People v. Nice

Decision Date26 May 2016
Docket NumberH041847
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Steven Andrew NICE et al., Defendants and Appellants.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Allen R. Crown, Deputy Attorney General, for Plaintiff/Respondent.

Under appointment by the Court of Appeal, Jennifer Bruno, for Defendant/Appellant Steven Andrew Nice.

Law Office of Paul Kleven, Paul Kleven, for Defendant/Appellant Carlo Antonio Delconte.

Premo

, J.

Codefendants Steven Andrew Nice and Carlo Antonio Delconte appeal their convictions on drug and weapon related charges following the denial of their motion to suppress the evidence uncovered during a traffic stop. Two police officers stopped Delconte's vehicle, in which Nice was a passenger, for failing to signal before making a right turn and for speeding. Nice and Delconte both appeared to be under the influence of a stimulant. Nice admitted upon questioning that they had used methamphetamine the night before and the drugs might be in a bag in the car. Delconte and Nice were taken into custody. A tool bag on the back passenger seat contained substances found to be methamphetamine and cocaine in baggies apparently packaged for sale; ketamine, ground Dimethyltryptamine, Viagra

, Cialis, Adderall, Oxycodone tablets; and a collapsible baton and two firearms, one of which was loaded. The police later conducted a search, pursuant to a search warrant, of property leased by Delconte, turning up additional firearms and narcotics.

The district attorney charged defendants with possession for sale of methamphetamine over 57 grams (Health & Saf.Code, § 11378

; Pen.Code, § 1203.073, subd. (b)(2) ; count 1);1 transportation of methamphetamine (Health & Saf.Code, § 11379, subd. (a) ; count 2); possession for sale of cocaine (id., § 11351; count 3); transportation of cocaine (id., § 11352, subd. (a); count 4); possession of a controlled substance (id., § 11377, subd. (b); count 5); carrying a loaded firearm in which Nice and/or Delconte was not the registered owner (§ 25850, subd. (a); count 6); possession of a firearm while under the influence (Health & Saf.Code, § 11550, subd. (e)

; counts 7 [Delconte] & 8 [Nice] ); transportation of an assault weapon (§ 30600, subd. (a); count 9); and possession of methamphetamine while armed with a loaded firearm (Health & Saf.Code, § 11370.1 ; count 10). As to counts 1 through 4, the information further alleged that Nice and Delconte were personally armed with a firearm (§ 12022, subd. (c)).

Delconte, joined by Nice, moved to suppress the evidence (§ 1538.5) arguing the officer lacked reasonable suspicion for the vehicle stop. The trial court denied the motion to suppress and defendants each entered into a negotiated plea agreement. Nice pleaded no contest to counts 1, 3, and 8 with enhancements as charged. Delconte pleaded no contest to counts 1, 3, 7, and 9 with enhancements as charged. The trial court sentenced each defendant on the plea charges and dismissed the remaining charges. As to Nice, the trial court suspended imposition of sentence and granted three years of supervised probation, including one year in county jail. As to Delconte, the trial court denied probation and imposed a term of six years in state prison, based on the midterm for count 9, and imposed concurrent terms for the other plea counts.

On appeal, defendants argue the trial court erred in denying their motion to suppress. Nice also challenges one of his probation conditions as unconstitutionally vague and overbroad.

For the reasons set forth below, we find the trial court did not err in denying the motion to suppress. We agree with Nice that certain parts of the probation condition should be modified. We will affirm the judgment as to defendant Delconte, and we will affirm the judgment as modified as to defendant Nice.

I. FACTUAL AND PROCEDURAL BACKGROUND
A. Warrantless Search and Seizure

Our summary of the facts is taken from the testimony at the preliminary hearing and suppression hearing. Between April and June 2012, San Jose police officers responded to approximately 10 calls complaining of generator noise, fumes, and parked cars on a lot in a residential neighborhood in the vicinity of Leigh Avenue and Rosswood Drive in San Jose. City of San Jose Police Officer Marc Beretta responded to two such calls on June 2, 2012. Officer Beretta spoke with Delconte, who answered the officer's knock on the gate and said he was leasing the property and the parked cars belonged to him.

The next day, June 3, 2012, Officer Beretta returned to the area on patrol with his partner. The officers were in uniform, driving a marked patrol vehicle, and were stopped on the north curb line of Rosswood Drive, in the middle of the block between Leigh Avenue and Tilden Drive. Officer Beretta noticed a white Chevy car pass “fairly quickly,” heading west toward Tilden Drive. Officer Beretta recognized the car from the service call the day before. As the white Chevy passed the police vehicle, Officer Beretta saw the driver look in the rearview mirror at him; the car then made a “quick right turn” northward on Trent Drive, the first street after Tilden, without using its turn signal.

Officer Beretta pulled his vehicle off the curb and followed, intending to make a traffic stop. As Officer Beretta turned right on Trent Drive, the white car was somewhere between halfway down the block and the end of the block. At the preliminary hearing, Officer Beretta described the car at the point that he turned onto Trent Drive as “already northbound almost getting ready to make the turn around the cul-de-sac [at the end of Trent Drive].” At the hearing on the motion to suppress, several months later, Officer Beretta described the white car at that moment as “a little more probably than halfway down the block,” estimated midblock or close to the end. Officer Beretta had not yet activated his overhead lights or siren.

Officer Beretta testified that the streets in the area run perpendicular to each other and form a rectangle or large U-turn, with sharp right turns from Trent Drive onto Troy Park Place, and from Troy Park Place onto Tilden Drive, which connects back to Rosswood Drive. Officer Beretta estimated Trent Drive to be about 1000 feet long and Troy Park Place about 500 feet long.

Officer Beretta had taken a 40–hour in-house speed radar estimation class and had probably completed at least a thousand speed estimations with or without radar during his 14 years as a police officer. His training and field experience included taking visual speed estimates while standing still, as well as while moving. He acknowledged it was more difficult, but still possible, to visually estimate the speed of a car while he was also moving. He had been taught a formula to use when estimating speeds without radar but did not use or recall the formula while following the white Chevy.

Based on the location of the white car and on Officer Beretta's own speed, he estimated the white car was moving at about 35 or 40 miles per hour. Officer Beretta had to accelerate to about 35 miles per hour in order to get close enough to activate his lights towards the end of Trent Drive, as the white car was making the turn from Troy Park Place to Tilden Drive. Officer Beretta either checked his speedometer or knew his own speed by estimation. Officer Beretta testified that the white car would have slowed for the perpendicular right turns, but he was trained to maintain a turning speed of 35 miles per hour and knew “for certain” that he was going over 25 miles per hour while making the right turns. The white car pulled over on Trent Drive, about 50 feet south of Troy Park Place. The speed limit in the residential area was 25 miles per hour.

Officer Beretta approached the vehicle and made contact with the driver, Delconte, who appeared nervous and fidgety. Officer Beretta believed Delconte was exhibiting signs of stimulant influence. He asked Delconte to exit the vehicle and performed a series of tests, confirming Delconte's pupils were dilated and internal body clock and pulse were accelerated. The front passenger, Nice, exhibited the same symptoms. Officer Beretta questioned Nice about drug use and if there were drugs in the car.2 Nice admitted that he had used methamphetamine the night before and the drugs were in a black bag or suitcase on the back passenger seat. Officer Beretta performed the same tests on Nice, confirming his symptoms. The officers placed defendants into custody.

A subsequent vehicle search revealed a black tool bag on the back passenger seat containing methamphetamine packed in individual baggies, individual baggies of cocaine, four glass vials of Ketamine

, ground Dimethyltryptamine, blister packs of Viagra tablets, and Cialis, Adderall, and Oxycodone tablets. The tool bag also contained an Intratec TEC–9 assault weapon that was not registered to either defendant, a loaded 9–millimeter pistol, a collapsible police baton, two digital scales, 19 one-hundred dollar bills, empty plastic baggies, paper cupcake cups, and a large glass pipe with methamphetamine residue on it.

Pursuant to a search warrant obtained later that day for the nearby lot leased by Delconte, Officer Beretta and other officers found a loaded .22–caliber handgun, two 12–guage shotgun rounds, ammunition, baggies with a white crystalline substance resembling methamphetamine, a box filled with glass smoking pipes, hypodermic needles, Viagra

, .357–Magnum ammunition, .380–caliber ammunition, and a digital scale. Defendants' blood samples taken after their arrest both tested positive for methamphetamine.

B. Procedural History

The Santa Clara County District Attorney filed a first amended information on June 4, 2014, charging Delconte and Nice as follows:...

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