People v. Ochoagomez CA2/1 ( 2021 )

Filed 5/24/21 P. v. Ochoagomez CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B304504
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA467555)
v.
JULIO OCHOAGOMEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Sergio C. Tapia, Judge. Affirmed.
Richard B. Lennon and Melissa L. Camacho-Cheung,
under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews and Michael J.
Wise, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Julio OchoaGomez challenges the trial court’s
denial of his motion to suppress evidence seized during a traffic
stop that ultimately resulted in OchoaGomez’s conviction for
possession of a controlled substance. OchoaGomez argues that
the police unlawfully prolonged the traffic stop beyond the time
in which a reasonably diligent officer would have completed the
mission of the stop, thereby violating his Fourth Amendment
right to be free of unreasonable seizure under Rodriguez v.
United States (2015) 575 U.S. 348 (Rodriguez). We hold that,
based on the factual findings supported by substantial evidence
in the record, the detaining officer was diligent in his efforts
to complete the mission of the traffic stop and had not yet
completed that mission at the time his police dog alerted him
to the presence of drugs in OchoaGomez’s vehicle. As such, the
court did not err in denying the motion to suppress.
OchoaGomez also challenges the court’s use of his prior
juvenile adjudication to increase his sentence under California’s
“Three Strikes” law (Pen. Code, §§ 667, subds. (b)−(i), 1170.12,
subds. (a)−(d)). He acknowledges that People v. Nguyen (2009)
46 Cal.4th 1007 (Nguyen) permits use of a juvenile adjudication
as a prior strike, but argues Nguyen is no longer controlling law,
because its reasoning has been fatally undermined by subsequent
United States and California Supreme Court decisions regarding
judicial factfinding and the Sixth Amendment right to a jury
trial. (See Mathis v. United States (2016) 579 U.S. ___ [136 S.Ct.
2243, 195 L.Ed.2d 604] (Mathis); Descamps v. United States
(2013) 570 U.S. 254 (Descamps); People v. Gallardo (2017) 4
Cal.5th 120 (Gallardo).) We disagree that these decisions are
inconsistent with Nguyen, as they address judicial factfinding on
previously unadjudicated facts, an issue implicated neither in
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Nguyen, nor in the instant appeal. As such, the trial court
did not err in its application of OchoaGomez’s prior juvenile
adjudication as a strike at sentencing.
Accordingly, we affirm.
FACTS AND PROCEEDINGS BELOW
A. Traffic Stop Resulting in OchoaGomez’s Arrest
The following facts related to the traffic stop leading to
OchoaGomez’s arrest are reflected in the police body camera
footage from the stop, as well as the detaining officer’s
uncontradicted testimony at the preliminary hearing.
At about 9:30 in the morning of April 24, 2019, California
Highway Patrol Officer Richard Cheever initiated a traffic stop
of OchoaGomez’s vehicle based on OchoaGomez following a
tractor trailer too closely and having tinted front windows,
both violations of the Vehicle Code. (See Veh. Code, §§ 21703,
26708, subdivision (a)(1).) Cheever is a K-9 handler and had his
trained police dog in the car with him. After both Cheever and
OchoaGomez exited the freeway and parked, Cheever approached
the right front passenger side door of the car. Cheever told
OchoaGomez the reason for the stop and asked for his driver’s
license, vehicle registration, and insurance. Cheever noticed
that OchoaGomez’s hands were trembling as he handed over his
documents and noticed a “strong odor of air freshener emitting
from the interior of the vehicle.” Cheever later testified that, in
his experience, most individuals have trembling hands or other
signs of nervousness at the beginning of a traffic stop, and that
“air freshener is commonly used by drug traffickers to mask the
odor of a substance that they may be transporting in the vehicle.”
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Three minutes and 44 seconds into the body camera
footage of the traffic stop, Cheever returned to his patrol car
with OchoaGomez’s documents. Approximately two minutes
later, he initiated a check of the vehicle registration. A Bell
Gardens police officer then arrived as standby, but did not
interact with OchoaGomez. Approximately a minute after
Cheever had requested the registration check, he also requested
a check on OchoaGomez’s license. Approximately a minute after
that—and approximately eight minutes and 30 seconds into the
traffic stop—Cheever also requested a check for any outstanding
warrants. Cheever later testified he requested the warrant check
because it is what he “normally [does] in a traffic stop.” While in
the car, Cheever filled out a consent to search form. He did not
write a traffic citation at that time, because he “inten[ded] to
wait for the completion of the warrant check before [he] started
writing anybody a ticket.”
Around three minutes after he requested the warrant
check—and approximately 11 minutes and 20 seconds into the
traffic stop—Cheever returned to OchoaGomez’s car, directed him
to exit, and frisked him. He then led OchoaGomez back toward
his patrol car and asked him what he was doing in Bell Gardens,
if he had any firearms, and whether he was on probation.
OchoaGomez said he had been on probation for a gun charge
when he was younger. Cheever then asked OchoaGomez if he
would consent to a search of his vehicle with the police dog.
OchoaGomez replied, “whatever . . . go ahead.” This occurred
approximately 12 minutes and 15 seconds into the stop, at which
point Cheever “was still waiting for the warrant check to return.”
Cheever then confirmed OchoaGomez could read and understand
English, and asked him to review the consent form, and stated “if
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you have any [sic] understanding you can ask me some
questions.” OchoaGomez indicated that he had read and
understood the form, but refused to sign. Cheever wrote “
‘declined to sign the consent form’ ” across the form.
Cheever then retrieved his dog from the patrol car and
began an exterior sniff of the car. He walked the dog around the
car, and the dog looked in the open right front window and sat
down. Based on the dog’s training and Cheever’s experience with
him, Cheever understood sitting to mean the dog detected the
presence of drugs. At this point—approximately 15 minutes into
the traffic stop and approximately six and a half minutes after
Cheever had asked dispatch to check for outstanding warrants—
the body camera footage does not reflect that Cheever had
received a response to the warrant check.
Cheever let the dog into the interior of the car, then
opened the trunk. Inside the trunk, Cheever found a duffel
bag, which contained twenty packages of what appeared to be
methamphetamine. Cheever ultimately arrested OchoaGomez.
The body camera footage does not reflect a response to Cheever’s
request for a warrant check.
B. Preliminary Hearing and Motion to Suppress
OchoaGomez moved to suppress all physical evidence
obtained as a result of the traffic stop, pursuant to Penal Code
section 1538.5. The court heard the motion at the preliminary
hearing, during which Cheever testified and the court watched
the body camera footage of the traffic stop. No other evidence
was offered regarding the motion to suppress.
The court denied the motion. The court found Cheever’s
testimony credible and more specifically stated it believed
Cheever’s testimony that he was “still waiting for the return of
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the warrant check” approximately 15 minutes into the traffic
stop when the police dog alerted Cheever to the presence of
drugs. The court concluded Cheever had conducted the dog
sniff within the time reasonably necessary to complete the
initial purpose of Cheever’s traffic stop, and thus that the dog
sniff had not prolonged the stop in a manner that would violate
OchoaGomez’s federal constitutional rights.
Following the preliminary hearing, OchoaGomez was
charged with possession for sale of a controlled substance in
violation of Health and Safety Code section 11378 (count 1),
and sale/offer to sell/transportation of a controlled substance in
violation of Health and Safety Code section 11379, subdivision (a)
(count 2). The information further alleged that, as to both
counts, the substance containing methamphetamine exceeded
10 kilograms within the meaning of Health and Safety Code
section 11370.4, subdivision (b)(3). The information also alleged
a juvenile adjudication (see Pen. Code, § 211) as a strike under
California’s Three Strikes law.
C. Plea Agreement and Sentencing
Pursuant to a plea agreement, OchoaGomez waived his
right to a jury trial, pleaded guilty to count 1, and admitted to
having a prior juvenile adjudication. Also pursuant to the plea
agreement, the second count in the information was dismissed.
The court sentenced appellant to a total of six years in state
prison, calculated as follows: the middle term of three years for
the single count, doubled to six years for the strike prior.
Appellant filed a timely notice of appeal based on the denial
of his motion to suppress evidence and the sentence imposed by
the trial court.
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DISCUSSION
A. Motion to Suppress
OchoaGomez first challenges the court’s denial of his
motion to suppress. In reviewing the denial of a motion to
suppress, we must accept all facts in favor of the ruling, including
all reasonable inferences and deductions, if supported by
substantial evidence. (People v. Castaneda (1995) 35 Cal.App.4th
1222, 1227.) “[T]he ‘ “reasonableness in all the circumstances
of the particular governmental invasion of a citizen’s personal
security” ’ is the guiding principle.” (People v. Grant (1990) 217
Cal.App.3d 1451, 1458.)
1. Applicable law
The Fourth Amendment to the United States Constitution
ensures the right of all “people to be secure in their persons . . .
against unreasonable searches and seizures.” (U.S. Const., 4th
Amend.) Temporary detention of individuals during the stop
of an automobile by the police constitutes a seizure of persons
within the meaning of the Fourth Amendment. (Whren v.
United States (1996) 517 U.S. 806, 809−810.) “[T]he tolerable
duration of police inquiries in the traffic-stop context is
determined by the [stop’s] ‘mission[,]’ ” which is “to address the
traffic violation that warranted the stop, [citation] and attend to
related safety concerns, [citations] . . . Authority for the seizure
thus ends when tasks tied to the traffic infraction are—or
reasonably should have been—completed.” (Rodriguez, supra,
575 U.S. at p. 354.) In Rodriguez, the United States Supreme
Court expressly identified tasks that serve the mission of a traffic
stop as follows: “Beyond determining whether to issue a traffic
ticket, an officer’s mission includes ‘ordinary inquiries incident to
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[the traffic] stop.’ [Citation.] Typically such inquiries involve
checking the driver’s license, determining whether there are
outstanding warrants against the driver, and inspecting the
automobile’s registration and proof of insurance.” (Id. at p. 355.)
The Supreme Court explained that such checks are included
in the scope of an officer’s mission in conducting a traffic stop
because they “serve the same objective as enforcement of the
traffic code: ensuring that vehicles on the road are operated
safely and responsibly,” given that, for example, “[a] ‘warrant
check makes it possible to determine whether the apparent
traffic violator is wanted for one or more previous traffic
offenses.’ ” (Ibid.) Rodriguez also ties warrant checks to
officer safety concerns during traffic stops by citing authority
it describes as “recognizing [the] officer safety justification
for criminal record and outstanding warrant checks.” (Id. at
p. 356, citing United States v. Holt (10th Cir. 2001) 264 F.3d
1215, 1221-1222.)
Under these principles, the scope or duration of a traffic
stop “ ‘become[s] unlawful if it is prolonged beyond the time
reasonably required to complete th[e] mission’ of issuing a ticket
for the [traffic] violation” leading to the stop (Rodriguez, supra,
575 U.S. at pp. 350–351), a mission that includes the tasks
of checking the driver’s license, registration, and insurance,
checking for outstanding warrants, and those minimally
burdensome measures necessary to assure the officer’s safety.
(Id. at p. 355; see People v. Vera (2018) 28 Cal.App.5th 1081,
1087−1088 (Vera) [officer conducting traffic stop “obtained
[defendant]’s identification documents from his car and
performed a warrant check, both of which were within the
mission” of the stop].)
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Rodriguez does not foreclose the police from performing
investigative efforts during a traffic stop that are unrelated to
the stop’s mission, however. (See Rodriguez, supra, 575 U.S.
at pp. 355−356.) Rather, “[a]n officer . . . may conduct certain
unrelated checks during an otherwise lawful traffic stop” as
long as the officer does “not do so in a way that prolongs the stop,
absent the reasonable suspicion ordinarily demanded to justify
detaining an individual.” (Id. at p. 355.) For example, a dog sniff
of a vehicle to detect the presence of drugs is not related to the
mission of any traffic stop, but “[d]uring the execution of a lawful
traffic stop, the police may have a trained dog sniff the driver’s
vehicle . . . without implicating the Fourth Amendment,” as long
as the traffic stop is not “ ‘prolonged’ by the dog sniff ‘beyond the
time reasonably required’ to complete the mission of the traffic
stop.” (Vera, supra, 28 Cal.App.5th at pp. 1085–1086.)
2. Cheever did not prolong the traffic stop
beyond the time reasonably necessary
to complete its mission, as Rodriguez
defines it
OchoaGomez argues that the traffic stop at issue here
exceeded the reasonable amount of time necessary for Cheever
to complete the mission of the traffic stop, because (1) Cheever
prolonged the stop beyond the amount of time reasonably
necessary to complete its mission by seeking consent to search
the vehicle and performing an external dog sniff of the vehicle,
and (2) Cheever did not diligently pursue the mission of the stop.
We disagree.
The trial court found Cheever was still waiting for the
results of the warrant check when he prepared the consent
form, when he asked OchoaGomez questions unrelated to the
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traffic stop mission, and when he had his dog sniff the outside
of the vehicle. Nothing in the record suggests otherwise; to
the contrary, the body camera footage and Cheever’s testimony,
which the court deemed credible, constitute substantial evidence
to support the court’s finding. Because, under Rodriguez,
performing a warrant check is within the proper scope of an
officer’s mission in conducting a traffic stop, Cheever did not
prolong the stop by conducting additional investigative activities
while still waiting for the results of that search to return—
even absent reasonable suspicion to separately justify those
investigative activities. (See Rodriguez, supra, 575 U.S. at p. 355;
Vera, supra, 28 Cal.App.5th at p. 1088−1089 [performing a dog
sniff of defendant’s vehicle during a traffic stop did not violate
Fourth Amendment under Rodriguez because the dog alerted
when “[t]he mission of the traffic stop was in fact not finished”
and before it “reasonably should have been” finished, italics
omitted].)
OchoaGomez argues that running warrant checks is only
sometimes within the proper scope of a traffic stop, relying on
the Supreme Court’s use of the word “typically” to introduce
the list of ancillary efforts involved in such a stop. (Rodriguez,
supra, 575 U.S. at p. 355 [“[A]n officer’s mission includes
‘ordinary inquiries incident to [the traffic] stop.’ [Citation.]
Typically such inquiries involve checking the driver’s license,
determining whether there are outstanding warrants against
the driver, and inspecting the automobile's registration and
proof of insurance,” italics added.].) Under OchoaGomez’s
interpretation, however, checking to assure a motorist has
a valid driver’s license would also only sometimes be within
the scope of a traffic stop, and—perhaps more troubling—the
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Supreme Court’s detailed discussion of a traffic stop’s mission
in Rodriguez would provide no guidance as to when this is
the case. OchoaGomez’s proposed interpretation of Rodriguez
is also inconsistent with the opinion’s clear statement that
warrant checks serve the purpose of a traffic stop (ensuring
compliance with the Vehicle Code by checking for outstanding
traffic violations), as well as its citation to the proposition that
warrant checks promote officer safety during a traffic stop.
(Id. at pp. 355−356.) We decline to adopt OchoaGomez’s forced
interpretation of Rodriguez.
In arguing to the contrary, OchoaGomez argues that
Rodriguez’s discussion of an officer needing to be diligent in
pursuing the mission of a traffic stop (Rodriguez, supra, 575 U.S.
at p. 357), “breathes new life in[to] a line of pre-Rodriguez
California cases,” which hold that all warrant checks reflect
investigative activity unrelated to the mission of a traffic stop.
(See People v. McGaughran (1979) 25 Cal.3d 577, 585−587
(McGaughran); People v. Brown (1998) 62 Cal.App.4th 493,
498 [citing McGaughran for the proposition that “investigative
activities beyond the original purpose of a traffic stop, including
warrant checks, are permissible as long as they do not prolong
the stop”]; see, e.g., People v. Gallardo (2005) 130 Cal.App.4th
234, 238 [same]; People v. Castaneda, supra, 35 Cal.App.4th
at p. 1228 [same].) But this idea is inherently inconsistent
with Rodriguez’s express conclusion that warrant checks are
“typical[ ]” components of a traffic stop. (Rodriguez, supra, at
p. 355.) Post-Rodriguez, these cases are thus of no assistance
to OchoaGomez in arguing a warrant search is not part of the
mission of a traffic stop.
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We must also consider, however, whether Cheever was
diligent in pursuing the mission of the traffic stop, such that the
stop did not last longer than the amount of time in which the
mission “reasonably should have been” completed. (Rodriguez,
supra, 575 U.S. at p. 354; see Vera, supra, 28 Cal.App.5th at
p. 1089 [that dog sniff occurred before mission of traffic stop
completed does not end Fourth Amendment inquiry under
Rodriguez].) OchoaGomez argues Cheever was not diligent,
because Cheever never even started writing a citation during
the approximately 15 minutes before the dog alerted.1 But
the court credited Cheever’s testimony that he did not want to
prepare a citation until he had confirmed whether OchoaGomez
had any outstanding warrants. We must defer to the trial
court on the credibility of this uncontradicted testimony. (See
People v. Leyba (1981) 29 Cal.3d 591, 596–597). In any event,
nothing in the record suggests Cheever’s stated reason for not
immediately writing a citation was disingenuous. OchoaGomez
does not cite any authority suggesting that, as a general rule,
waiting for the results of a warrant check before writing a
citation reflects a lack of diligence in pursuing the mission of a
traffic stop. Nor does OchoaGomez cite any authority suggesting
that the amount of time Cheever waited for the results of the
warrant check was so long that it might render his decision not
to start writing the ticket unreasonable.
1 OchoaGomez does not dispute that, once the dog alerted
Cheever to the possible presence of drugs in the vehicle, Cheever
had reasonable suspicion to justify further detention. (See Vera,
supra, 28 Cal.App.5th at p. 1089 [“[o]nce the dog alerted to the
vehicle, there was independent reasonable suspicion for [the
officer] to prolong [defendant’s] detention to search for drugs”].)
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OchoaGomez repeatedly notes that the results of the
warrant check “never produced an answer at all,” apparently
implying that this somehow renders the warrant search
pretextual. But it makes sense that law enforcement’s focus
shifted away from the warrant search when Cheever found a
large quantity of what appeared to be methamphetamine and
arrested OchoaGomez. Thus, the fact that no response to the
warrant check is reflected in the record—at least absent some
other indication that the warrant search request was pretextual
or that Cheever facilitated such lack of results—does not assist
OchoaGomez’s arguments.
Finally, the overall time of the traffic stop—approximately
15 minutes—is not, absent some other indication of delay or
improper motive, inherently too long for a diligent officer to
complete the mission of explaining a traffic violation, obtaining
an individual’s license, registration, and proof of insurance,
running checks on these documents as well as a check for
outstanding warrants, and executing a citation, all while
taking reasonable measures to maintain the officer’s safety.
3. Cheever did not exceed the permissible
scope of the traffic stop by ordering
OchoaGomez to exit the car
As noted, minimally burdensome measures that may be
necessary to assure the officer’s safety in pursuing the mission
of a traffic stop, such as requesting the individual to exit
the vehicle, are also within the scope of an officer’s mission.
(Rodriguez, supra, 575 U.S. at pp. 350–351; see Vera, supra,
28 Cal.App.5th at p. 1088.) The United States Supreme Court
has contrasted such precautions taken to complete the traffic
stop safely with “safety precautions taken in order to facilitate”
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“[o]n-scene investigation into other crimes,” noting the
latter variety “detours from th[e] mission [of the traffic stop].”
(Rodriguez, supra, at p. 356.) In Rodriguez, for example, the
officer ordered the defendant to exit his car in order to facilitate
the dog sniff the court ultimately concluded violated the Fourth
Amendment. OchoaGomez argues this case presents a similar
situation. But in Rodriguez, the Fourth Amendment violation
stemmed from the fact that these efforts investigating other
crimes (the exit order and dog sniff) prolonged the traffic stop
beyond the amount of time necessary to complete the mission
of the traffic stop (see id. at pp. 356−357); indeed, in Rodriguez,
the officer had already issued the citation when he ordered the
defendant to exit the car and performed the dog sniff. (Id. at
p. 352.) Here, by contrast, even if Cheever ordered OchoaGomez
out of the vehicle purely to facilitate the dog sniff, this occurred
before Cheever had completed the mission of the traffic stop
and within an amount of time reasonably necessary to complete
the mission of the traffic stop. (See Discussion ante, part A.2.)
It thus does not run afoul of the Fourth Amendment under
Rodriguez. (See Vera, supra, 28 Cal.App.5th at p. 1088−1089.)
B. Use of Prior Juvenile Adjudication as a Strike
at Sentencing
OchoaGomez also challenges the court’s sentencing order.
He argues that consideration of his prior juvenile adjudication
as a strike violated his right to a jury trial, because juvenile
adjudications are not made by a jury. OchoaGomez’s argument
presents a purely legal issue, which we review de novo. (See
People v. Brooks (2018) 23 Cal.App.5th 932, 941.)
The California Supreme Court in Nguyen, supra, 46 Cal.4th
1007, held that juvenile adjudications may be used as strikes
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“even though there was no right to a jury trial in the juvenile
proceeding.” (Id. at p. 1010.) The court rejected the defendant’s
claim that Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi)
barred the use of a juvenile adjudication as a strike. Apprendi
held that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” (Id. at p. 490, italics added.) In Nguyen,
the literal rule of Apprendi had not been violated, and the
defendant had waived his right (under California law) to a
jury determination on the question of whether he had suffered
the prior juvenile adjudication.2 (Nguyen, supra, 46 Cal.4th
at p. 1015.) Nevertheless, the defendant claimed—as does
OchoaGomez in the instant appeal—that “the lack of a jury-trial
right in the prior juvenile proceeding precludes all use of the
resulting adjudication to enhance the maximum sentence for his
current offense.” (Id. at p. 1016.) The California Supreme Court
disagreed, explaining that “Apprendi and its progeny concern an
adult’s right to jury findings, in the adult case, of all previously
unadjudicated facts that bear upon the maximum sentence
for the adult offense.” (Id. at p. 1024.) Since the facts of the
2 California law provides that “[w]henever, for purposes
of enhancing the sentence on current charges, the prosecution
alleges a prior conviction sustained by the defendant, and the
defendant disputes the allegation, the question whether he or she
‘has suffered’ the prior conviction must, unless a jury is waived,
be submitted to a jury in the current proceeding. (§§ 1025,
subds.(a), (b), 1158.) This jury-trial requirement would extend,
of course, to a prior juvenile adjudication included within the
Three Strikes law’s definition of a ‘prior felony conviction.’ ”
(Nguyen, supra, 46 Cal.4th at p. 1015.)
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adult defendant’s juvenile offense in Nguyen had been previously
adjudicated in the prior juvenile proceedings, the use of the
juvenile adjudication as a strike did not violate the defendant’s
Sixth Amendment rights. (Ibid.)
OchoaGomez argues that Nguyen has been fatally
undermined by the United States Supreme Court’s subsequent
decisions in Descamps, supra, 570 U.S. 254, and Mathis, supra,136 S.Ct. 2243, as well as the California Supreme Court’s
subsequent decision in Gallardo, supra, 4 Cal.5th 120.
Division Two of this court rejected these exact arguments
in People v. Romero (2019) 44 Cal.App.5th 381, 389 (Romero),
review denied Apr. 15, 2020, S260356, cert. denied sub nom.,
Romero v. California (2020) 141 S.Ct. 633. Romero explained
that Gallardo, Descamps and Mathis “do nothing to undermine
the premise of . . . Nguyen because they did not concern the
possibility of using the fact that a defendant incurred a juvenile
adjudication to enhance a defendant’s sentence for a subsequent
crime. Instead, those cases strictly prohibited factfinding by the
sentencing court beyond the fact of a prior conviction.” (Romero,
supra, at p. 389, italics added.) We agree with our colleagues in
Division Two and reject OchoaGomez’s arguments for this same
reason.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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