Filed 7/8/13 P. v. Gonzalez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038070
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1114392)

         v.

TONY ADAM GONZALEZ,

         Defendant and Appellant.



         After the trial court denied his motion to suppress (Pen. Code, § 1538.5)1,
defendant Tony Adam Gonzalez pleaded no contest to possession of a firearm by a felon
(former § 12021, subd. (a)(1)) and admitted having served three prior prison terms
(§ 667.5, subd. (b)). The trial court struck the prior prison term allegations and sentenced
defendant to a 16-month prison term.
         On appeal, defendant contends: (1) the trial court erred by denying his motion to
suppress; (2) trial counsel was ineffective for failing to argue meritorious grounds for the
motion to suppress; and (3) the trial court erred by imposing a booking fee pursuant to
Government Code section 29550.1 without finding that he had the ability to pay.
         We will affirm the judgment.



         1
             All further statutory references are to the Penal Code unless otherwise indicated.
                                    BACKGROUND
       A.      Evidence Presented at the Motion to Suppress
       At 6:08 p.m. on August 28, 2011, San Jose Police Officer Allan delaCruz was on
patrol in an area of San Jose known to be a gang neighborhood.
       Defendant was standing next to a red car. Officer delaCruz pulled up next to
defendant, rolled down his window, and asked if defendant knew about a recent
homicide. Officer delaCruz noticed that defendant had four dots tattooed on his hand; he
knew that this was a symbol of the Norteño gang. He also noticed that defendant wore
his hair in a ponytail and that defendant was dirty and unkempt.
       Officer delaCruz got out of his car to speak further with defendant. He parked his
car within 10 feet of defendant but did not block defendant with the car. Officer
delaCruz did not draw a weapon or shine a flashlight on defendant, and he walked
slowly. He asked defendant “what he was up to.” Defendant replied that he was getting
water for his dog.
       Officer delaCruz asked defendant “if he had any ID.” Defendant said he did, then
walked around to the passenger side of the car. He opened the passenger door and began
reaching into the car. Officer delaCruz told defendant he did not need to get his wallet,
saying “come out of the car.” Officer delaCruz was concerned that defendant could be
“reach[ing] for a weapon.”
       Defendant ignored the officer and continued reaching into the car with his right
hand. His left hand began to move toward his waistband area, where it is common for
people to conceal weapons. Officer delaCruz again told defendant to “come out of the
car.” He began to walk toward defendant, and he repeated the same command “several
more times.”
       As Officer delaCruz got closer, defendant came out of the car and walked toward
the rear of the car. Defendant again reached toward his waistband. Officer delaCruz
yelled for defendant to “stop reaching for the waistband,” but defendant continued to do

                                             2
so. Defendant also turned around and bent down, reaching for a spare tire that was on the
ground. At that point, Officer delaCruz grabbed defendant‟s arm and walked him toward
the patrol car. He asked what defendant was reaching for. Defendant said a “toy gun.”
Officer delaCruz lifted defendant‟s shirt and found a loaded revolver. Defendant had a
box of .38-caliber ammunition on his person.
       A computer assisted dispatch (CAD) report documenting the communication
between Officer delaCruz and dispatch showed that Officer delaCruz first contacted
dispatch at 6:08 p.m. At that time, he informed dispatch of his location and said he was
making a pedestrian stop. According to Officer delaCruz, this call was made after he
had already handcuffed defendant. He called again to run defendant‟s identification at
6:09 p.m., one minute and 37 seconds after the first call.
       B.     Charges, Plea, and Sentencing
       Defendant was charged, by information, with possession of a firearm by a felon
(former § 12021, subd. (a)(1)), possession of ammunition by a prohibited person
(former § 12316, subd. (b)(1)), carrying a loaded firearm by a felon (former § 12031,
subd. (a)(1)), and carrying a concealed firearm by a felon (former § 12025, subd. (a)(2)).
The information alleged that defendant had served three prior prison terms. (§ 667.5,
subd. (b).)
       After his motion to suppress was denied, defendant pleaded no contest to
possession of a firearm by a felon (former § 12021, subd. (a)(1)) and admitted having
served three prior prison terms (§ 667.5, subd. (b)). The remaining counts were
dismissed.




                                             3
       At the sentencing hearing, the trial court imposed the low term of 16 months and
struck the prior prison term allegations. It imposed various fees and fines, including a
$129.75 criminal justice administration fee.2 (Gov. Code, § 29550.1.)

                                        DISCUSSION
       A.       Denial of Motion to Suppress
       Defendant contends the trial court erred by denying his motion to suppress. He
contends that he was detained when Officer delaCruz first ordered him to “come out of
the car.” Alternatively, defendant asserts that he was detained when he came out of the
car in response to the officer‟s repeated orders. In either case, he contends his detention
was not reasonable under the Fourth Amendment because there were no “specific
articulable facts that, considered in light of the totality of the circumstances, provide[d]
some objective manifestation that [defendant might] be involved in criminal activity.”
(People v. Souza (1994) 9 Cal.4th 224, 231 (Souza).) To the extent trial counsel did not
make these specific arguments below, defendant contends he received ineffective
assistance of counsel.
                1.    Proceedings Below
       Defendant‟s written motion to suppress contained a summary of the facts, an
allegation that he was searched without a warrant, and an assertion that it was the
prosecution‟s burden to justify the warrantless search. (See People v. Williams (1999) 20
Cal.4th 119, 130 [“when the basis of a motion to suppress is a warrantless search or
seizure, the requisite specificity is generally satisfied, in the first instance, if defendants
simply assert the absence of a warrant and make a prima facie showing to support that
assertion”].)



       2
        The criminal justice administration fee is also known as a “booking fee.” (See
People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399.) We will use both terms
interchangeably.

                                                4
       In her written opposition, the prosecutor argued that Officer delaCruz‟s initial
contact with defendant was consensual. She argued that the encounter did not become a
detention when the officer began telling defendant to step out of the car, because
defendant did not actually submit to the officer‟s assertion of authority. (See California
v. Hodari D. (1991) 499 U.S. 621, 628 (Hodari D.).) The prosecutor argued that
defendant was detained when the officer “took control of his arms,” and that there was
reasonable suspicion for a weapons search of defendant‟s person at that point.
       At the hearing on the motion to suppress, defendant argued that Officer delaCruz‟s
account of the events did not “make sense.” Trial counsel asserted that Officer delaCruz
must have made the first call to dispatch before approaching defendant. He argued that
the entire event could not have occurred within the short amount of time between the two
calls to dispatch.
       The prosecutor argued that the incident could have occurred in less than a minute
and a half. She argued that there was reasonable suspicion to search defendant because
of his furtive movements, gang tattoo, and the fact that he was in a high crime area.
       The trial court noted that defendant‟s argument depended on discounting the
officer‟s testimony, and it found there was no reason to do so. The trial court found that
the incident could have occurred within a short amount of time, and that Officer delaCruz
had “a very good reason to have concerns for his safety” when defendant reached into the
car. The trial court further found that “any reasonable police officer would have had a
suspicion that criminal activity was afoot the moment the defendant refused to stop
reaching into the car, and then walked around the back of the car.”
              2.     Standard of Review
       “In ruling on a motion to suppress, the trial court must find the historical facts,
select the rule of law, and apply it to the facts in order to determine whether the law as
applied has been violated. [Citation.] We review the court‟s resolution of the factual
inquiry under the deferential substantial evidence standard. The ruling on whether the

                                              5
applicable law applies to the facts is a mixed question of law and fact that is subject to
independent review. [Citation.]” (People v. Ramos (2004) 34 Cal.4th 494, 505.)
              3.     Analysis
       “The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures of persons, including unreasonable investigative stops. [Citations.]
With respect to seizures, „[a] seizure occurs whenever a police officer “by means of
physical force or show of authority” restrains the liberty of a person to walk away.‟
[Citations.]” (People v. Vibanco (2007) 151 Cal.App.4th 1, 8 (Vibanco).) Before an
officer can detain someone, there must be reasonable suspicion to believe that the person
is engaged in criminal activity. “[T]he temporary detention of a person for the purpose
of investigating possible criminal activity may, because it is less intrusive than an arrest,
be based on „some objective manifestation‟ that criminal activity is afoot and that the
person to be stopped is engaged in that activity. [Citations.]” (Souza, supra, 9 Cal.4th at
p. 230.)
       The first question in this case is when defendant was detained for purposes of the
Fourth Amendment. Defendant does not dispute that he was not detained when Officer
delaCruz initially spoke to him and asked “if he had any ID.” (See Vibanco, supra, 151
Cal.App.4th at p. 13 [a police officer can “ „talk to anyone he encounters while regularly
performing his duties‟ ” and can “ „ask a person for identification without implicating the
Fourth Amendment‟ ”].)
       Defendant asserts that he was detained when Officer delaCruz first ordered him to
come out of the car. He asserts that a reasonable person “would not have felt as if he or
she was „free to leave,‟ ” rendering the encounter a detention.
       In Hodari D., the United States Supreme Court clarified that a detention does not
necessarily occur when, due to a show of authority by police, “ „a reasonable person
would have believed that he was not free to leave.‟ ” (Hodari D., supra, 499 U.S. at
p. 628, quoting United States v. Mendenhall (1980) 446 U.S. 544, 554.) The Court

                                              6
explained that this test “states a necessary, but not a sufficient, condition for seizure.”
(Ibid.) If “the subject does not yield” to the officer‟s show of authority, no seizure
occurs. (Id. at p. 626; see also Terry v. Ohio (1968) 392 U.S. 1, 20, fn. 16 [“Only when
the officer, by means of physical force or show of authority, has in some way restrained
the liberty of a citizen may we conclude that a „seizure‟ has occurred.”]; U.S. v. Baldwin
(2d Cir. 2007) 496 F.3d 215, 218 [“We have understood the import of Hodari D. to be
that „an order to stop must be obeyed or enforced physically to constitute a seizure.‟ ”].)
       Based on the principles stated in Hodari D., we disagree with defendant‟s claim
that he was detained when Officer delaCruz first ordered him to come out of the car.
Even if a reasonable person would not have felt as if he or she was free to leave, the
encounter was not a detention at that point because defendant did not actually “yield” to
the officer‟s “show of authority.” (Hodari D., supra, 499 U.S. at p. 626.) Instead,
defendant ignored the officer‟s directive and continued reaching into the car. (See People
v. Johnson (1991) 231 Cal.App.3d 1, 10 [defendant was not detained when he ignored
officer‟s command to “ „ “Come down towards me,” ‟ ” even if reasonable person would
have felt he or she was not free to leave].)
       Alternatively, defendant claims that he came out of the car in response to the
officer‟s repeated orders and that he was detained at that point. Defendant acknowledges
that he then walked away from the officer but contends that he was still complying with
the officer‟s command, since the officer did not specify where he was to go other than
“out of the car.”
       The Attorney General argues that defendant was not actually detained until
Officer delaCruz grabbed his arm, because defendant did not comply with the officer‟s
further commands and thus never submitted to the officer‟s “show of authority.” (See
Hodari D., supra, 499 U.S. at p. 626.)
       We agree with the Attorney General that defendant was not detained until Officer
delaCruz applied physical force to effect the seizure. Although defendant did eventually

                                               7
“come out of the car,” the record does not support defendant‟s claim that he necessarily
did so in submission to the officer‟s show of authority. Rather, the record supports a
finding that defendant moved out of the car in response to the officer‟s approach. As
Officer delaCruz testified, defendant did not respond to his repeated commands until the
officer got close to him: “At that point he did come out of the car and started walking
towards the rear of the vehicle.” Importantly, as he walked away, defendant continued to
ignore the officer‟s further command to “stop reaching for the waistband.” Thus,
defendant never actually “yield[ed]” to the officer‟s “show of authority” (Hodari D.,
supra, 499 U.S. at p. 626) and was not detained until Officer delaCruz grabbed his arm.
       As the trial court found, reasonable suspicion supported the detention and pat-
search for weapons at the time Officer delaCruz grabbed defendant‟s arm. Based on
defendant‟s behavior in refusing to come out of the car and reaching toward his
waistband, together with the fact that defendant had a gang tattoo and was in a known
gang area where a recent homicide had occurred, a reasonable officer would have
suspected that defendant might be armed. (See In re H.M. (2008) 167 Cal.App.4th 136,
146 [“Officers in an area plagued by violent gang activity need not ignore the reality that
persons who commit crimes there are likely to be armed.”]; In re Frank V. (1991) 233
Cal.App.3d 1232, 1241 [detention and pat-down lawful where defendant was in a gang
neighborhood at night and reached back into his pockets after being ordered to show his
hands].)
       We conclude the trial court did not err by denying defendant‟s motion to suppress.
Further, since we have found no merit to defendant‟s arguments, we conclude that trial
counsel was not ineffective for failing to make those arguments below.
       B.     Booking Fee
       As noted above, the trial court imposed a $129.75 criminal justice administration
fee at sentencing pursuant to Government Code section 29550.1. Defendant contends
that although this section does not expressly require the trial court to find a defendant has

                                              8
the ability to pay the fee before ordering payment, the equal protection provisions of the
state and federal Constitutions require the section to be interpreted as including an
ability-to-pay requirement. Defendant further contends that the court below did not make
an inquiry into his ability to pay, and that there was no evidence to support a finding that
he had an ability to pay. Although he did not object to the fee below, defendant argues
that his appellate claim for insufficiency of the evidence has not been forfeited.
Alternatively, defendant contends that trial counsel was ineffective for failing to object.
He also contends the issue is cognizable because it involves a pure question of law.
       The Attorney General contends that defendant has forfeited his claim of
insufficiency of the evidence concerning the ability to pay. The Attorney General further
argues that the trial court made an implied finding that defendant had the ability to pay
the fee, and that principles of equal protection do not require us to interpret Government
Code section 29550.1 as including an ability-to-pay provision.
       The California Supreme Court recently held that, by failing to object below, a
defendant forfeits an appellate claim that he or she lacks the ability to pay a booking fee
imposed pursuant to Government Code section 29550.2. (People v. McCullough (2013)
56 Cal.4th 589.) In this case, defendant‟s challenge to the booking fee raises the initial
question of whether equal protection principles require Government Code section
29550.1 to be interpreted as including an ability-to-pay requirement. The forfeiture
doctrine has been applied to unpreserved equal protection claims. (See, e.g., People v.
Alexander (2010) 49 Cal.4th 846, 880, fn. 14.) However, an appellate court may reach
the merits of a constitutional claim when it is “ „one of law presented by undisputed facts
in the record . . . that does not require the scrutiny of individual circumstances, but
instead requires the review of abstract and generalized legal concepts. . . .‟ ” (People v.
Delacy (2011) 192 Cal.App.4th 1481, 1493; see In re Spencer S. (2009) 176 Cal.App.4th
1315, 1323; In re Sheena K. (2007) 40 Cal.4th 875, 887-888 & fn. 7.)



                                              9
       Assuming, without deciding, that defendant may challenge the criminal justice
administration fee for the first time on appeal, we determine that the trial court was not
required under equal protection principles to consider defendant‟s ability to pay.
Government Code sections 29550, 29550.1, and 29550.2 authorize the imposition of a
criminal justice administration fee on an arrestee who is ultimately convicted, in order to
cover the expenses involved in booking or otherwise processing the arrestee in a county
jail. Government Code sections 29550 and 29550.2 expressly require a finding that the
person has the ability to pay the fee when the fee is imposed under certain circumstances.
(See Gov. Code, §§ 29550, subd. (d)(2), 29550.2, subd. (a).) Government Code
section 29550.1, the statute which authorizes imposition of the fee on defendant in this
case, does not contain an express ability-to-pay requirement. According to defendant, the
absence of an ability-to-pay requirement in Government Code section 29550.1 violates
his state and federal rights to equal protection.
       To prevail on an equal protection claim, a defendant must first establish that the
state has adopted a classification that affects two or more similarly situated groups in an
unequal manner. (People v. Brown (2012) 54 Cal.4th 314, 328; People v. Hofsheier
(2006) 37 Cal.4th 1185, 1199 (Hofsheier).) Unless the statutory distinction at issue
involves a suspect classification, touches upon a fundamental interest, or is based on
gender, most equal protection challenges are analyzed under the rational relationship test.
(Hofsheier, supra, at p. 1200.) Defendant in this case asserts that the statutory scheme
fails the rational relationship test. Under this test, “ „ “ „a statutory classification . . . must
be upheld against equal protection challenge if there is any reasonably conceivable state
of facts that could provide a rational basis for the classification. [Citations.] Where there
are “plausible reasons” for [the classification], “our inquiry is at an end.” ‟ ” ‟
[Citations.]” (Id. at pp. 1200-1201, italics omitted.)
       Arguably, persons subject to Government Code section 29550.1 and those subject
to Government Code sections 29550 and 29550.2 are not similarly situated. Counties

                                                10
typically operate the jails and bear the expense of providing for persons held there. (Gov.
Code, § 29602, §§ 4000, 4015; City of San Jose v. State of California (1996) 45
Cal.App.4th 1802, 1813-1814.) Under Government Code section 29550, subdivision (c),
a county may recover its “actual administrative costs” directly from the arrested person if
the person was arrested by county personnel. The county may also recover its actual
costs directly from the arrested person when the arrest was made by a governmental
entity not specified in Government Code sections 29550 or 29550.1, which would include
state law enforcement agencies. (Gov. Code, § 29550.2, subd. (a).) But where the arrest
was made by a “city, special district, school district, community college district, college,
or university,” the county may impose a fee on that local arresting entity for no more
than “one-half” of the county‟s “actual administrative costs.” (Gov. Code, § 29550,
subd. (a)(1).) Under Government Code section 29550.1, the local arresting entity may, in
turn, recover from the arrested person the fee “imposed by a county.” (Gov. Code,
§ 29550.1.) Thus, someone like defendant, who was arrested by a local entity such as
San Jose police, is liable for one-half the amount for which county or state arrestees are
liable. Therefore, arguably, the local arrestee and the county and state arrestees are not
similarly situated.
       Even if these classes of arrestees were similarly situated for purposes of the law,
there is a conceivable rational basis for the differential treatment. Although a person
arrested by a local entity will be required to pay a criminal justice administration fee even
absent an ability-to-pay finding, and other arrestees will not have to pay the fee if they do
not have the ability, the local arrestee has the benefit of being charged one-half the
amount that other arrestees are charged. The Legislature could rationally have concluded
that imposing an ability-to-pay condition in cases of county and state arrestees but
omitting it as to local arrestees was reasonable because the former are exposed to a
potential debt two times the size of that the latter will have to pay. This is a plausible
basis for the differential treatment.

                                              11
       Accordingly, we conclude that equal protection principles did not require the
trial court to determine defendant‟s ability to pay before imposing a criminal justice
administration fee payable to the City of San Jose. (See Gov. Code, § 29550.1;
Hofsheier, supra, 37 Cal.4th at pp. 1199, 1200-1201.) In view of our conclusion, we do
not reach defendant‟s contentions concerning the court‟s failure to make an inquiry
concerning his ability to pay and the purported lack of evidence of his ability to pay.

                                     DISPOSITION
       The judgment is affirmed.




                                   ___________________________________________
                                   BAMATTRE-MANOUKIAN, J.




WE CONCUR:




________________________________
ELIA, ACTING P.J.




________________________________
MÁRQUEZ, J.




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