Filed 1/3/14 P. v. Garcia 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039121
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1235944)

         v.

ARTHUR GARCIA,

         Defendant and Appellant.



         Defendant Arthur Garcia appeals from a judgment of conviction entered after he
pleaded no contest to possession of methamphetamine (Health & Saf. Code, § 11377,
subd. (a)) and being under the influence of methamphetamine (Health & Saf. Code,
§ 11550, subd. (a)). Defendant also admitted three prior convictions for being under the
influence of a controlled substance and one prior conviction for transportation of a
controlled substance (Health & Saf. Code, § 11379) within the meaning of Penal Code
section 667.5, subdivision (b). The trial court suspended imposition of sentence and
placed defendant on probation for three years. On appeal, defendant contends: (1) the
trial court erred when it denied his motion to suppress evidence; (2) the trial court erred
when it imposed the $110 monthly probation supervision fee because there was
insufficient evidence of his ability to pay; and (3) defense counsel’s failure to object to
imposition of the booking fee constituted ineffective assistance of counsel. We affirm.
                                   I. Statement of Facts1
       At approximately 5:05 p.m. on June 28, 2012, Deputy Henry Rocha was patrolling
the parking area of an apartment complex when he contacted an individual with an open
container of alcohol. Rocha arrested this individual after discovering that he had an
outstanding trespassing warrant. The individual requested that Rocha ask defendant, who
was in the apartment complex laundry room, to hold his property for him.
       Rocha, who was in full uniform and wearing his service weapon, went to the
laundry room, where he stood at the doorway. He never entered the laundry room. The
laundry room measured approximately five feet by five feet and contained at least one
washer and one dryer. Defendant was washing clothing and charging his cell phone.
Rocha was approximately four or five feet from defendant. Rocha, spoke to defendant in
a “normal tone” of voice. He asked defendant if he lived in the apartment complex, and
defendant replied that he was a transient. Rocha next asked defendant if he was on
probation or parole. Defendant replied that he was not. Rocha then asked defendant if he
knew the individual in the parking area. Rocha told him that the individual had property
that he wanted to give to defendant. As Rocha was speaking with defendant, he noticed
that defendant was “[s]weating profusely, [had] excited raspy speech, [had] dry mouth,
[was] real fidgety. Could not stand still.” Based on his training and experience, Rocha
concluded that defendant displayed objective symptoms of being under the influence of
methamphetamine.
       Rocha asked defendant if he could speak to him outside, and defendant said yes.
After conducting various field sobriety tests, Rocha asked defendant if he had any drugs
or drug paraphernalia on him. Defendant responded that he was in possession of
methamphetamine. Defendant then consented to a search, and Rocha found




1
       The following facts are taken from the hearing on the motion to suppress evidence.
                                            2
methamphetamine in defendant’s pocket. At that point, Rocha handcuffed defendant and
placed him in the back of the patrol car.


                                 II. The Trial Court’s Ruling
       Following argument, the trial court stated: “There is no evidence here that the
officer’s tone was anything other than casual and inquisitive. There is nothing here to
suggest that the officer used any display of force or intimidation. It is merely his physical
placement in the doorway that the defense contends amounts to such a show of authority
that defendant or any reasonable person would have not felt free to leave. [¶] . . . [¶] . . .
[T]here was no other way for the officer to approach the defendant and have a consensual
encounter with him other than to walk up to the doorway of the laundry room. . . . [¶] . . .
[¶] I do not find that any of the officer’s conduct would have conveyed to a reasonable
person[] under these circumstances, and the totality of these circumstances, that he or she
was not free to refuse to answer questions or not free to leave. And I consider in this
context not only the physical circumstances but also the nature of the questions the
officer asked, which again in and of themselves do not transform that conduct into some
demonstration of force or intimidation.” The trial court then denied the motion to
suppress evidence.


                                        III.   Discussion
                               A. Motion to Suppress Evidence
       Defendant contends that the trial court erred in denying his motion to suppress
evidence. He argues that the officer illegally seized him in violation of the Fourth
Amendment, and his subsequent consent to be searched was involuntary, and thus the
results of the field sobriety tests and the methamphetamine found in his pocket should
have been suppressed.


                                               3
       The Fourth Amendment, made applicable to the states through the due process
clause of the Fourteenth Amendment, protects the individual against unreasonable
searches and seizures. (Mapp v. Ohio (1961) 367 U.S. 643, 656-660.) When a police
officer engages in conduct that violates the Fourth Amendment, the evidence obtained
through such conduct is subject to the exclusionary rule. (People v. Mayfield (1997) 14
Cal.4th 668, 760.)
       “For purposes of Fourth Amendment analysis, there are basically three different
categories or levels of police ‘contacts’ or ‘interactions’ with individuals, ranging from
the least to the most intrusive. First, there are . . . ‘consensual encounters’ [citation],
which are those police-individual interactions which result in no restraint of an
individual’s liberty whatsoever—i.e., no ‘seizure,’ however minimal—and which may
properly be initiated by police officers even if they lack any ‘objective justification.’
[Citation.] Second, there are . . . ‘detentions,’ seizures of an individual which are strictly
limited in duration, scope and purpose, and which may be undertaken by the police ‘if
there is an articulable suspicion that a person has committed or is about to commit a
crime.’ [Citation.] Third, and finally, there are those seizures of an individual which
exceed the permissible limits of a detention, seizures which include formal arrests and
restraints on an individual’s liberty which are comparable to an arrest, and which are
constitutionally permissible only if the police have probable cause to arrest the individual
for a crime.” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.)
       In determining whether an encounter between a police officer and an individual
constitutes a detention, we note that a “seizure does not occur simply because a police
officer approaches an individual and asks a few questions.” (Florida v. Bostick (1991)
501 U.S. 429, 434 (Bostick).) For Fourth Amendment purposes, “a person is ‘seized’
only when, by means of physical force or a show of authority, his freedom of movement
is restrained.” (United States v. Mendenhall (1980) 446 U.S. 544, 553.) “[T]o determine
whether a particular encounter constitutes a seizure, a court must consider all the
                                               4
circumstances surrounding the encounter to determine whether the police conduct would
have communicated to a reasonable person that the person was not free to decline the
officers’ requests or otherwise terminate the encounter.” (Bostick, at p. 439.)
“Circumstances establishing a seizure might include any of the following: the presence
of several officers, an officer’s display of a weapon, some physical touching of the
person, or the use of language or of a tone of voice indicating that compliance with the
officer’s request might be compelled.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
“The officer’s uncommunicated state of mind and the individual citizen’s subjective
belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny
has occurred.” (Ibid.)
       “Whether a seizure occurred within the meaning of the Fourth Amendment is a
mixed question of law and fact qualifying for independent review. [Citations.]
Accordingly, ‘we review the trial court’s findings of historical fact under the deferential
substantial evidence standard, but decide the ultimate constitutional question
independently. [Citations.]’ [Citation.] We must accept factual inferences in favor of
the trial court’s ruling. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 342.)
       Here, a single uniformed officer stood in the doorway of the laundry room. The
officer then asked defendant three questions in a “casual and inquisitive” tone of voice
while he was five feet away from him. The officer neither displayed his weapon nor
touched defendant. In considering the totality of the circumstances, there was nothing in
the officer’s conduct which “would have communicated to a reasonable person that the
person was not free to decline the officer[’s] requests or otherwise terminate the
encounter.” (Bostick, supra, 501 U.S. at p. 439.)
       Relying on People v. Wilkins (1986) 186 Cal.App.3d 804 (Wilkins) and People v.
Spicer (1984) 157 Cal.App.3d 213 (Spicer), defendant argues that he was seized when the
officer blocked the only exit to the laundry room, and thus a reasonable person would not
have felt free to walk away. Wilkins held that the defendant was seized when the police
                                             5
officer parked directly behind his vehicle. (Wilkins, at p. 809.) Spicer held that the
defendant, a passenger in a vehicle that had been lawfully stopped, was seized when the
officer asked her to produce a driver’s license and illuminated her purse with his
flashlight. (Spicer, at pp. 216, 218.) The United States Supreme Court subsequently
considered this question in Bostick and thus is controlling. In that case, two officers
boarded a bus, asked the defendant for identification, and then requested his consent to
search his luggage after advising him that he had the right to refuse consent. (Bostick,
supra, 501 U.S. at pp. 431-432.) The defendant argued that “a reasonable bus passenger
would not have felt free to leave under the circumstances of this case because there is
nowhere to go on a bus. Also, the bus was about to depart. Had [the defendant]
disembarked, he would have risked being stranded and losing whatever baggage he had
locked away in the luggage compartment.” (Id. at p. 435.) Bostick reasoned that “the
mere fact that [the defendant] did not feel free to leave the bus does not mean that the
police seized him. [The defendant] was a passenger on a bus that was scheduled to
depart. He would not have felt free to leave the bus even if the police had not been
present. [The defendant’s] movements were ‘confined’ in a sense, but this was the
natural result of his decision to take the bus; it says nothing about whether or not the
police conduct at issue was coercive.” (Id. at p. 436.) Thus, Bostick concluded that “the
appropriate inquiry is whether a reasonable person would feel free to decline the officers’
requests or otherwise terminate the encounter.” (Ibid.) Here, as in Bostick, defendant’s
confinement was the result of his own conduct, not that of the officer. Defendant was
washing his clothes and charging his cell phone in the laundry room. He would not have
felt free to leave even if the officer was not present until he had completed these
activities. As in Bostick, the appropriate inquiry was whether a reasonable person would
have felt he or she was free to decline to answer the officer’s questions or terminate the
encounter. (Bostick, supra, 501 U.S. at p. 439.)


                                              6
       In sum, since the officer’s initial encounter with defendant was consensual, it was
not a seizure under the Fourth Amendment. Accordingly, the trial court properly denied
the motion to suppress evidence.


                           B. Monthly Probation Supervision Fee
       Defendant next contends that there was insufficient evidence to support a finding
that he had the ability to pay a monthly probation supervision fee of $110.
       Before imposing various fines and fees at the sentencing hearing, the trial court
told defendant: “You’re to report to a probation officer within three days of your
release. . . . [¶] You’re ordered to report to the Department of Revenue within 30 days of
your release from custody for a determination of your ability to pay the fines and fees the
court will impose. [¶] If you disagree with their findings, you have a right to have a
hearing on that issue before the court.” The trial court then imposed a monthly probation
supervision fee not to exceed $110.
       Penal Code section 1203.1b states in relevant part: “[I]n any case in which a
defendant is granted probation or given a conditional sentence, the probation officer, or
his or her authorized representative, taking into account any amount that the defendant is
ordered to pay in fines, assessments, and restitution, shall make a determination of the
ability of the defendant to pay all or a portion of the reasonable cost of any probation
supervision . . . . The court shall order the defendant to appear before the probation
officer, or his or her authorized representative, to make an inquiry into the ability of the
defendant to pay all or a portion of these costs. The probation officer, or his or her
authorized representative, shall determine the amount of payment and the manner in
which the payments shall be made to the county, based upon the defendant's ability to
pay. The probation officer shall inform the defendant that the defendant is entitled to a
hearing, that includes the right to counsel, in which the court shall make a determination
of the defendant’s ability to pay and the payment amount. The defendant must waive the
                                              7
right to a determination by the court of his or her ability to pay and the payment amount
by a knowing and intelligent waiver.”
       Defendant argues that the trial court failed to make a finding on his ability to pay
this fee and that there was no evidence of his ability to pay. The Attorney General
contends that the issue has been forfeited.
       Even assuming that the issue has not been forfeited, defendant’s challenge fails.
As defendant concedes, Penal Code section 1203.1b, subdivision (a) does not require the
trial court to make a finding on a defendant’s ability to pay the monthly probation
supervision fee prior to ordering a defendant to report for a determination by the
Department of Revenue on the issue. Here, the trial court ordered defendant to go to the
Department of Revenue for a determination of his ability to pay the fee, thereby
complying with the statutory obligation of Penal Code section 1203.1b, subdivision (a).
The Department of Revenue will inquire into defendant’s ability to pay, but no
determination of ability to pay has yet been made. By conditioning defendant’s monthly
probation supervision fee contingent on the Department of Revenue’s determination as to
his ability to pay the fee, the order imposed no current financial obligation on defendant.
Instead, it set a maximum monthly financial obligation of $110 and left open what
portion, if any, of that maximum defendant would pay. After the Department of Revenue
determined defendant’s ability to pay, as the trial court informed defendant, he would
have the right to challenge that determination at an ability-to-pay hearing before the trial
court. Thus, any challenge to the monthly probation supervision fee is premature.


                            C. Ineffective Assistance of Counsel
       As previously discussed, the trial court ordered defendant to report to the
Department of Revenue for a determination of his ability to pay all fees, and in the event,
that he disagreed with this determination, he was entitled to an ability-to-pay hearing.


                                              8
The trial court imposed a booking fee of $259.50. Defendant did not object to imposition
of this fee.
       Government Code section 29550, subdivision (c) authorizes the imposition of a
criminal justice administration fee on an arrestee who is ultimately convicted in order to
cover the expenses in booking or processing the arrestee in county jail. Government
Code section 29550, subdivision (d)(2) states: “The court shall, as a condition of
probation, order the convicted person, based on his or her ability to pay, to reimburse the
county for the criminal justice administration fee, including applicable overhead costs.”
       People v. McCullough (2013) 56 Cal.4th 589 recently held that a defendant who
fails to challenge the sufficiency of the evidence to support imposition of a booking fee at
the sentencing hearing forfeits the claim on appeal. (Id. at p. 590.) At the time of
defendant’s sentencing hearing, the California Supreme Court had granted review in that
case to consider this issue. (People v. McCullough (2011) 193 Cal.App.4th 864, review
granted June 29, 2011, S192513.) Defendant now contends that his counsel’s failure to
object to imposition of booking fees without evidence of his ability to pay constituted
ineffective assistance of counsel.
       “To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. [Citations.] Counsel’s performance was deficient if the
representation fell below an objective standard of reasonableness under prevailing
professional norms. [Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 92-93,
citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694.) However,
“ ‘[if] the record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged[,] . . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation,’ the claim on
appeal must be rejected.” (People v. Wilson (1992) 3 Cal.4th 926, 936.)


                                              9
       Here, defendant has failed to show that defense counsel’s performance was
deficient. Defense counsel may not have objected to imposition of the booking fee
because he considered the issue premature given that defendant had not yet reported to
the Department of Revenue for a determination of his ability to pay the fee. Defense
counsel may have also known facts outside the record that would have supported
imposition of the fee. Thus, we reject defendant’s ineffective assistance contention.


                                     IV.     Disposition
       The judgment is affirmed.



                                           _______________________________
                                           Mihara, J.



WE CONCUR:




______________________________
Premo, Acting P. J.




______________________________
Grover, J.




                                            10
