People v. Gilbert, C058677 (Cal. App. 6/5/2009)

• Court: California Court of Appeals
• Writing for the Court: Hull
• Decision Date: 05 June 2009
• Docket Number: C058677
• Citation: People v. Gilbert, C058677 (Cal. App. 6/5/2009), C058677 (Cal. App. Jun 05, 2009)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. FRED WAYNE GILBERT, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. FRED WAYNE GILBERT, Defendant and Appellant.

C058677

Court of Appeals of California, Third Appellate District, Sacramento

June 5, 2009

Not to be Published

Appeal from the Super. Ct. No. 07F08173.

HULL, Acting P. J.

Defendant Fred Wayne Gilbert appeals from a judgment entered after his motion to suppress evidence was denied. Pursuant to a negotiated plea agreement, defendant pleaded no contest to possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and petty theft with a prior (Pen. Code, § 666). Defendant further admitted to having a prior narcotics conviction (Health & Saf. Code, § 11370.2, subd. (a)) and to having served five prior prison terms (Pen. Code, § 667.5, subd. (b)). In accordance with the plea agreement, the trial court dismissed the prior prison term allegations, sentenced defendant to seven years in state prison (the middle term of four years on the possession of cocaine for sale, plus three years for the prior narcotics conviction enhancement), and imposed other orders.

On appeal, defendant asserts (1) the trial court erred by not suppressing evidence secured after he was detained by police on suspicion of having stolen a bicycle light, and (2) the trial court prejudicially erred in refusing to consider defendant's fourth motion to suppress, filed by his newly appointed counsel, after defendant's three previous motions had been denied. We disagree with each contention and affirm the judgment.

FACTS AND PROCEEDINGS

The facts are taken from the evidence presented at the hearing on defendant's motion to suppress which was held concurrently with defendant's preliminary hearing.

On August 20, 2007, Officer August Johnson, a member of the bicycle patrol unit of the Sacramento Police Department, received a phone call from an off-duty probation officer named Josh Paris. Paris informed Officer Johnson that he was at the corner of 4th Street and K Street, witnessing a man pushing a bicycle eastbound through Westfield Plaza who had just unscrewed a bicycle light from the handlebars of another bicycle that was locked to a bicycle rack and then attached the light to the handlebars of the bicycle he was pushing. Paris described the man as "a male Black adult in his 40s wearing a straw hat, a white T-shirt, and short blue jeans shorts . . . [with] a purple backpack on." Officer Johnson, while on the phone with Paris, rode his patrol bicycle westbound through the mall and quickly spotted defendant, who matched the description.

Officer Johnson cut off defendant's path with his patrol bicycle and told him to stand next to the Gap store window; defendant complied. Johnson then asked defendant if he had any weapons. Defendant responded that he had "something in his backpack." As defendant started to put his hands in his front pockets, Officer Johnson told him to keep his hands out of his pockets and slid the backpack off defendant's back and placed it on the ground. Defendant was speaking rapidly and again tried to put his hands in his pockets. Believing defendant to be a potential danger to himself and others walking through the mall, Officer Johnson placed defendant in handcuffs and conducted a frisk for weapons.

As Officer Johnson patted down the outside of defendant's right front shorts pocket, he felt "a ping-pong ball size[d] object . . . [with] small pea size[d] hard objects . . . [that] rolled off each other like they were covered with some sort of plastic." Based on his training and experience, including over 200 hours of narcotics training and experience in over 50 investigations involving possession of cocaine base for sale, Officer Johnson believed the object in defendant's pocket to be cocaine base. Officer Johnson asked defendant what was in his pocket; defendant responded, "some cocaine," and explained that he had "relapsed last night." Johnson retrieved the object, a clear plastic baggie containing 21 individually wrapped pieces of cocaine base, from defendant's pocket. Officer Johnson then ran defendant's name and discovered that he was on searchable probation. A search of the remainder of defendant's belongings revealed three cell phones, a wallet containing $107, two screwdrivers, a flashlight, and an open box containing 47 sandwich baggies.

Probation Officer Paris arrived as Officer Johnson was talking to defendant. Paris confirmed that the bicycle light on defendant's bicycle was the same light that had been removed from the locked bicycle on 4th and K. After defendant was formally arrested, Officer Johnson went to the victim's bicycle and placed a Sacramento Police Department information card on the handlebars. Later in the afternoon, the owner of the bicycle, Christina Riker, called and confirmed that the light belonged to her.

DISCUSSION

I The Suppression Motion

Defendant contends the trial court erred in denying his suppression motion. Specifically, defendant claims (1) the People failed to make a Harvey-Madden showing (People v. Madden (1970) 2 Cal.3d 1017 (Madden); People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey)), (2) the detention was unlawful because Officer Johnson lacked a reasonable suspicion that defendant had committed or was about to commit a crime, (3) the frisk for weapons was unlawful because Officer Johnson lacked a reasonable suspicion that defendant was armed, and (4) removal of the cocaine base from defendant's pocket exceeded the scope of the frisk for weapons.

"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. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362; see also People v. Lindsey (2007) 148 Cal.App.4th 1390, 1395; People v. Coulombe (2000) 86 Cal.App.4th 52, 55-56.)

We will address, and ultimately reject, each of defendant's contentions in turn.

A The Harvey-Madden Claim

Citing Madden, supra, 2 Cal.3d 1017, and Harvey, supra, 156 Cal.App.2d 516, defendant asserts that because "[O]fficer Johnson based the detention solely upon information provided by [Probation Officer] Paris, the prosecution was required to produce Paris to testify as to what he observed." The law is to the contrary.

It is well-settled under California law that an officer may make an arrest "based on information and probable cause furnished by other officers." (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553 (Ramirez), citing Remers v. Superior Court (1970) 2 Cal.3d 659, 666; Madden, supra, 2 Cal.3d at p. 1021; People v. Lara (1967) 67 Cal.2d 365, 374; People v. Alcorn (1993) 15 Cal.App.4th 652, 655; People v. Poehner (1971) 16 Cal.App.3d 481, 486-487; People v. Adkins (1969) 273 Cal.App.2d 196, 198.) "These cases, however, require that when the first officer passes off information through `official channels' that leads to arrest, the officer must also show [the] basis for his probable cause. In other words, the so-called `Harvey-Madden' rule requires the basis for the first officer's probable cause must be `something other than the imagination of an officer who does not become a witness.' [Citation.]" (Ramirez, supra, 59 Cal.App.4th at p. 1553.)

However, as recently observed by the Court of Appeal, Fourth Appellate District in People v. Gomez (2004) 117 Cal.App.4th 531 (Gomez): "There is no requirement that the officer whose personal observations were relied upon for purposes of the probable cause determination actually testify to his or her observations. To the contrary, the Harvey/Madden rule merely precludes the prosecution from relying on hearsay information communicated to the arresting officer that is not sufficiently specific and fact based to be considered reliable." (Id. at p. 541, italics added.) In other words, the People must demonstrate that the information passed from one officer to another was "`"`factual rather than conclusionary,' related `specific and articulable facts,' was the product of personal observations by the informing officer, and was reliable." [Citations.]' [Citation.] Ultimately, the issue boils down to whether the latter officer's reliance on the information was reasonable. [Citation.]" (Id. at p. 540.)

In this case, we do not hesitate in finding that Officer Johnson's reliance on the information provided by Probation Officer Paris was reasonable. Officer Johnson testified that Paris informed him that he was personally witnessing a man pushing a bicycle eastbound through the mall who had just unscrewed a bicycle light from another bicycle and then attached the light to the handlebars of the bicycle he was pushing. Paris provided a detailed description of the man, whom Officer Johnson quickly located and detained. The information provided by Officer Paris was certainly factual rather than conclusionary, related specific and articulable facts, was the product of Paris's own personal observations, and was undeniably reliable. (Gomez, supra, 117 Cal.App.4th at p. 540.) Notwithstanding defendant's unsupported assertion to the contrary, the People were not required to call Paris to testify as to what he observed.

B The Detention

Defendant's claim that Officer Johnson lacked reasonable suspicion to detain him is likewise without merit.

"To justify an investigative stop or detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity." (People v. Conway (1994) 25 Cal.App.4th 385, 388, citing In re Tony C. (1978) 21 Cal.3d 888, 893; People v. Souza (1994) 9 Cal.4th 224, 230.)...