People v. Parrott

• Decision Date: 04 April 2017
• Docket Number: A146642
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jackson Arnold PARROTT, Defendant and Appellant.

10 Cal.App.5th 485

216 Cal.Rptr.3d 208

The PEOPLE, Plaintiff and Respondent,

v.Jackson Arnold PARROTT, Defendant and Appellant.

A146642

Court of Appeal, First District, Division 4, California.

Filed April 4, 2017

Roberta Simon, by appointment of the Court of Appeal under the First District Appellate Project Independent Case System, Counsel for Appellant.

Kamala D. Harris, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Ronald E. Niver, Deputy Attorney General, Counsel for Respondent.

RUVOLO, P.J.

INTRODUCTION

Jackson Arnold Parrott (appellant) appeals the judgment sentencing him to five years in state prison following his guilty plea to two charges of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a) ), and his admission to two sentencing enhancements. The plea was part of a negotiated disposition of two pending criminal cases filed against him by the Humboldt County District Attorney. On appeal, appellant contends the trial court erred in denying his motion to suppress evidence on the ground that his Fourth Amendment rights were violated by an unlawful search and seizure resulting in the discovery of one of the firearms. We disagree, and affirm that ruling.

Appellant also contends he was deprived of his Sixth Amendment right to counsel at sentencing, requiring this case to be remanded to the trial court for resentencing. While we agree the record does not establish appellant properly waived his right to counsel and unequivocally invoked his right to self-representation under Faretta ,¹ we conclude the error was harmless beyond a reasonable doubt. Therefore, we affirm the trial court's judgment.

I.FACTUAL AND PROCEDURAL BACKGROUNDS

A. Case No. CR1500625

On February 9, 2015,² at approximately 8:29 p.m., two police officers were driving southbound on Pine Street in Eureka, California. As the officers approached the intersection of Pine Street and Wabash Avenue, they observed a small purple hatchback vehicle without illuminated rear or brake lights, rolling backwards toward the intersection. Not knowing if there was a driver in the vehicle, the officers positioned their patrol car behind the hatchback vehicle to keep it from rolling further down the street. Seconds later the vehicle came to a stop, appellant exited from the driver's side of the vehicle and proceeded to push it to a nearby curb.

Officer Harkness exited his patrol car and contacted appellant as he began to lift the hood of his vehicle. The officer asked if he could assist appellant with his disabled vehicle, offering a tow truck or a ride to someone who could repair the car, but appellant replied "that he didn't really need any assistance." Appellant was wearing a hooded sweatshirt, with a visibly heavy item bulging from the front pocket. As the interaction progressed, the officer noticed appellant appeared nervous and continued to touch the bulging item in the front pocket of his sweatshirt.

Eventually, Officer Harkness asked appellant to step out of the roadway and onto the sidewalk. When on the sidewalk, Harkness asked for appellant's name and date of birth. Appellant provided the information, nervously adding that he was not on probation or parole. The officers then reported appellant's name to dispatch. Appellant continued to appear nervous, answering questions rapidly and continuously, while looking from one officer to the other in "really quick, targety glances." At one point, Harkness asked appellant to refrain from reaching into the front pocket of his sweatshirt, fearing it might contain a weapon. Appellant also asked the officers if he could smoke a cigarette, and Harkness responded by stating "there was no reason that he couldn't smoke a cigarette."

After a few minutes, dispatch informed the officers that appellant's license was suspended. After learning of appellant's suspended license, Officer Harkness "took hold of" appellant's right arm and told him to put his hands behind his back. When appellant resisted, the officers took a firm grip on him to prevent him from moving or reaching into his front pocket. Appellant was once again told to place his hands behind his back. After appellant refused to cooperate a second time, the officers subdued him, placed him on his stomach and handcuffed him. Officer Soltow patsearched appellant, felt what he believed to be a gun, and reached into appellant's front sweatshirt pocket, finding a loaded handgun.

After appellant waived a preliminary hearing in Case No. CR1500625, the Humboldt County District Attorney filed an information on February 27, 2015, charging appellant with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a) ; count one) and driving without a valid driver's license (Veh. Code, § 12500, subd. (a) ; count two.) In connection with count one, the information also alleged a prior strike (Pen. Code, § 667, subds. (b) -(i) ), and a prior prison term (Pen. Code, § 667.5 ).

As we discuss more fully below, on May 26, appellant filed a motion to suppress evidence (Pen. Code § 1538.5 ). On July 1, the trial court denied that motion.

B. Case No. CR1503328

On July 17, a Eureka police officer contacted appellant, who was sitting in a vehicle located in the parking lot of a local mall. After discovering that appellant had an outstanding warrant, the officer arrested appellant, subsequently searched the area within appellant's control, and found a loaded firearm under the driver's seat.

After appellant waived a preliminary hearing in Case No. CR1503328, the Humboldt County District Attorney filed an information on August 12, charging appellant with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a) ; count one) and possession of ammunition (Pen. Code, § 30305, subd. (a)(1) ; count two). In connection with both counts, the information also alleged appellant was on bail during the commission of the offenses (Pen. Code, § 12022.1 ), and had a prior strike (Pen. Code. § 667, subds. (b) -(i) ) and a prior prison term (Pen. Code, § 667.5 ).

On September 9, the two informations were consolidated for trial purposes.

C. Change of Plea Hearing

On September 14, pursuant to a negotiated disposition, appellant pled guilty to count one in Case No. CR1500625, count one in Case No. CR1503328, and admitted to one strike prior and one prison prior. In return for the plea, it was agreed that appellant would be sentenced to five years in state prison calculated as follows: The mid-term of two years for count one in Case No. CR1500625, doubled for the admitted prior strike and one additional year based on the admitted prior prison term. A two-year term would also be imposed to run concurrent based on the guilty plea to count one in Case No. CR1503328. All other counts and enhancements were to be dismissed by the prosecution. After admonishments to and waivers by appellant, the court approved the change of plea, and the remaining counts were dismissed. Appellant was represented at the change of plea hearing by attorney Michael P. Acosta, who had been retained by appellant as of April 9.

D. Sentencing Hearing

At the time of appellant's October 7 sentencing hearing, Mr. Acosta could not be located in or around the courthouse and could not be reached by telephone. The trial court then stated, "Mr. Parrott, I just had the clerk provide you with a copy of the probation report that was received on October 1st, 2015. If you would like to have a day or two to review that, you certainly may have that. You're entitled to that. Or—," to which appellant replied, "He can be my lawyer at this point. Let's just go." The court responded, "Okay. If you would like to at this point, essentially, represent yourself for sentencing, you can do that as well. I think we all agreed what's going to happen." Appellant states, "Yeah, I'm ready. Let's rol[l]."

The court then asked, "So you're waiving Mr. Acosta's personal presence?" Appellant responded, "Yeah." The court confirmed by stating, "Yes?" and appellant reiterated, "Yeah." The court continued, "Thank you. So, Mr. Parrott, is there any reason we should not proceed with sentencing today?" and appellant replied, "No." The court stated its understanding of the agreed upon disposition and asked appellant if there was anything he would like to say before they proceeded to sentencing. Appellant answered, "No. I'm good," and the court proceeded to sentence appellant to state prison for a total of five years consistent with the terms of the negotiated disposition.

Appellant filed a timely notice of appeal on October 10.

II.DISCUSSION

A. Motion to Suppress Evidence

The standard for appellate review on a motion to suppress is well established. The appellate court reviews the trial court's findings of historical fact under the deferential substantial evidence standard, but decides the ultimate constitutional question independently. Selection of the applicable law is a mixed question of law and fact that is subject to independent review. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 284, 128 Cal.Rptr.3d 417, 256 P.3d 543 ; People v. Glaser (1995) 11 Cal.4th 354, 362, 45 Cal.Rptr.2d 425, 902 P.2d 729.)

In the present case, appellant contends the trial court erred in denying his motion to suppress evidence. He asserts that his Fourth Amendment rights were violated when officers detained him without having the requisite reasonable suspicion to believe appellant was involved in criminal activity. For this reason, appellant argues the evidence obtained as a result of the constitutional violation should be inadmissible fruit of the antecedent illegal search and seizure.

Appellant's contention requires the court to answer two questions: (1) at what point in the encounter was appellant detained, and (2) did the officers have the proper level of suspicion to justify a detention and patdown search?

The Fourth Amendment to the United...