People v. Chavarin
| Decision Date | 16 August 2016 |
| Docket Number | H041443 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ROSALIO CHAVARIN, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
It is ordered that the opinion filed herein on August 16, 2016 be modified as follows:
On page 22 delete the final paragraph immediately preceding the disposition and replace it with the following.
The rule of Estrada is inapplicable here.
There is no change in judgment. The petition for rehearing is denied.
Dated:__________
/s/_________
/s/_________
/s/_________
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS141243)
Following the denial of his motion to suppress, defendant Rosalio Chavarin pleaded no contest to a violation of former Health and Safety Code section 11377, subdivision (a), (possession of methamphetamine) pursuant to a negotiated plea agreement. The court sentenced defendant, suspended the sentence, and placed defendant on probation.
In 2014, after defendant was granted probation, the California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (the Safe Neighborhoods Act), which went into effect on November 5, 2014. (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014), text of Prop. 47; Cal. Const., art. II, § 10.) The Safe Neighborhoods Act amended Health and Safety Code section 11377. (Voter Information Guide, supra, text of Prop. 47, § 13.) Under the amended section, a violation of its subdivision (a), previously a so-called wobbler (see Stats. 2011, ch. 15, § 171, p. 325; see Pen. Code, § 17),1 generally is a misdemeanor offense except when committed by persons previouslyconvicted of certain offenses.2 Defendant represents, and the People have not disputed, that he has no disqualifying convictions that would prevent his conviction from being punished as a misdemeanor.
On appeal from the judgment of conviction, defendant challenges the court's ruling on his suppression motion. Defendant also asserts that the rule of Estrada (In re Estrada (1965) 63 Cal.2d 740 (Estrada)) requires the ameliorative provisions of the Safe Neighborhoods Act to be retroactively applied to him because the judgment was not final on the proposition's effective date.
We conclude that the trial court correctly denied defendant's motion to suppress and the Estrada rule does not apply. Accordingly, we affirm the judgment.
An information, filed July 14, 2014, charged defendant with unlawfully possessing a controlled substance (methamphetamine) on or about May 18, 2014 in violation of former Health and Safety Code section 11377, subdivision (a).
Defendant filed a renewed motion to suppress evidence pursuant to section 1538.5, subdivision (i). Defendant relied upon only the transcript of the preliminary hearing. The trial court concluded that the initial encounter was consensual, finding that defendant remained on his bike, he was not handcuffed, and he was free to discontinue the conversation and continue on his way. The court denied defendant's motion to suppress.
After the trial court denied his suppression motion, defendant pleaded no contest to possession of methamphetamine as charged (former Health & Saf. Code, § 11377, subd. (a)) in exchange for an agreed-upon disposition. The court sentenced him to an eight-month term consecutive to a four-year term imposed, execution of which was suspended, in another case (case No. SS130102A); it suspended execution of the sentence; and it placed defendant on probation under certain terms and conditions.
At approximately 4:41 p.m. on May 18, 2014, Don Hart and Robert Miller, police officers employed by the City of Salinas, were on duty in the area of 1185 Monroe Street in the City of Salinas. They were in a marked patrol vehicle, and Officer Miller was driving southbound on Monroe Street at 15 to 20 miles per hour. The officers were in uniform, and they were wearing their black tactical or raid vests. Both officers were armed and had tasers.
The officers noticed two individuals coming out of an apartment complex located at 1185 Monroe Street. A male was on a bike and a female was walking next to him. Officer Miller recognized defendant from prior contacts, and he knew from a recent BOL ("be on the lookout") that defendant was wanted. Officer Miller told Officer Hart that he recognized one of the individuals, and he pulled the vehicle alongside the curb.
Officer Hart exited the vehicle and approached defendant, who was on the immediately adjacent sidewalk. There were no additional officers or patrol vehicles in the vicinity.
Officer Hart made contact with defendant, who remained on his bicycle. Officer Hart was standing about five feet from defendant while he was speaking to him. Officer Miller got out of the vehicle and walked to the curb line; he stayed there during Officer Hart's exchange with defendant. Officer Miller had a hand pack radio with an ear piece; he conducted a records check on defendant.
The first thing Officer Hart said to defendant was "What's your name?" Defendant responded by giving Officer Hart his true name, Rosalio Chavarin. Officer also asked the woman, who was standing just to the left of defendant, her name. Officer Hart asked defendant whether he was on probation or parole. Defendant disclosed that he was on probation for possession of a firearm. After this disclosure, which Officer Hart found unsettling, Officer Hart asked defendant for permission to search him for weapons. Defendant said, "Go ahead." Officer Hart conducted a cursory pat search of defendant's outer clothing for weapons. He found no weapons.
Over their ear pieces, both officers heard a radio advisement from the Salinas Police Department's records division that defendant possibly had an outstanding felony warrant for his arrest. At this point, approximately a couple of minutes had elapsed since Officer Hart had exited his vehicle and approached defendant. Defendant was still seated on his bicycle.
Officer Hart then asked defendant and his companion to sit on the curb; defendant complied. Officer Miller sought confirmation of the possible warrant from the office of the Monterey County Sheriff. Approximately two minutes after Officer Hart had asked defendant and his companion to have a seat on the curb, the "warrants division" confirmed by radio that there was, in fact, an outstanding no-bail, felony warrant for defendant's arrest. The total time elapsing between the patrol vehicle pulling over to thecurb and the second radio confirmation was three to four minutes. It usually took one to two minutes to receive a return to a records check.
Officer Hart asked defendant, who was seated on the curb, to place both hands behind his back. Defendant complied, and Officer Hart handcuffed him.
After handcuffing defendant, Officer Hart then asked defendant to stand up, and the officer walked defendant to the patrol vehicle, where the officer conducted a search incident to arrest. Officer Hart found a small plastic baggie of a substance that he suspected was methamphetamine in defendant's rear pants pocket. It was packaged in clear plastic. The officer placed defendant in the back of the patrol vehicle.
Officer Hart handed the suspected methamphetamine to Officer Miller. Officer Miller recognized the substance as methamphetamine based on his training and experience.
A test later performed by Officer Miller yield a presumptive positive result for the presence of methamphetamine. The substance had a total net weight of one-tenth of a gram (.1 grams), which in Officer Miller's opinion constituted "a typical usable amount for an average user."
(Robey v. Superior Court (2013) 56 Cal.4th 1218, 1223.) (People v. Davis (2005) 36 Cal.4th 510, 528-529; see People v. Tully (2012) 54 Cal.4th 952, 979.)
Defendant asserts that the officers' initial contact with him constituted a detention that was not justified by reasonable suspicion of criminal activity. He contends that he was "immediately detained when the officers abruptly stopped their patrol vehicle and jumped out demanding [his] identity." Defendant further argues that the officers engaged in "a show of authority so intimidating" that it effectively communicated to him that he was not free to decline Officer Hart's requests or otherwise terminate the encounter. He maintains that the methamphetamine discovered on his person incident to arrest should have been suppressed as "fruit of the poisonous tree," i.e., the result of the allegedly unlawful detention.
The principal issue presented in this appeal is whether the encounter between the officers and defendant began as a consensual encounter or an unlawful detention.3 ...
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