People v. Reyes CA2/2 ( 2013 )

Filed 10/30/13 P. v. Reyes CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B245000
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA400513)
v.
ANDRES REYES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Henry H. Hall, Judge. Affirmed as modified.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and David
Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
After the trial court denied his motion to suppress evidence, defendant Andres
Reyes pleaded guilty to the sale of heroin (Health & Saf. Code, § 11352, subd. (a))1
(count 1) and possession of heroin for sale (§ 11351) (count 2). As to both counts,
defendant admitted the allegation that he had suffered a prior narcotics conviction.
(§ 11370.2, subd. (a).)
The trial court sentenced defendant to 365 days in county jail and granted him
three years’ formal probation under various terms and conditions. Defendant was
ordered to pay a $40 court security fee (Pen. Code, § 1465.8, subd. (a)(1)), a $30 criminal
conviction assessment (Gov. Code, § 70373), and a $50 crime laboratory fee (§ 11372.5).
Defendant appeals on the ground that the trial court erred in denying his motion to
suppress evidence, since none of its cited exceptions to the warrant requirement apply in
this case. Defendant also asks this Court to conduct an independent review of the sealed
Pitchess materials.2 Respondent contends the trial court failed to impose the correct fees
and assessments.
FACTS
At the hearing on defendant’s motion to suppress evidence, Officer Phillip Chan, a
narcotics investigator for the Los Angeles Police Department (LAPD), testified that on
July 18, 2012, he was working with a team of four detectives in the area of Alpine and
Hill Streets. Officer Chan had received information approximately 10 days earlier from
an individual, who wished to remain anonymous, that “a male Hispanic in his twenties,
possibly 5’8”, 180 pounds, driving a white vehicle” was selling heroin in the area of
Alpine and Hill Streets. Officer Chan knew the name of the individual, but he had not
previously used that person as an informant.
At approximately 3:00 p.m., Officer Chan saw defendant driving a white four-door
vehicle in the area of Alpine and Hill Streets. Defendant fit the weight and age
1 All further references to statutes are to the Health and Safety Code unless stated
otherwise.
2 Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (Pitchess).
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descriptions given by the informant, although Officer Chan could not determine
defendant’s height while defendant was still seated in the car. Officer Chan and the
detectives placed defendant under surveillance.
Defendant parked on Alpine Street and got out of his car. He then spent four or
five minutes pacing back and forth on Alpine Street between Hill and Yale Streets.
Defendant did not appear to beckon to anyone on the street, and no one on the street tried
to approach the vehicle. Defendant got back in his car and drove toward Yale Street.
Officer Chan then saw defendant commit a traffic violation as he turned right onto
Yale Street from Alpine Street and failed to yield to pedestrians in the crosswalk in
violation of Vehicle Code section 21950, subdivision (a). Officer Chan requested a
marked police patrol car to stop defendant for the violation. Officers Alvarenga and
Wright responded. Within three or four minutes, Officer Chan was notified that the
officers had detained defendant on Idell Street. Officer Chan went to Idell Street and was
told by Officer Alvarenga that defendant did not possess a valid driver’s license and that
he was under arrest for violation of Vehicle Code section 12500, subdivision (a). Officer
Chan saw defendant in handcuffs at a location approximately 10 feet from his car.
Officer Chan conducted a search of defendant’s vehicle and was assisted by other
officers. The vehicle was searched because defendant was under arrest and because of
the information that Officer Chan had received from the informant.
Officer Chan saw Officer Euhara discover a small nylon bag in the air vent next to
the dashboard. Inside the nylon bag, Officer Chan saw a total of nine tightly wrapped
plastic bindles, and inside each bindle were small colored toy balloons. The balloons—
approximately 100 of them—contained heroin. Officer Kearney found $541 in
defendant’s pants pockets. The combined searches lasted 10 minutes. Defendant was on
probation with search conditions.
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DISCUSSION
I. Validity of the Search
A. Defendant’s Argument
Defendant contends the trial court improperly denied his motion to suppress
evidence of the heroin found in his car because none of the exceptions to the search
warrant requirement cited by the trial court applies in defendant’s case.
B. Proceedings Below
After Officer Chan’s testimony, defense counsel argued that defendant’s arrest for
violating Vehicle Code section 12500 was not a basis for a search of the vehicle under
Arizona v. Gant (2009) 556 U.S. 332 (Gant). Defendant was not in a situation where he
could get to his car to do anything with contraband or weapons. Moreover, there were
three or more officers detaining defendant. In addition, the car would not contain
evidence regarding the violation of Vehicle Code section 12500 (driving without a
license), and the search was therefore not justified under Gant for that reason as well.
The informant’s tip was insufficient to provide probable cause because Officer Chan did
not indicate the informant was a reliable one. There was no testimony that the informant
acquired the information from personal knowledge, and there was no corroboration from
any activity by defendant. The information was merely a generic description of an
individual, a car, and a location. There was no indication whether the informant had a
motive or stake in the situation, and there was no evidence that the individual was a
citizen informant. Defendant’s probation status was irrelevant because Officer Chan did
not know about it when he searched the car.
The prosecutor listed the facts known to Officer Chan from the informant and
Officer Chan’s observations and argued that the circumstances of the case “seem to meet
the automobile exception.” The prosecutor stated that defendant had a reduced
expectation of privacy because he had a search condition, even though Officer Chan did
not know this before the search. The prosecutor submitted on the totality of the
circumstances.
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Defense counsel responded that the information given by the informant cannot be
a bold assertion without facts supported by personal knowledge. Although a lack of
reliability can be compensated for by other corroboration, there was none in this case.
The trial court stated the matter fell in the gray area between what is evident in
“Beltran and Gant.”3 Officer Chan’s lack of knowledge of defendant’s probation
conditions precluded justification of the search on that basis. The court noted that in
Gant, the vehicle was already secure in the defendant’s yard and the defendant was
isolated. Therefore, the search of the car could not be justified by the arrest made in that
case. In this case, defendant’s car was out on the street. Since defendant was clearly
subject to custodial arrest for the Vehicle Code section 12500 violation, the search of the
vehicle probably would have been justified because the vehicle was going to be taken
into custody pursuant to impoundment procedures. The court noted that neither party had
raised this argument, but the court believed that, “based on that, the search of the vehicle
would have been justified.” As an alternative ground, the court observed that the officer
had information that someone matching defendant’s description was driving a car
matching the description of defendant’s car and selling heroin. The officers then saw
defendant engaging in somewhat furtive conduct in the area in which the heroin was
being sold. The subsequent pretext stop was permissible because it was supported by
legal cause. The search of the vehicle was supported by legal cause pursuant to the arrest
of defendant and the fact that the car was not secured in any way, which was the salient
fact in Gant. The trial court denied the motion under Penal Code section 1538.5.
3 The circumstances indicate that the trial court was referring to New York v. Belton
(1981) 453 U.S. 454 (Belton), which held that a police officer who makes a lawful
custodial arrest of an automobile’s occupant may “as a contemporaneous incident of that
arrest, search the passenger compartment of that automobile.” (Id. at p. 460.) Gant
disapproved a broad reading of Belton and held that a lawful custodial arrest supports a
search of a vehicle occupied or recently occupied by the arrestee “when the arrestee is
unsecured and within reaching distance of the passenger compartment at the time of the
search” or “when it is ‘reasonable to believe evidence relevant to the crime of arrest
might be found in the vehicle.’” (Gant, supra, 556 U.S. at p. 343.)
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Defense counsel responded that the court was assuming that the car would have
been impounded. She had information that the vehicle was not impounded and was left
at the scene. Counsel asked for permission to subpoena Officer Chan to testify to that in
a renewed motion. The court replied that counsel could take that up with the trial court,
if in fact the matter went to trial. When asked by defense counsel to make a factual
finding regarding the reliability of the informant as testified to by Officer Chan, the court
stated that there was nothing to indicate that the individual was anything other than a
citizen informant. The court noted the corroborating circumstances and reiterated that the
arrest was valid.
C. Relevant Authority
In ruling on a suppression motion under Penal Code section 1538.5, the trial court
“‘“(1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the
latter to the former to determine whether the rule of law as applied to the established facts
is or is not violated.”’” (People v. Ayala (2000) 23 Cal. 4th 225, 255.) On appeal, this
Court reviews the trial court’s factual findings under the deferential substantial evidence
standard. (Ibid.) The trial court has “the power to judge the credibility of the witnesses,
resolve any conflicts in the testimony, weigh the evidence and draw factual inferences”
for the purpose of making its factual findings. (People v. Lawler (1973) 9 Cal. 3d 156,
160.) The trial court has the power to decide “what the officer actually perceived, or
knew, or believed, and what action he took in response.” (People v. Leyba (1981) 29
Cal. 3d 591, 596.)
We review de novo the trial court’s selection of the applicable law and application
of the law to the facts. (People v. Lomax (2010) 49 Cal. 4th 530, 563.) We will affirm the
trial court’s ruling if it is correct on any theory of law applicable to the case, even if for
reasons different than those given by the trial court. (People v. McDonald (2006) 137
Cal. App. 4th 521, 529.)
Review of a suppression motion ruling is judged exclusively by federal
constitutional standards. (People v. Glaser (1995) 11 Cal. 4th 354, 363.) The Fourth
Amendment to the federal Constitution protects against warrantless searches, but there
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are a number of exceptions to the warrant requirement. One exception applies when a
police officer has probable cause to believe contraband is located in a car that has been
stopped for a traffic violation. (See Wyoming v. Houghton (1999) 526 U.S. 295, 300.)
“[A] finding of probable cause requires only a fair probability that contraband or
evidence of criminal activity will be found.” (People v. Glenos (1992) 7 Cal. App. 4th
1201, 1207, citing Illinois v. Gates (1983) 462 U.S. 213, 238-239.) Only a probability of
criminal activity is required, not a prima facie showing. (Illinois v. Gates, at p. 235.)
The probability that incriminating evidence will be found is of a practical and
nontechnical nature, and it need not be shown that the belief is more likely to be true than
false. (Texas v. Brown (1983) 460 U.S. 730, 742.)
Probable cause based on an informant’s tip is evaluated under a “totality-of-the-
circumstances” test in which the informant’s “‘veracity,’” “‘reliability,’” and “‘basis of
knowledge’” are understood as “closely intertwined issues that may usefully illuminate
the commonsense, practical question” of whether there is probable cause to believe that
contraband is in a given place. (Illinois v. Gates, supra, 462 U.S. at p. 230; see also
People v. Medina (1985) 165 Cal. App. 3d 11, 17.) An informant can provide probable
cause where there is testimony that he or she was a citizen informant (see People v.
Rooney (1985) 175 Cal. App. 3d 634, 646) or where the tip is corroborated by police
investigation and surveillance (People v. Clark (1992) 3 Cal. 4th 41, 141). Where a tip is
corroborated, “[t]he corroboration need not[] be in any particular form.” (Ibid.) “‘[T]he
authorities need only confirm the untested informant’s reliability “in essential respects”;
they need not establish every element of probable cause by independent means.’” (Ibid.)
Moreover, it is possible for an informant’s bare conclusion to be supported by secondary
information, which need not amount to probable cause, but which buttresses that
conclusion. The two in combination may provide sufficient cause for the issuance of a
search warrant. (Ibid.)
D. Motion Properly Denied
Although defendant in his reply brief faults respondent for providing only one
justification for denial of defendant’s motion, a trial court’s ruling, correct for any reason,
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may be upheld. “[I]f the action of the trial court in denying the motion to suppress was
right upon any theory of the law applicable to the case, it must be sustained regardless of
the considerations which may have moved the trial court to its conclusion. A correct
decision of the trial court must be affirmed on appeal even if it is based on erroneous
reasons.” (People v.Hobbs (1987) 192 Cal. App. 3d 959, 963; see People v. Avalos (1996)
47 Cal. App. 4th 1569, 1580.) .
Reviewing the evidence in the light most favorable to the order denying
suppression, we hold that the trial court’s ruling meets the constitutional standard of
reasonableness. (People v. Renteria (1992) 2 Cal. App. 4th 440, 442.) We believe that the
search falls within the automobile exception to the warrant requirement. (See generally
Carroll v. United States (1925) 267 U.S. 132, 147-156.) Under that exception, “police
who have probable cause to believe a lawfully stopped vehicle contains evidence of
criminal activity or contraband may conduct a warrantless search of any area of the
vehicle in which the evidence might be found. [Citations.] Such a search ‘is not
unreasonable if based on facts that would justify the issuance of a warrant, even though a
warrant has not actually been obtained.’ [Citation.] . . . ‘If probable cause justifies the
search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and
its contents that may conceal the object of the search.’ [Citations.]” (People v. Evans
(2011) 200 Cal. App. 4th 735, 753; see also United States v. Ross (1982) 456 U.S. 798,
825.) The scope of the search is defined by the object of the search and the places in
which there is probable cause to believe contraband may be found. (Ross, at p. 824.)
The probable cause standard is a “‘“fluid concept—turning on the assessment of
probabilities in particular factual contexts,”’” and is “‘incapable of precise definition.’”
(People v. Thompson (2006) 38 Cal. 4th 811, 818.) Here, the information from the
informant’s tip combined with the observations of Officer Chan and his team provided
probable cause to search the car. The informant in this case provided a detailed
description of defendant and defendant’s car, as well as of the location of the heroin
sales. Officers observed defendant and his car, both of which matched the informant’s
description. Defendant parked his car and paced the street back and forth, which Officer
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Chan recognized as activity consistent with drug sales. (See Terry v. Ohio (1968) 392
U.S. 1, 6 [the “measured pacing” of two of the suspects among the factors justifying
reasonable suspicion for a detention].) In the instant case, the pacing combined with the
informant’s tip about the drug-selling activity in that very same block by a person
matching defendant’s description and driving a car whose description matched
defendant’s was sufficient corroboration to provide probable cause. The informant was
not anonymous to Officer Chan, even though he had not used the informant in the past.
Officer Chan knew his or her name and physical description. “Neither a previous
demonstration of reliability nor subsequent corroboration is ordinarily necessary when
witnesses to or victims of criminal activities report their observations in detail to the
authorities.” (People v. Brueckner (1990) 223 Cal. App. 3d 1500, 1504.) Reliability is
further “indicated where the informer’s identity is known to the police, as the informer
exposes himself or herself to potential liability for malicious prosecution or false
reporting.” (Id. at pp. 1504-1505; see also Illinois v. Gates, supra, 462 U.S. at pp. 233-
234.)
Moreover, although the original basis of the automobile exception was the
mobility of a vehicle and the fact it could be quickly moved from the jurisdiction while a
warrant is being sought (California v. Carney (1985) 471 U.S. 386, 390), the Supreme
Court subsequently clarified that ready mobility was not the only basis for the exception.
(Id. at p. 391.) The exception is also founded on the lesser expectation of privacy one has
with respect to one’s vehicle as opposed to one’s home. (Ibid.)
Given the totality of the circumstances in this case, which are recounted in the trial
court’s remarks, as well as in the section of this opinion describing the factual
background, there was sufficient probable cause to search the automobile. Probable
cause may exist even though there is room for doubt or the facts known to the officer
would not alone be sufficient to support a conviction. (Hamilton v. City of San Diego
(1990) 217 Cal. App. 3d 838, 844.) In addition, the possibility of an innocent explanation
does not vitiate probable cause or invalidate a search or seizure. (Johnson v. Lewis
(2004) 120 Cal. App. 4th 443, 453.) Considering Officer Chan’s training and experience
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(a narcotics investigator for the LAPD with 19 years’ experience as an officer), his
observations of defendant’s behavior combined with the tip information provided a
sufficient basis for a reasonable search.
II. Pitchess Hearing
Defendant requests that this Court independently review the transcript of the
Pitchess hearing to determine if any additional discoverable materials were withheld.
The record shows that defendant’s Pitchess motion sought information from the
confidential personnel files of all of the police officers involved in his arrest and the
search of his vehicle. At the hearing on the motion, the court determined that disclosure
was appropriate as to false police reports, invention of probable cause, and false
testimony with respect to the officers involved in the traffic stop, the discovery of the
heroin, the discovery of the money, and the officer to whom an alleged confession was
made. The court set an in camera review for a later date. At the review, the court found
discoverable information and ordered the custodian of records to provide it to the
defense. The court ordered the transcript of the Pitchess review hearing sealed.
Upon a showing of good cause, a defendant has a right to discover information
from a police officer’s personnel file that is relevant to the proceedings against the
defendant. (People v. Mooc (2001) 26 Cal. 4th 1216, 1226-1227; Evid. Code, §§ 1043,
1045, subd. (a).) We review the trial court’s ruling on a motion to discover personnel
records for abuse of discretion. (See People v. Samayoa (1997) 15 Cal. 4th 795, 827.)
We conclude that the trial court properly exercised its discretion in this case. The
trial court’s findings during its review, as reflected in the sealed transcript, are sufficient
to permit appellate review of its rulings. (See People v. Prince (2007) 40 Cal. 4th 1179,
1285-1286; People v. Mooc, supra, 26 Cal.4th at pp. 1228-1230.) The transcripts of the
in camera hearings contain a number for each complaint filed against each officer, the
type of complaint, a summary of the events surrounding each complaint, and the trial
court’s ruling as to the relevance of the complaint to the issues on which discovery would
be allowed. Our independent review reveals that the trial court properly exercised its
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discretion and that no additional materials were erroneously not ordered disclosed to the
defense.
III. Fines, Fees, and Assessments
Respondent argues that this Court should modify the judgment to impose a $40
court security fee (Pen. Code, § 1465.8) and a $30 criminal conviction assessment (Gov.
Code, § 70373) for each count, or $140, rather than the current $70. Respondent also
contends the trial court failed to impose a mandatory criminal laboratory analysis fee of
$50 (§ 11372.5, subd. (a)) in count 2. The court also did not impose a state penalty
assessment of $50 (Pen. Code, § 1464), a county penalty assessment of $35 (Gov. Code,
§ 76000), a 20 percent state surcharge of $10 (Pen. Code, § 1465.7), and a state court
construction penalty of $15 (Gov. Code, § 70372, subd. (a)) for each of counts 1 and 2.
We agree with respondent. The record shows that the trial court imposed a single
court security fee of $40, a single criminal conviction assessment of $30, and one crime
laboratory drug analysis fee of $50 “plus penalty and assessments.” A trial court must
impose a court security fee and a criminal conviction assessment for each conviction,
whether or not sentence is stayed. (See People v. Castillo (2010) 182 Cal. App. 4th 1410,
1415, fn. 3.) Therefore the court security fee must be modified to $80 and the court
security fee must be modified to $60. Both counts 1 and 2 are subject to the criminal
laboratory analysis fee. (§ 11372.5.) Because the court imposed only one laboratory
analysis fee, the judgment must be modified to reflect a second fee of $50, or $100 total
in laboratory fees. (§ 11372.5, subd. (a).)
Penal Code section 1464 provided in 2012, at the time of defendant’s sentencing,
and still provides, that the trial court “shall [levy] a state penalty in the amount of ten
dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine,
penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .”
Subdivision (a) of Government Code section 76000 provided in pertinent part: “(1) . . .
there shall be levied an additional penalty in the amount of seven dollars ($7) for every
ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture
imposed and collected by the courts for criminal offenses . . . . [¶] (2) This additional
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penalty shall be collected together with and in the same manner as the amounts
established by Section 1464 of the Penal Code.” (Stats. 2010, ch. 720, § 26.) People v.
Talibdeen (2002) 27 Cal. 4th 1151, 1156-1157, held that the Penal Code section 1464 and
Government Code section 76000 penalty assessments are mandatory and that the failure
to impose such penalty assessments is the equivalent of an unauthorized sentence.
Therefore, the trial court should have imposed an additional $50 for each count under
Penal Code section 1464, and an additional $35 under Government Code section 76000
for each count.
Effective late in 2002, the Legislature enacted a state surcharge in Penal Code
section 1465.7, which provides: “(a) A state surcharge of 20 percent shall be levied on
the base fine used to calculate the state penalty assessment as specified in subdivision (a)
of Section 1464. [¶] (b) This surcharge shall be in addition to the state penalty assessed
pursuant to Section 1464 of the Penal Code and may not be included in the base fine used
to calculate the state penalty assessment as specified in subdivision (a) of Section 1464.”
The state surcharge is also mandatory. Thus, the trial court should have imposed a
surcharge of $10 in each count, the amount authorized by statute. (Pen. Code, § 1465.7,
subd. (a).) Government Code section 70372, subdivision (a) provides for a state court
construction penalty, and, as explained in People v. Voit (2011) 200 Cal. App. 4th 1353,
1375, this surcharge in Los Angeles County has an effective rate of 30 percent, or $15 in
each count. (See also People v. McCoy (2007) 156 Cal. App. 4th 1246, 1254 [the $15
calculation is specific to Los Angeles County].) Any error in the imposition of the
surcharge may be corrected whenever the error is discovered. (People v. Taylor (2004)
118 Cal. App. 4th 454, 456-457 [reviewing court imposed the Pen. Code, § 1465.7 state
surcharge on appeal because trial court failed to do so].)
We will correct the judgment to impose the assessments and the surcharge in the
amounts authorized by statute.
DISPOSITION
The judgment is modified to add the following fees and penalties: an additional
court security fee of $40 (Pen. Code, § 1465.8); an additional criminal conviction
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assessment of $30 (Gov. Code § 70373); an additional laboratory fee of $50 (§ 11372.5,
subd. (a)); a state penalty assessment of $100 ($50 each count) (Pen. Code, § 1464); a
county penalty assessment of $70 ($35 each count) (Gov. Code, § 76000); a state
surcharge of $20 ($10 each count) (Pen. Code, § 1465.7); and a state court construction
penalty of $30 ($15 each count) (Gov. Code, § 70372, subd. (a)). In all other respects,
the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
FERNS, J.*
_______________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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