Filed 5/28/14 P. v. McCoy CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)




THE PEOPLE,                                                                                  C072425

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF120911A)

         v.

RAMON RASHOD MCCOY,

                   Defendant and Appellant.




         After his motion to suppress evidence was denied, defendant Ramon Rashod
McCoy pleaded guilty to possession of a firearm by a convicted felon. (Pen. Code,
§ 29800, subd. (a)(1).)1 In exchange, six related counts and allegations were dismissed.
Defendant was sentenced to prison for a stipulated upper term of three years and ordered
to pay various fines and fees.




1   Undesignated statutory references are to the Penal Code.

                                                             1
       On appeal, defendant contends his suppression motion should have been granted
because (1) there was insufficient justification for his detention and the search of his
backpack, and (2) the prosecution’s failure to file a response to the suppression motion,
purportedly required by a local rule, warranted the sanction of suppression of the
evidence.
       We affirm.
                     FACTS FROM SUPPRESSION HEARING2
       On October 23, 2012, the trial court heard the joint suppression motion of
defendant and codefendant Patrice Duncan, who is not a party to this appeal.
       The only witness at the suppression hearing was Stockton Police Officer Jeffrey
Pope. He testified that on July 10, 2012, at about 11:45 p.m., he was on patrol in
Stockton, wearing a uniform and driving a marked police car. While driving westbound
on Martin Luther King Boulevard (MLK), Officer Pope saw an “unusual[ly] colored”
sports car, black with a yellow racing stripe, pull out of a gas station and head eastbound
on MLK at “a higher rate of speed.”
       Officer Pope observed in his rearview mirror that the sports car appeared to be
traveling “much faster” than other traffic. Officer Pope made a U-turn and attempted to
catch up with the sports car.




2  The prosecutor asked the trial court to review the transcript of the preliminary
examination before ruling on the suppression motion. In its ruling the trial court referred
to evidence contained in the transcript. Defendant did not object. Accordingly, our
statement of facts includes facts developed at the preliminary examination. (See also,
Super. Ct. San Joaquin County, Local Rules, rule 2-102.1(5) [failure of a party to state an
unwillingness to stipulate that the transcript of the preliminary examination may be
received into evidence at the section 1538.5 hearing is deemed a stipulation that the
transcript may be admitted]; further references to Local Rules are to the Super. Ct. San
Joaquin County, Local Rules.)

                                              2
       At the intersection of MLK and Airport, Officer Pope saw taillights similar to
those of the sports car heading southbound on Airport. He turned onto Airport to follow
the taillights. In an attempt to catch up to the car, Officer Pope hit speeds of 80 miles per
hour while passing other traffic on Airport. Finally, he pulled in behind the car, which
was stopped for a red light, and recognized it as the sports car that had drawn his
attention. Officer Pope followed the car as it made a left turn at the light, then a right
turn, and finally another left turn before pulling over and coming to a stop at what was
later determined to be Duncan’s residence.
       Officer Pope testified that the driver failed to signal before making the last two
turns and before pulling over to park. After the sports car came to a stop, Officer Pope
“activated [his] overhead lights . . . for the traffic violations” and parked his car. On
cross-examination by counsel for Duncan, Officer Pope identified “the traffic violation
[he] stopped [defendant] for” as “the turn signals,” or, more precisely, the lack of turn
signals. When asked on cross-examination whether he would change anything in his
police report, Officer Pope stated he would add that he stopped defendant for failing to
use turn signals.3
       Officer Pope approached the sports car to contact the driver, whom he identified in
court as defendant. Officer Pope told defendant to remain in the car, which he did.
Officer Pope then asked defendant for his driver’s license. Defendant responded that he
did not have it in his possession, but he knew the number on the license.




3 When asked whether the turn signal violation was the only violation for which he could
“legitimately” stop defendant, Officer Pope testified that defendant “was speeding,” but,
he believed the lack of turn signals was “in [his] mind, more valid stop reason than the
speed when [he] couldn’t clock the speed.”



                                              3
       Officer Pope asked defendant if he was on probation or parole. Defendant said,
“Yes, I am on parole,” and added that it was “for possession.” Officer Pope then had
defendant step out of the car, patted him down for weapons, handcuffed him, and placed
him in the back of the patrol car. Defendant was secured in the patrol car because there
was another occupant in the sports car and Officer Pope intended to do a parole search of
the car.
       Officer Pope returned to the sports car and asked the female occupant, Duncan, if
she was on probation or parole. She said, “no.”
       Officer Pope noticed that Duncan had a backpack on the floorboard between her
legs. The backpack was open or unzipped at the top, and it would have been within the
reach of defendant had he still been in the car. Officer Pope wanted to search the
backpack as part of the parole search. The backpack had no name on it and bore no
indication of who owned it.
       Duncan stepped out of the sports car and slung the backpack over her shoulder.
Officer Pope stopped her before she could travel in any direction. After “a little struggle”
during which Duncan refused to relinquish the backpack, Pope handcuffed her and
thereafter searched the backpack.
       The backpack contained a loaded revolver, two plastic baggies containing 0.3
grams of heroin and 2.62 grams of methadone, a digital scale, and two documents bearing
the name of defendant. There were no indicia of ownership by Duncan in the backpack.
       After Officer Pope testified, the trial court heard arguments from the parties.
Defendant’s counsel argued that the fact Officer Pope had driven at 80 miles per hour in
order to catch up to the sports car did not prove that defendant had been speeding.
Defendant’s counsel also challenged Officer Pope’s credibility, noting that Pope had not
mentioned any turn signal violations in his police report or in his testimony at the
preliminary examination. “It’s not until we came to a [section] 1538[.5] motion where all
of a sudden these turn signal violations come out.”

                                             4
        Codefendant Duncan’s counsel joined in the remarks of defendant’s counsel,
stated he did not see “the probable cause for the search,” and argued there was not
“necessarily a connection between the backpack and [defendant’s] parole status,” which
had been “the only basis” Officer Pope had “proposed as a reason to search.”
        The prosecutor defended the credibility of Officer Pope’s testimony, noting that it
was highly consistent with his testimony at the preliminary examination. In response to
defendant’s counsel’s argument, the prosecutor noted that “[n]o one asked [Officer Pope]
when he remembered” the turn signal violations. The prosecutor further argued “this was
a parole search, you can do a parole search for all items within the parolee’s reach.
Clearly, the backpack was within the parolee’s reach. There was no identification on
whose backpack that was.”
        The trial court ruled: “Okay. And actually, the very beginning of the preliminary
[examination], under direct, Officer Pope was asked, ‘And why did you activate your
lights? [¶] I stopped them for a traffic violation. [¶] Question: You saw? [¶] Yes.’[4]
[¶] So it was clear he was stopped for a traffic violation. Whether -- but the fact he had
to go 80 miles an hour to catch up to the car is probable cause that car probably was



4   The entire set of questions and answers on this point were as follows:

        “[PROSECUTOR:] And where did you stop the defendants?

        “[POPE:] I didn’t actually stop. They stopped themselves, and I activated my
lights as they pulled over in front of 1502 E. 9th Street.

        “[PROSECUTOR:] And why did you activate your lights?

        “[POPE:] I had stopped them for [a] traffic violation.

        “[PROSECUTOR:] That you saw?

        “[POPE:] Yes.”



                                              5
speeding and the officer had a right to pull him over based on that. [¶] The backpack
was in the clear possession of -- not clear possession, but in the control of [defendant].
It’s a small car, was on the floorboard. Even if it had been in the back seat, [t]his Court
would find that under the parole search conditions, it would have been rightfully
searched. [¶] So the [section] 1538[.5] [motion] is denied.” (Italics added.)
                                         DISCUSSION
                          I. Denial of the Suppression Motion
       Defendant contends his suppression motion should have been granted because the
evidence was insufficient to support his detention and the ensuing search of the backpack.
We begin with defendant’s claim that the traffic stop was unlawful because (1) the trial
court upheld the stop based on speeding, not turn signal violations; (2) there was no
substantial evidence defendant was speeding; and (3) his failure to use a turn signal was
not necessarily a violation. After considering these points, we address defendant’s claims
related to the search of the backpack.
                                  A. 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. We review the court’s resolution of the factual inquiry under
the deferential substantial-evidence standard. The ruling on whether the applicable law
applies to the facts is a mixed question of law and fact that is subject to independent
review. [Citation.]” (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134.)
                                   B. Traffic Violations
       Defendant claims the trial court “justified the stop based on speeding, not turn
signal violations.” His claim is based on his trial counsel’s argument that Officer Pope’s
testimony regarding turn signals was not credible, inasmuch as he (1) failed to include the
information in the police report or testify about it at the preliminary hearing, and (2)
probably lacked independent recollection of the event. Defendant now infers that “the

                                              6
trial court was unwilling to credit the testimony regarding the alleged failure of
[defendant] to use his turn signals.” We disagree.
       The trial court did not expressly state that it disbelieved Officer Pope’s testimony
about the turn signals. Nor did the court make a finding that there was insufficient
evidence of turn signal violations to justify the stop. To the contrary, the trial court noted
in its ruling that, at “the very beginning of the preliminary hearing, under direct, Officer
Pope was asked, ‘And why did you activate your lights? [¶] I stopped them for a traffic
violation. [¶] Question: You saw? [¶] Yes.’ [¶] So it was clear he was stopped for a
traffic violation.” On cross-examination at the suppression hearing, Officer Pope
testified that the traffic violations for which he stopped defendant were the turn signal
violations. Thus, in context, the trial court’s finding that “it was clear he was stopped for
a traffic violation” is a finding that he was stopped for the lack of turn signals.5
       After the court found “it was clear he was stopped for a traffic violation,” the court
went on to note, “but the fact [Officer Pope] had to go 80 miles an hour to catch up to
[defendant’s] car is probable cause that car probably was speeding and the officer had a
right to pull him over based on that.” (Italics added.) We view this follow-up statement
as an alternative ground for denial of the suppression motion. That this was intended as
an alternative ground is evidenced by the court’s use of the word, “but” following its
observation that it was clear defendant had been stopped for a traffic violation.6 Thus,



5 We also note that Officer Pope was not asked at the preliminary hearing about the
nature of the traffic violations that caused him to activate his lights, and because the
defense did not raise the suppression issue at that time (§ 1538.5, subd. (f)(2)), there was
no need for the prosecutor to develop that evidence or for Officer Pope to be more
specific at that time.
6 We note that defendant quoted the trial court in his opening brief, but omitted the word
“but.”



                                              7
contrary to defendant’s assertion, that follow-up statement does not detract from the trial
court’s finding that defendant failed to use turn signals - it adds to it. As for defendant’s
contention that the evidence supporting the alternative finding that he was speeding was
insufficient, we need not consider it further because the evidence of turn signal violations
is sufficient to justify the stop.
       Officer Pope’s testimony is substantial evidence of the historical fact that
defendant failed to activate his signals. (People v. Saunders, supra, 38 Cal.4th at
pp. 1133-1134.) Defendant claims he had no duty to signal because there was
insufficient evidence that his unsignaled turning motions may have affected another
vehicle. We disagree.
       Vehicle Code section 22107 provides: “No person shall turn a vehicle from a
direct course or move right or left upon a roadway until such movement can be made
with reasonable safety and then only after the giving of an appropriate signal in the
manner provided in this chapter in the event any other vehicle may be affected by the
movement.” (Italics added.)
       Defendant’s argument overlooks Officer Pope’s testimony that, after pulling in
behind defendant while he was stopped for a red light, Pope followed defendant for one
to two and a half blocks as he made a left turn, then a right turn, and finally another left
turn before pulling over and coming to a stop at Duncan’s residence. Defendant failed to
signal during the last two turns as well as when he pulled over.
       “[A] signal is primarily aimed at vehicles behind the car making the lane change.
That even applies to a patrol car, irrespective of the lack of any other traffic.” (People v.
Logsdon (2008) 164 Cal.App.4th 741, 744, fn. omitted; People v. Miranda (1993)
17 Cal.App.4th 917, 930.) At the time of the first turn signal violation, Officer Pope was
two car lengths behind defendant’s vehicle. When defendant made the second turn
without signaling, Officer Pope was a single car length behind defendant. Thereafter,
defendant drove only “a few yards” before he pulled over to the side of the road, again

                                              8
without signaling. Thus, there was substantial evidence that Officer Pope’s patrol car
was directly behind defendant and may have been affected by his failure to signal.
Officer Pope’s observation of the failures to signal, by a car traveling closely in front of
him, provided an objective manifestation that an activity related to crime has taken place,
and that defendant was involved in that activity. (People v. Souza (1994) 9 Cal.4th 224,
230; In re Tony C. (1978) 21 Cal.3d 888, 893.) The failure to signal observed by Officer
Pope justified a temporary detention of defendant. We, therefore, reject defendant’s
claims that the detention was unlawful, and the contents of the backpack were poisoned
fruit of the unlawful stop.
                         C. Proof that Defendant was on Parole
       Defendant claims that Officer Pope’s search of the backpack was unlawful
because the prosecutor did not prove that defendant was on parole. This claim meritless.
       After defendant offered to furnish his driver’s license number, Officer Pope asked
him if he was on probation or parole. Defendant said, “Yes, I am on parole,” and added
that it was “for possession.” The statement is an admission (Evid. Code, §1220) and a
statement against defendant’s penal interests. (Evid. Code, § 1230.) Thus, the statement
is admissible for the truth asserted therein. Consequently, defendant’s statement was
sufficient proof that he was on parole.
       Moreover, as this court long ago held, when a defendant tells an officer that he is
subject to a search condition, the officer can reasonably rely on that statement and if it
later turns out the defendant is not subject to the condition, evidence found during the
search will not be suppressed. (In re Jeremy G. (1998) 65 Cal.App.4th 553, 556 (Jeremy
G.).) This court implied that certain circumstances may make the officer’s reliance on a
defendant’s statement unreasonable, e.g., circumstances apparent to the officer that the
defendant is immature or lacking normal intelligence. (Ibid.) No such circumstances are
present here. Since it was reasonable for Officer Pope to rely on defendant’s statement,



                                              9
he was entitled to conduct the search and the trial court did not err in denying defendant’s
suppression motion.
       Defendant counters that a person, who previously has been informed that he is on
parole, may not subsequently be advised that he is no longer on parole. “That is, one can
come off parole without necessarily knowing about it.” But there is no evidence of that
here.7 Defendant’s admission is evidence that he was on parole and in the absence of
evidence to the contrary, his statements amount to substantial evidence of this fact.
Moreover, from the perspective of Officer Pope’s good faith reliance on the statement,
whether defendant’s belief of his parole status was accurate “is immaterial. The question
here is not whether [defendant] had a searchable condition attached to his release; rather
the question is whether Officer [Pope] was reasonable in relying on [defendant’s]
statement that he had such a condition.” (Jeremy G., supra, 65 Cal.App.4th at p. 556.)
Because, being a parolee is against a person’s interest, an officer may reasonably infer,
absent evidence to the contrary, that defendant monitored his status and would have
asserted he is no longer on parole if he truthfully could do so.
                               D. Search of the Backpack
       Defendant contends that the parole search did not lawfully extend to the backpack
because it was in the exclusive control of Duncan. He argues (1) the backpack, like a
purse, was a repository for personal items; (2) it was observed only in Duncan’s
immediate possession; (3) and she never let it leave her control. From these facts,
defendant concludes Officer Pope lacked the requisite “ ‘reasonable suspicion’ ” that the
backpack was within the scope of defendant’s parole search condition.



7 Unlike in Jeremy G., where it was later determined that the minor was not subject to a
search condition, there is no evidence here establishing that defendant was not, in fact, on
parole at the time of the search.



                                             10
       Defendant’s first point fails because the backpack’s physical appearance did not
identify it as “a repository for” the personal items of Duncan, as opposed to defendant.
(Cf. People v. Baker (2008) 164 Cal.App.4th 1152, 1159 [male driver did not have joint
control of female defendant’s purse].) In fact, the exterior appearance of the backpack
bore no clues of any particular person’s ownership.
       Officer Pope observed the backpack within reach of defendant on the passenger
floorboard of the defendant’s small compact sports car, a Nissan 300Z. Thus, contrary to
defendant’s second point, Officer Pope did not observe the backpack “only” in Duncan’s
possession and reasonably could infer from the circumstances that the backpack was in at
least the joint possession of defendant and Duncan. (People v. Schmitz (2012) 55 Cal.4th
909, 924, citing Maryland v. Pringle (2003) 540 U.S. 366, 372 [157 L.Ed.2d 769]
[reasonable to infer that driver and front and rear passengers had knowledge of, and
exercised dominion and control over, cocaine in an area accessible to all of them]; cf.
People v. Britton (1984) 156 Cal.App.3d 689, 700-703 [search of closet containing male
and female clothing; pistol in bag on shelf was in joint custody of parolee], disapproved
on other grounds in People v. Williams (1999) 20 Cal.4th 119, 135 (Williams).)
       This brings us to defendant’s third point, that Duncan asserted control over the
backpack when she carried it out of the car and refused to let Officer Pope examine it.
Defendant notes that Duncan “never let the [backpack] out of her control and indicated to
the officer that it was hers alone.”
       But prior to these acts, defendant had been removed from the car and secured in
the patrol car. The fact that Duncan ended up asserting control over the backpack after
defendant had been removed from the car does not reasonably demonstrate that she had
enjoyed sole control prior to that point. Duncan’s actions could simply indicate her
belief that the backpack should not be left behind in the car or examined by Officer Pope.
The trial court did not err in ruling that the subsequent search of the backpack was a valid
parole search.

                                            11
                               II. Motion Practice Sanction
       Defendant contends his suppression motion should have been granted as a
sanction for the prosecution’s violation of local rules that purportedly required it to file a
written response to his motion. We disagree. Defendant misunderstands the local rules.
                                      A. Background
       Defendant filed his notice of motion to suppress evidence on September 24, 2012.
Defendant’s points and authorities in support of the motion specified that the search was
conducted without a warrant and that the burden shifted to the prosecution to justify the
police officer’s actions, citing Williams, supra, 20 Cal.4th at pages 129-130, 135-136.
The prosecution did not file a written response to the motion.
       At the suppression hearing on October 23, 2012, defendant’s counsel asserted that
the prosecution had violated section 1538.5, subdivision (i)8 and Local Rules, rule 2-
102(D)9 by failing to file responsive points and authorities. Since one of the possible
sanctions for criminal motion practice noncompliance provided in Local Rules, rule 2-




8  Section 1538.5, subdivision (i) provides in pertinent part: “Any written response by the
[P]eople to the motion shall be filed with the court and personally served on the
defendant or his or her attorney of record at least two court days prior to the hearing,
unless the defendant is willing to waive a portion of this time.” (Italics added.)
Defendant does not repeat the claim that the prosecutor violated this section by not filing
a written response. As can be seen from the italicized word, “Any,” the Legislature did
not mandate that a written response be filed; it only mandated that if any response is
filed, it must be filed at least two days prior to the special hearing.”
9  Local Rules, rule 2-102(D) states: “Absence of a memorandum of points and
authorities shall be deemed by the court to be a concession that the motion lacks merit.
No issues other than those set forth in the memorandum of points and authorities will be
considered unless the new issues were not reasonably discoverable before the motion was
filed or there is other good cause shown.” (Italics added.)



                                              12
104 was “exclusion of evidence,” defendant’s counsel urged the trial court to grant his
suppression motion, essentially by default.10
       The prosecutor responded that he was unsure what defense counsel was “actually
calling out,” and “unsure what to even respond to,” because the preliminary examination
had raised issues of traffic violations, excessive speed, and parole violations; and none of
them had been addressed in defendant’s filing.
       The trial court stated that defense counsel was correct, in that local rules require a
response to the motion. The court declined to impose the sanction of granting the
suppression motion, but it reserved the issue of imposition of other sanctions. As will be
seen, both defendant and the trial court were mistaken about the local rules.
                                        B. Analysis
       Local Rules, rule 2-102(D) applies to motions, not to responses to motions. Local
Rules, rule 2-102 applies to criminal motion practice in general, and Local Rules, rule 2-
102(D) expressly states that the absence of points and authorities shall be deemed to be
“a concession that the motion lacks merit.” It does not say that the failure to file a written
response shall be deemed a concession that the motion is meritorious. Nor does it say
that the failure to file a written response shall be deemed a concession that any response
would lack merit. By its express terms, the rule provides that motions, unsupported by
points and authorities, are deemed to lack merit. Moreover, while Local Rules, rule 2-
102 applies to general motion practice in criminal cases, Local Rules, rule 2-102.1 is the




10 Local Rules, rule 2-104 states: “In the event of a failure to comply with . . . [Local
Rules, rule] 2-102, . . . the court may impose sanctions including a monetary fine, a
refusal to hear the motion, continuance, exclusion of evidence, issue preclusion, or any
other relief or sanctions the court deems appropriate.” (Italics added.)


                                             13
specific local rule applicable to section 1538.5 motions,11 and nothing in that rule
requires the prosecution to file a written response either.
       A local rule of court that would provide for the suppression of prosecution
evidence for failure to file a response to a defendant’s section 1538.5 motion would
violate article I, section 28, of the California Constitution, the Truth-in-Evidence
provision of Proposition 8. Pursuant to that constitutional provision enacted by the
electorate, a trial court may exclude evidence under Penal Code section 1538.5 only if



11   Local Rules, rule 2-102.1 provides: “Failure to comply with any portion of this rule
may constitute cause for denial of the motion. [¶] In all cases, the motion must be
written and must comply with [Local Rules,] rules 2-101, 2-102 and [section] 1538.5
. . . . The following requirements apply in addition to those specified in those rules: [¶]
1. List of Items to be Suppressed or Returned: [¶] The moving party shall include a
complete itemized list of the specific items of property or other matters sought to be
suppressed or returned. A general request to suppress or return ‘all evidence seized,’
without greater specificity, is not sufficient and shall be deemed an abandonment of the
motion. Only the items listed in the motion will be considered by the court for
suppression or return unless it is established the newly identified item could not
reasonably be identified before the motion was filed. [¶] 2. Specification of Factual and
Legal Basis for Motion: [¶] The moving party’s memorandum of points and authorities
shall identify the specific legal and factual basis and cite the specific authority which will
be offered to support the claim the search or seizure was defective. Failure to identify the
specific legal and factual basis for the claim will be deemed a concession the search
and/or seizure was lawful and will result in summary denial of the motion. [¶] 3.
Specification of Intended Witnesses: [¶] Moving and responding parties shall specify on
the first page of the notice of motion or response the name of the witnesses, if any, they
intend to call at the hearing. [¶] 4. Copy of Search Warrant, Affidavit, and Inventory:
[¶] If relevant to the motion, legible copies of the search warrant, affidavit in support of
the warrant, and return and inventory shall be appended to the moving papers. [¶] 5.
Stipulation to Transcript of Preliminary Examination Superior Court: [¶] When any
party is unwilling to stipulate to the transcript of the preliminary examination or grand
jury hearing being received into evidence (supplemented by other testimony and
argument of counsel, as needed), that fact shall be stated on the first page of the notice of
motion or response. Failure to so indicate shall be deemed a stipulation to the admission
of the transcript into evidence.”



                                             14
exclusion is mandated by the federal Constitution. (People v. Banks (1993) 6 Cal.4th
926, 934; In re Lance W. (1985) 37 Cal.3d 873, 896.)
       That the trial court mistakenly thought its local rules required a written response
and that the failure to file a written response was sanctionable does not aid defendant
here. The trial court appropriately denied defendant’s motion to suppress the evidence
found in the backpack.
                                     DISPOSITION
       The judgment is affirmed.


                                                        MURRAY                , J.


We concur:


      BLEASE                , Acting P. J.


      HOCH                  , J.




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