing in the record indicates it failed or refused to consider the nature and circumstances of the current offense in reaching its decision. Consequently, defendant has not demonstrated that the court abused its discretion in denying his request to strike one or both of the prior convictions.
DISPOSITION
The judgment is affirmed.