Opinion
F060930
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. RYAN MELVIN WANDICK, Defendant and Appellant.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. BF132356A)
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J., and Detjen, J.
APPEAL from a judgment of the Superior Court of Kern County. Jerold L. Turner, Judge.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On August 6, 2010, appellant, Ryan Melvin Wandick, executed a felony advisement of rights, waiver and plea form after reaching a plea bargain. Wandick waived his constitutional rights and pled no contest to possession of cocaine for sale (Health & Saf. Code, § 11351.5, count one) and to felony participation in a criminal street gang (Pen. Code, § 186.22, subd. (a), count three). The parties stipulated to a factual basis for the plea and other allegations in the information were dismissed. Under the agreement, Wandick would be sentenced to a fixed term of three years on count one and to a concurrent sentence on count two.
Wandick entered into the plea agreement after the trial court denied his suppression motion.
Count three was an amended allegation. Although the court refers to it as count two at the change of plea hearing, the clerk's minutes, the sentencing court, and the abstract of judgment all refer to this count as count three.
On September 2, 2010, the court sentenced Wandick to prison for a stipulated term of three years on count one and to a concurrent sentence on count two of one year four months. Wandick filed a timely notice of appeal and obtained a certificate of probable cause. On appeal, Wandick contends the trial court erred in denying his suppression motion filed pursuant to Penal Code section 1538.5.
FACTS
At midnight on May 28, 2010, Officer Ryan Kroeker of the Bakersfield Police Department was with his partner. Both officers were in a marked patrol car in the area of Monterey and Inyo Streets and were wearing their full uniforms. Based on Kroeker's experience, this location has a high incidence of illegal drug and gang activity. Kroeker had investigated several offenses related to sales of cocaine base and methamphetamine. Within a 200 foot radius from where he was situated, Kroeker had investigated numerous gang-related homicides. He had also arrested numerous gang members at that intersection and at an adjacent apartment complex.
Kroeker first saw Wandick walking eastbound on the south curb line of Monterey Street. Wandick then turned to face the patrol car. After seeing the patrol car, Wandick stuffed his left hand into his left pocket and dropped his head. Wandick was at the 300 block of Monterey Street, 15 to 20 feet from the intersection with Inyo Street. At that location, Monterey Street is a one-way eastbound street with three lanes. Wandick began to walk northbound across the eastbound lanes of Monterey Street. There was no crosswalk at that location.
Kroeker believed Wandick was violating the Vehicle Code. He and his partner stopped their patrol car at the corner of Monterey and Inyo Streets. Kroeker exited the patrol car and told Wandick to stop and come back to the patrol car. Wandick began to run northbound across the lanes of traffic. As Wandick did so, he tripped and fell in the number two lane, or center, lane of traffic. There was a vehicle in the number two lane approaching their location approximately 150 yards away. Wandick was not placed in handcuffs until after he was escorted out of the roadway because a vehicle was approaching.
Kroeker arrested Wandick for jaywalking. Kroeker conducted an initial patdown search of Wandick's outer clothing for weapons and observed a bulge in his left front pants pocket where he had seen Wandick place his hand earlier. Kroeker found a packet with 3.2 grams of suspected cocaine base and $15 in currency. Wandick refused to give Kroeker his name or identification.
On cross-examination, Kroeker stated there were some people down Monterey Street on the 400 or 500 block, but Wandick was the only person in the immediate area. Kroeker further explained that when he first saw Wandick, he said, "Hey, hello," or something to that effect. Only after Wandick stepped off the curb and began to cross the street did Kroeker say, "Hey, come here." There were no electronic signal lights at the intersection of Monterey and Inyo Streets, only stop signs on Inyo Street controlling the north and southbound lanes of Inyo Street. As he was running away, Wandick fell down on his face. When Wandick was crossing the street, he was near the intersection of Monterey and Inyo Streets.
The court took Wandick's suppression motion under submission. On July 30, 2010, the court denied Wandick's motion.
DISCUSSION
Wandick contends that he was seized when the officers first contacted him as he was crossing the street and that he was legally crossing the street, not jaywalking. Wandick argues that the trial court erred in denying his suppression motion. We disagree and will affirm the trial court's ruling.
In ruling on a motion to suppress, the trial court finds the historical facts, selects the law, and applies it to determine if the law, as applied, has been violated. We review the trial court's resolution of the factual inquiry under the deferential standard of substantial evidence. The ruling by the trial court is a mixed question of law and fact subject to independent review. On appeal, we do not consider the correctness of the court's reasons for its decision, only the correctness of the ruling itself. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.)
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 appellate court reviews the objective reasonableness of the facts known to the officer and not the officer's legal opinion about those facts. (People v. Limon (1993) 17 Cal.App.4th 524, 539.) The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. The principal function of the officer's investigation is to resolve that very ambiguity and establish whether the activity is legal or illegal. (In re H.M. (2008) 167 Cal.App.4th 136, 145.)
The Fourth Amendment permits an officer to "conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot" and that the person detained is engaged in that activity. (Illinois v. Wardlow (2000) 528 U.S. 119, 123 (Wardlow); Souza, supra, 9 Cal.4th at p. 230.) Courts look to the totality of circumstances of each case in determining whether the "'detaining officers [had] a particularized and objective basis for suspecting [the detainee] of criminal activity. [Citations.]'" (Souza, supra, 9 Cal.4th at p. 230; Brown v. Texas (1979) 443 U.S. 47, 52; United States v. Arvizu (2002) 534 U.S. 266, 273.) This approach allows officers to draw on their own training and experience in deciding whether criminal activity is afoot. (United States v. Arvizu, supra, 534 U.S. at p. 273.) We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. (People v. Garry (2007) 156 Cal.App.4th 1100, 1106.)
In Wardlow, the high court recognized that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. [Citations.]" (Wardlow, supra, 528 U.S. at p. 124.) California courts have recognized that such behavior, in conjunction with other factors, can form an officer's reasonable suspicion that criminal activity is afoot. (People v. McGaughran (1979) 25 Cal.3d 577, 590; Williams v. Superior Court (1985) 168 Cal.App.3d 349, 361-362.)
In Souza, our Supreme Court found that when an officer is patrolling a high crime neighborhood late at night and two people near a parked car act evasively when the officer directs his patrol car light toward them, the officer is justified in conducting a brief, investigative detention to find out whether activity being engaged in is criminal or legal. (Souza, supra, 9 Cal.4th at pp. 240-242.)
Here, the officers found Wandick alone at midnight in a neighborhood known for illegal narcotic and gang activity. Wandick furtively placed something into a left pocket with his left hand after he saw the patrol car. When Kroeker called out to Wandick, Wandick walked off the curb. Kroeker called to Wandick to come back and Wandick started to flee. According to Kroeker, as Wandick was running, he tripped and fell on his face in the number two, or middle, lane of Monterey Street. There was a car approaching from about 150 yards away. This posed a danger to Wandick and an impediment to the oncoming driver. Kroeker and his partner had to pull Wandick out of the street. We find these facts as persuasive as those in Souza and apply its holding here. It appears that the officers harbored a reasonable suspicion that criminal activity was afoot before Wandick attempted to flee.
Among the authorities cited by Wandick's appellate counsel is People v. Perrusquia (2007) 150 Cal.App.4th 228, 230, 234-235, which affirmed the trial court's grant of a suppression motion. The officers in Perrusquia were patrolling a high crime area that had recently been plagued with robberies of convenience stores. The defendant entered the parking lot of a convenience store, parked, and crouched low in the driver's seat. The officer thought this conduct was suspicious. As the officers approached the defendant's car, they heard a fumbling and something dropping to the floor of the car with a thud. (Id. at p. 231.) A patdown search of the defendant revealed a gun in the defendant's waistband. (Id. at pp. 231-232.) The Perrusquia court noted that the facts in its case were distinguishable from those in Souza because the defendant was not acting suspiciously after seeing police officers and the defendant was in the well lighted parking lot of an open convenience store. (Id. at pp. 234-236.) We find the facts of Perrusquia inapposite to those of the instant action.
Wandick argues that he did not violate Vehicle Code section 21954, subdivision (a), because the oncoming vehicle was too far away to constitute an immediate hazard. The fact Wandick did not merely fall, but that he fell on his face and that officers had to lift him up to move him out of the street, made it unlikely, if not impossible, for Wandick to yield the right-of-way to the oncoming vehicle.
Vehicle Code section 21954, subdivision (a) provides: "Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard."
Wandick analogizes his case to People v. Ramirez (2006) 140 Cal.App.4th 849, 852-855 (Ramirez), which reversed the trial court's denial of a suppression motion. In Ramirez, the defendant was walking essentially diagonally through an intersection with a four-way stop. The only oncoming vehicle was the police car which was subject to a stop sign at the intersection, although the police officer proceeded through the intersection without stopping. The Ramirez court found the defendant had not impeded any motorist's right-of-way and that the officer could only lawfully stop someone attempting to flee as long as there was a lawful basis for a stop. (Id. at pp. 854-855.)
Here, in contrast to Ramirez, the intersection Wandick entered was controlled by stop signs for Inyo Street. There were no stop signs on Monterey Street at that intersection and there was an oncoming vehicle on Monterey Street. Contrary to Wandick's contention on appeal, this case is not factually similar to the Ramirez case. The facts here provided substantial evidence from which the trial court could reasonably conclude that Wandick created an immediate hazard for the oncoming vehicle and justified Kroeker's arrest of Wandick for jaywalking. This provided an additional basis for the officers to detain Wandick.
An ordinary traffic stop is treated as an investigatory detention, a stop pursuant to Terry v. Ohio (1968) 392 U.S. 1, 27, 30 (Terry). A Terry stop is justified only if it is based on at least a reasonable suspicion the driver, or in this case a pedestrian, has violated the Vehicle Code or some other law. (People v. Durazo (2004) 124 Cal.App.4th 728, 734-735.) When an officer detains an individual, the officer may conduct a patdown search of the person's outer clothing if the officer has an objectively reasonable suspicion that the person is armed and dangerous, regardless of whether the officer has probable cause to arrest. (Terry, supra, 392 U.S. at pp. 27, 30; People v. Lopez (2004) 119 Cal.App.4th 132, 135-136.) The test for a patdown search is whether "a reasonably prudent [officer] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger. [Citation.]" (Terry, supra, 392 U.S. at p. 27.)
Prior to the officers conducting a patdown search of Wandick, they had reasonable suspicion that criminal activity was afoot. Wandick proceeded to flee, falling in the middle of the street and committing a jaywalking violation. The officers were justified in conducting an investigatory detention and a brief patdown search under these circumstances. The trial court did not err in denying Wandick's suppression motion.
Because we find that Wandick committed a violation of Vehicle Code section 21954, subdivision (a), we do not reach the People's alternative theory that Wandick also violated Vehicle Code section 21955.
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DISPOSITION
The judgment is affirmed.