People v. Gonzalez CA2/3 ( 2015 )

Filed 5/1/15 P. v Gonzalez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B254516
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA083411)
v.
ARLENE GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Katherine Mader, Judge. Affirmed.
H. Russell Halpern for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Victoria B. Wilson and Mark E. Weber, Deputy Attorneys General, for Plaintiff
and Respondent.
_____________________
Appellant Arlene Gonzalez appeals from the judgment entered following her plea
of guilty to second degree burglary, following the denial of a suppression motion
(Pen. Code, §§ 459, 1538.5). The court suspended imposition of sentence and placed
Gonzalez on probation for three years. We affirm.
FACTUAL SUMMARY
Appellant’s May 2013 Suppression Motion and the July 2013 Preliminary Hearing
Testimony.1
1. Appellant’s Suppression Motion at the Preliminary Hearing.
In May 2013, appellant filed a Penal Code section 1538.5 suppression motion
arguing the initial stop of a minivan she was driving on March 2, 2013, violated the
Fourth Amendment. The motion was heard concurrently with appellant’s July 16, 2013
preliminary hearing.
2. Officer Barbani’s Initial Preliminary Hearing Testimony.
During appellant’s preliminary hearing, Beverly Hills Police Officer
Matthew Barbani, the sole witness at the hearing, testified as follows. On March 2, 2013,
Barbani was assigned to patrol and had been a peace officer for about six years. About
3:30 a.m., he received a radio call about a suspicious person.2 The content of the call was
“red minivan seen slowly driving through the alley, possibly looking into carports, behind
apartment buildings.” The prosecutor asked if “they” gave the address where the minivan
was last seen, and Barbani replied, “First was at 336 South Doheny, last seen driving
north, slowly driving north in the alley.”
Two to four minutes after Barbani received the call, he saw a red minivan driving
northbound, “five, ten miles per hour,” and “exiting the 200 block of Doheny and
1
The facts of the present offense are not pertinent to this appeal. It is sufficient to
observe the record reflects on March 2, 2013, appellant committed second degree
burglary in Beverly Hills.
2
The magistrate received, “for purposes of probable cause only,” Barbani’s
testimony he received a radio call about a suspicious person.
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Wetherly alley.” (Sic.) The distance between the 200 block of Doheny, and 336 South
Doheny Drive, was one block. After Barbani saw the minivan, he conducted a traffic
stop of the vehicle. Appellant was its driver. Appellant later effectively told Barbani she
was in the alley looking for laundry rooms in open carports in apartment complexes so
she could take money from the washers and dryers. Appellant also told Barbani she had
burglarized rooms and had taken money from the machines.
Barbani transported appellant to the alley and she pointed out two locations where
she believed she had committed the burglaries. The address of the first location was
260 South Doheny in Beverly Hills. Barbani testified the location was less than a block
“from the address where the caller stated the car was seen.” The address of the second
location was 320 South Doheny Drive, which Barbani testified was about a block “from
the location of the call.” Barbani testified there were auto burglaries in the general
vicinity where he stopped appellant and in the same time frame that he contacted
appellant. However, he did not know this when he stopped appellant.
Barbani also testified as follows during cross-examination. Only two minutes
passed from the time he received the call to the time he arrived and contacted appellant.
The call was a vehicle was driving slowly down an alley.
During the 30-minute period before Barbani stopped the minivan, he received no
report a burglary had occurred near the location. When Barbani saw the minivan prior to
stopping it, he had no evidence the minivan was not being driven by an apartment
building tenant. When Barbani stopped the minivan, he was going to investigate what it
was doing in the alley. He asked for appellant’s driver’s license and for other
information. This was Barbani’s investigation of suspicious activity.
3. The Parties’ Argument and the Magistrate’s Tentative Ruling.
After the prosecutor rested at the preliminary hearing, the court and parties
discussed whether the initial stop of the minivan was lawful. The magistrate tentatively
indicated as follows. Barbani saw the minivan in the general area two to four minutes
after the call, and the minivan had travelled one block. A minivan travelling five or ten
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miles per hour was consistent with someone driving slowly in the alley, but at that speed
the minivan, two to four minutes after the call, would have been blocks away, not merely
a block away; therefore, the minivan had stopped for a period in the alley, and had done
so at 3:30 a.m. This was highly suspicious and justified the stop.
Appellant argued Barbani overstated how long it took for him to arrive at the
scene after the call. The court permitted appellant to reopen cross-examination on that
issue.
4. Barbani’s Additional Preliminary Hearing Testimony.
Barbani subsequently testified as follows during cross-examination. When
Barbani received the call that there was a “suspicious vehicle,” he was driving on Doheny
Drive, north of Wilshire. He was one to three blocks away. Barbani arrived at the
location very quickly.
Appellant asked Barbani whether Barbani, by referring to two to four minutes, was
trying to testify the period was very short. Barbani replied, “That’s about the right time,
between two to four minutes.” Appellant asked if it was the right time for driving three
blocks at 35 miles per hour, and Barbani replied, “Somewhere around there. I don’t
remember specifically the exact location of where I was when the radio call was
dispatched.” Barbani travelled 35 miles per hour during whatever period it took for him
to “go four blocks” to arrive at the location. Barbani did not time how long it took him to
arrive; therefore he did not know what time he received the call, or what time it was when
he arrived at the location.
5. The Magistrate’s Ruling.
The magistrate found as follows. Barbani continued to testify it was two to four
minutes from the time he received the call to the time he arrived at the scene. Moreover,
additional time must have elapsed prior to the call, i.e., (1) the period from the time the
caller observed the events to the time the caller reported them, and (2) the period from the
time the caller reported them to the time the dispatcher broadcast the call.
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The magistrate concluded as follows. This was a close case. Nonetheless, the
caller indicated the minivan was driving slowly, “possibly looking at carports.” This was
conveyed to the dispatcher, the dispatcher broadcast the call, and Barbani received it.
Barbani arrived at the location two to four minutes later, and Barbani detained appellant
“only about one alley block away from where the reporting call came in.” (Sic.) The
only way this could have happened was if appellant “had been driving, possibly looking
at carports, stopped, and then began driving again just before the officer arrived.” At
some point, the minivan was stopped in the alley at 3:30 a.m. The combination of events
was suspicious and justified the stop. The magistrate denied appellant’s Penal Code
section 1538.5 suppression motion.
6. Appellant’s Penal Code Section 995 Motion, Renewed Penal Code Section
1538.5 Motion, and the Trial Court’s Rulings.
After the information was filed, appellant, on August 13, 2013, filed a Penal Code
section 995 motion, and a renewed Penal Code section 1538.5 motion, each on the
ground the initial stop of the minivan was an unlawful detention and her confession
should have been suppressed as the product of the unlawful detention.
At the October 4, 2013 hearing on the motions, the court indicated it had reviewed
the preliminary hearing transcript. The court emphasized this was a very close case, but
concluded the stop was lawful because it was 3:30 a.m., there had been burglaries in the
area, and there was a call about suspicious activity and someone possibly looking into
carports. The court observed the magistrate logically had inferred the minivan had been
“stopping and starting and possibly looking into carports,” which corroborated the
caller’s information. The court denied appellant’s Penal Code section 995 motion and
renewed Penal Code section 1538.5 motion.
ISSUE
Appellant claims the initial stopping of her minivan violated the Fourth and
Fourteenth Amendments.
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DISCUSSION
Appellant claims as previously indicated. We reject her claim. Respondent
concedes Barbani signaled for the minivan to stop and he conducted an investigative
detention. The remaining issue is whether the initial stop of the minivan and concomitant
detention of appellant were lawful. “ ‘ “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.” [Citation.]
Ordinary traffic stops are treated as investigatory detentions for which the officer must be
able to articulate specific facts justifying the suspicion that a crime is being committed.’
[Citation.] . . . ‘All that is required is that, on an objective basis, the stop “not be
unreasonable under the circumstances.” ’ [Citation.]” (People v. Suff (2014) 58 Cal. 4th
1013, 1053-1054 (Suff), italics added.)
In People v. Letner and Tobin (2010) 50 Cal. 4th 99, 147 (Letner), our Supreme
Court observed the reasonable suspicion standard of Terry v. Ohio (1968) 392 U.S. 1
[20 L. Ed. 2d 889] is not particularly demanding. (Letner, at p. 146.) Letner also
observed, “ ‘the determination of reasonable suspicion must be based on commonsense
judgments and inferences about human behavior.’ [Citation.]” (Ibid., italics added.)
Letner stated, “possible innocent explanations for an officer’s observations do not
preclude the conclusion that it was reasonable for the officer to suspect that criminal
activity was afoot. ‘ “Indeed, the principal function of [police] investigation is to resolve
that very ambiguity and establish whether the activity is in fact legal or illegal . . . .”
[Citation.]’ ([Citation]; see also [United States v. Arvizu (2002) 534 U.S. 266, 274
[151 L. Ed. 2d 740] [the totality-of-the-circumstances standard precludes a ‘divide-and-
conquer analysis’ under which factors that are ‘readily susceptible to an innocent
explanation [are] entitled to “no weight” ’].)” (Letner, supra, 50 Cal.4th at p. 148.)
Further, “ ‘[A]lmost without exception in evaluating alleged violations of the
Fourth Amendment the [high court] has first undertaken an objective assessment of an
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officer’s actions in light of the facts and circumstances then known to [the officer].’ ”
(People v. Sanders (2003) 31 Cal. 4th 318, 334, italics added.) “Law enforcement officers
may ‘draw on their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that “might well elude an
untrained person.” [Citations.]’ [Citation.]” (People v. Hernandez (2008) 45 Cal. 4th
295, 299.) However, “ ‘ “[T]he fact that the officer does not have the state of mind which
is hypothecated by the reasons which provide the legal justification for the officer’s
action does not invalidate the action taken as long as the circumstances, viewed
objectively, justify that action.” ’ [Citation.]” (People v. Woods (1999) 21 Cal. 4th 668,
680, italics added.)
In the present case, Barbani received a call about “a suspicious person” and a “red
minivan seen slowly driving through the alley, possibly looking into carports, behind
apartment buildings.” The caller(s) (hereafter, caller) indicated the minivan was first
seen at 336 South Doheny, and last seen slowly driving north in the alley. This
information permitted the reasonable inference the caller personally witnessed continuing
driving and, during that time, concluded the occupant of the minivan was looking into
carports behind apartment buildings.
Moreover, it may reasonably be inferred the caller reported the minivan because
the caller was unfamiliar with it, a fact which, in turn, supports the reasonable inference
the caller was familiar with vehicles that frequented the area and/or the caller was a
neighborhood resident. We note the magistrate inferred Barbani detained appellant about
a block from “where the reporting call came in.”
Further, based on the call, Barbani reasonably could have inferred an alley
adjacent to apartment carports provided an opportunity for the commission of
automobile, carport, or even residential burglaries. The alley was behind apartment
buildings; therefore, Barbani reasonably could have inferred the alley was in an isolated
location that would decrease the likelihood crimes committed there would be detected.
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The minivan was in the alley at 3:30 a.m. The reduced visibility of nighttime
decreased the likelihood crime committed in the alley, or the crime’s perpetrator, would
be detected. Barbani, for purposes of establishing probable cause, testified the call was
about a suspicious person. In response to questioning by appellant, Barbani testified
(without limitation as to the admissibility of his testimony) that he received a call about a
suspicious vehicle and he was investigating suspicious activity.
Barbani, two to four minutes after the call, arrived to see a red minivan proceeding
northbound (as the caller had indicated it was) about five to ten miles per hour, and
exiting the alley of the 200 block of Doheny and Wetherly. We agree with the magistrate
and trial court that, considering the total distance the minivan travelled and the total
period from the time the caller first observed the minivan to the time Barbani stopped it
(including the period of two to four minutes from the time of the call to the time of the
stop), a reasonable inference is the minivan stopped at least once during its slow driving
in the alley. Indeed, that inference suggested the occupant may have stopped and may
have quickly committed an automobile or carport burglary.
Based on the totality of the circumstances, including the call, and the
circumstances and corroborating events that occurred after the call but just prior to the
stop, we conclude Barbani reasonably could have suspected just prior to the stop that he
was looking at a minivan that had been engaged in what the caller had reported was, in
essence, casing activity in preparation for a burglary.
We note that, in light of Barbani’s testimony, it appears the caller was anonymous.
People v. Wells (2006) 38 Cal. 4th 1078 (Wells) is illuminating on this issue. In Wells,
our Supreme Court concluded police lawfully may stop a vehicle and detain its driver
based on an anonymous phoned-in tip that accurately describes the vehicle and its
location and relates that a possibly intoxicated person is behind the wheel, weaving all
over the roadway. Moreover, the stop is permissible even though there is no
corroboration of the criminal details of the tip. (Id. at pp. 1080-1081, 1083, 1088.)
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Wells supports the conclusion the instant stop was lawful. First, Wells observed a
report of a possibly intoxicated highway driver, weaving all over the roadway, posed a
grave and immediate risk to the public, and police would be severely criticized for failing
to stop such a driver if an accident occurred. Wells noted, “where a reasonable suspicion
of criminal activity exists, ‘the public rightfully expects a police officer to inquire into
such circumstances . . . .’ [Citation.]” (Wells, supra, 38 Cal.4th at p. 1087.) Similarly, a
report of possible casing activity in preparation for a burglary poses a serious, if not
grave, and immediate risk to residents, and police would be severely criticized for failing
to stop a vehicle containing a reported person engaging in casing activity if a burglary
subsequently occurred.
Second, Wells stated, “doubts regarding the tipster’s reliability and sincerity are
significantly reduced in the setting of a phoned-in report regarding a contemporaneous
event of reckless driving presumably viewed by the caller. Instances of harassment
presumably would be quite rare. [Citations.]” (Wells, supra, 38 Cal.4th at p. 1087.) This
is also true in connection with a phoned-in report regarding a contemporaneous event of
casing activity.
Third, Wells stated, “the relatively precise and accurate description given by the
tipster in the present case regarding the vehicle type, color, location, and direction of
travel, all confirmed by the investigating officer within minutes of receiving the report,
enhanced the reliability of the tip. [Citation.] The investigating officer’s inability to
detect any erratic driving on defendant’s part is not significant. Motorists who see a
patrol car may be able to exercise increased caution. Additionally, the officer in this case
stopped defendant’s van immediately after spotting it.” (Wells, supra, 38 Cal.4th at
p. 1088.) The above is largely true in the present case. Indeed, as discussed below, in the
present case, Barbani was able to detect evidence consistent with casing activity.
Finally, Wells observed, “[v]iewing the totality of circumstances in the present
case, we are convinced that the officer’s traffic stop was justified by reasonable suspicion
of criminal activity.” (Wells, supra, 38 Cal.4th at p. 1088.) Wells later stated, “the
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tipster’s information regarding the van and its location was sufficiently precise, and its
report of a motorist ‘weaving all over the roadway’ demanded an immediate stop to
protect both the driver and other motorists. The tip reported contemporaneous activity
and its ‘innocent’ details were fully corroborated within minutes of the report.” (Id. at
p. 1088.) The above is largely true in the present case, except the present case involves a
caller’s report of possible casing activity that demanded an immediate stop to protect
residents.
In a different respect, the instant case presents a stronger factual predicate than
that in Wells. Wells was a case in which the officer’s observations corroborated the
innocent details, but not the criminal details, of the caller’s report. On the other hand,
Barbani’s observations corroborated both. In particular, as to the criminal details of the
call, the evidence the minivan drove slowly, stopped, then drove again in the alley
partially corroborated the caller’s report of possible criminal casing activity.
We conclude Barbani pointed to specific articulable facts that, considered in light
of the totality of the circumstances, provided an objective manifestation appellant might
be involved in criminal activity, and we conclude that, on an objective basis, Barbani’s
stop of the minivan and detention of appellant were not unreasonable under the
circumstances. (See Suff, supra, 58 Cal.4th at pp. 1053-1054.) We hold Barbani’s initial
stopping of the minivan and detention of appellant did not violate the Fourth
Amendment. It follows any subsequent confession by appellant was not the product of a
Fourth Amendment violation. The trial court properly denied appellant’s Penal Code
section 995 motion and renewed Penal Code section 1538.5 motion.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, Acting P. J.
We concur:
ALDRICH, J.
EGERTON, J.

Judge of the Los Angeles Superior Court, assigned by Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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