Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F04724
DAVIS, J.
Defendant Michael Shannon Wilson entered a no contest plea to two counts of unlawful possession of a deadly weapon (Pen. Code, § 12020, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possession of marijuana (Health & Saf. Code, § 11357, subd. (b)), and possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)). In addition, defendant admitted two prior prison term allegations. The court dismissed a prior strike and sentenced defendant to a stipulated term of three years. Defendant’s term was increased to five years at sentencing because he had been arrested for a new offense and failed to appear at his original sentencing hearing. (See People v. Cruz (1988) 44 Cal.3d 1247.)
On appeal, defendant contends the trial court erred in denying his motion to suppress, and certain costs were incorrectly placed in the abstract. We shall affirm and order corrections to the abstract.
Background
Around midnight on April 29, 2006, Sacramento Police Officer Balwand Jagur was dispatched to the vicinity of 20th and D Streets in response to a “suspicious call” in which a person parked in front of a closed business was unloading a U-Haul van while acting nervously. Not long after Officer Jagur’s arrival, another patrol car appeared at the scene with two more officers.
Officer Jagur observed defendant loading a bicycle into the back of a U-Haul that was parked in front of a closed business. The officer got out of his patrol car, approached, and asked defendant what he was doing. Stuttering, defendant gave no meaningful response, so Officer Jagur obtained defendant’s identification and asked for his consent to be frisked for weapons.
Defendant consented to the frisk. When asked if he had any sharp objects, defendant replied he did not. A patdown of defendant resulted in the discovery of an eight-inch knife with a fixed blade, a small amount of what appeared to be marijuana and some syringes. Officer Jagur arrested defendant. He continued his search of defendant and found a throwing star in defendant’s left rear pocket. The officer conducted an inventory search of the van, where he found a small scale on the driver’s seat and a black bag in the center console that contained a white powdery substance, additional syringes and a bag that contained a green leafy substance. In a jail search of defendant, Officer Jagur found a small Ziploc bag in defendant’s front pocket, which contained about five grams of methamphetamine.
Officer Jagur did not observe any broken glass in the area, nor did defendant have any bolt cutters or cut bicycle locks in his possession.
Defendant filed a motion to suppress all evidence seized as a result of the patdown of his person and the search of the U-Haul. He contended that the evidence was obtained as a result of a warrantless search and there was no justification excusing the lack of a warrant. The trial court denied the suppression motion, finding Officer Jagur asked defendant for his identification and for the consent to frisk almost simultaneously. The court concluded defendant was not detained before the consent; therefore, the consent was valid, and even if a detention had occurred, it was reasonable under the circumstances.
Discussion
I
Defendant contends he was subject to an unlawful detention that invalidated his consent to the patdown, and the search, which he claims was not supported by reasonable suspicion, was therefore unlawful. We disagree, finding the patdown was consensual.
“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.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
An otherwise unreasonable search is legal if it is conducted pursuant to the suspect’s consent. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [36 L.Ed.2d 854].) The consent must, however, be freely and voluntarily given. (See Bumper v. North Carolina (1968) 391 U.S. 543, 548 [20 L.Ed.2d 797].) “‘The . . . voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, “The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court’s findings--whether express or implied--must be upheld if supported by substantial evidence.”’ [Citation.]” (People v. Monterroso (2004) 34 Cal.4th 743, 758.)
“A search or seizure made pursuant to a valid consent before any illegal police conduct occurs is obviously not a product of illegal conduct. A search and seizure made pursuant to consent secured immediately following an illegal entry or arrest, however, is inextricably bound up with the illegal conduct and cannot be segregated therefrom.” (People v. Haven (1963) 59 Cal.2d 713, 719.) Defendant contends his consent was invalid because he was detained by a show of authority just before he was asked to consent to the patdown.
“A seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when, ‘taking into account all of the circumstances surrounding the encounter, the police conduct would “have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.”’ [Citations.] This test is derived from Justice Stewart’s opinion in United States v. Mendenhall[ (1980)] 446 U.S. 544, 64 L.Ed. 2d 497, 100 S.Ct. 1870 [], see California v. Hodari D.[ (1991)] 499 U.S. 621, 627-628, 113 L.Ed. 2d 690, 111 S.Ct. 1870 [], which gave several ‘[e]xamples of circumstances that might indicate a seizure, even where the person did not attempt to leave,’ including ‘the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.’ [Citation.]” (Kaupp v. Texas (2003) 538 U.S. 626, 629-630 [155 L.Ed.2d 814] (Kaupp).)
Although two other officers were present during the encounter at issue, the record indicates only Officer Jagur approached defendant. Defendant was not confronted by a “‘threatening presence of several officers’” when he gave the consent. (Kaupp, supra, 538 U.S. at p. 630.) Defendant does not contend, and the evidence does not suggest, that Officer Jagur applied any physical touching or restraint such as handcuffing or drawing a firearm, or used any language or tone of voice indicating that compliance with the request might be compelled.
Before asking for consent to the patdown, Officer Jagur asked defendant what he was doing and obtained his identification. These actions do not transform the encounter into a seizure. Law enforcement officers can approach a citizen on the street and ask questions without implicating the Fourth Amendment, whether or not the officers have reasonable suspicion the citizen was or may be involved in criminal activity, so long as the encounter is consensual. (Florida v. Bostick (1991) 501 U.S. 429, 434-435 [115 L.Ed.2d 389] (Bostick).) “Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment.” (Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County (2004) 542 U.S. 177, 185 [159 L.Ed.2d 292].)
Nor did the request for consent to a patdown transform the encounter into a seizure. By itself, a mere request for consent to search does not unduly prolong an encounter and turn it into a seizure. (Bostick, supra, 501 U.S. at pp. 434-435.)
The cases cited by defendant are readily distinguished. In People v. Castaneda (1995) 35 Cal.App.4th 1222 (Castaneda), the mere request for identification by the officer “did not--by itself--escalate the encounter to a detention.” (Id. at p. 1227.) The court concluded once defendant “submitted his identification card to the officers, a reasonable person would not have felt free to leave. And once the officers began writing the parking ticket, no one would have tried to walk away from them.” (Ibid.)
Although Officer Jagur stated he obtained defendant’s identification before he asked for his consent to the patdown, there is no evidence that Officer Jagur had defendant’s identification card when he asked for the consent. Not only did the officer in Castaneda take the suspect’s identification card, he then used it to radio the suspect’s identity for a warrant check as well as check the registration and ownership of the car. (Castaneda, supra, 35 Cal.App.4th at pp. 1227-1228.) As this was done, another officer was writing an illegal parking citation for the car. (Id. at p. 1226.) The entire incident, from the officer’s approach to the vehicle to the arrest, took about eight minutes. (Ibid.) This is far removed from defendant’s encounter, in which the court found that defendant’s identification and the request for consent were resolved almost simultaneously.
Our ruling is consistent with the trial court’s interpretation of the testimony. Although defense counsel argued Officer Jagur had defendant’s identification card when he asked for consent to frisk him, the court found “that the officer approache[d] [defendant] and he asks for his ID and his consent essentially simultaneously.” We defer to the trial court’s finding on this question of fact.
Likewise, People v. Garry (2007) 156 Cal.App.4th 1100, involved more forceful behavior from the officer than in defendant’s encounter with Officer Jagur. A detention was found after the officer “bathed defendant in light, exited his police vehicle, and, armed and in uniform, ‘briskly’ walked 35 feet in ‘two and a half, three seconds’ directly to him while questioning him about his legal status . . . .” (Id. at p. 1111.)
The third case cited by defendant, People v. Roth (1990) 219 Cal.App.3d 211, is even further removed from the instant case. In Roth, a detention was found after an officer shined a spotlight on the suspect, stopped the patrol car, two deputies exited, and the officer commanded the suspect to approach so that he could speak with him. (Id. at p. 215 & fn. 3.)
Considering the totality of the circumstances, we are satisfied that nothing Officer Jagur did or said would have made a reasonable person feel that he or she could not terminate the encounter. Because he was not unlawfully detained, defendant’s consent was valid.
Consequently, the trial court properly concluded that there was no detention and the patdown was legal. It is not necessary to consider defendant’s contention that the detention was not reasonable under the circumstances.
II
The abstract of judgment stated that defendant is to pay $702 for the “cost of investigation and presentence report” and “$25 per test for urinalysis testing.” There is no mention of either cost in the minutes or when the court pronounced sentence. These costs are mentioned, without any supporting authority, in the probation report.
Defendant contends the reference to these costs in the abstract is a clerical error that must be corrected. The Attorney General replies the costs are authorized by Penal Code section 1203.1b and the case must be remanded to allow the court to make the necessary findings under that provision. We agree with defendant.
A convicted defendant is required to pay the costs of “any preplea or presentence report” even if he or she is not granted probation or a conditional sentence. (Pen. Code, § 1203.1b, subd. (a).) Imposition of the cost is conditioned on a defendant’s ability to pay. (Ibid.) If the court finds a defendant is unable to pay and the probation department has made a contrary determination, the court must state on the record the reasons for its finding. (Pen. Code, § 1203.1b, subd. (b)(4).)
“‘The general rule is that a trial court is presumed to have been aware of and followed the applicable law.’” (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.) When a court omits any reference to a fee or cost that is mandatory unless it finds a defendant unable to pay, we presume the court determined that the defendant was, in fact, unable to pay. (Ibid.) Since the probation report, which stated defendant was unemployed with no income, does not indicate defendant was able to pay the costs, the court did not have to place its findings on the record.
The pronouncement of judgment is a judicial function, while entry into the minutes and abstract of judgment is a clerical function; thus, any inconsistency is presumed to be clerical error. (People v. Mesa (1975) 14 Cal.3d 466, 471.) We conclude the mention of these costs in the abstract is a clerical error and shall order the court to prepare an amended abstract correcting it.
We also note that the abstract of judgment refer to a $25 per-test charge for urinalysis. While section 1203.1ab authorizes the recovery of costs associated with drug testing while on probation, since defendant was not granted probation, he could not be ordered to pay this nonexistent cost.
Disposition
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment omitting the $702 for the cost of investigation and the presentence report and the $25 per-test cost for urinalysis testing, and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J., MORRISON, J.