Filed 1/22/15 P. v. Castro CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065136

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD250189)

SERGIO LOPEZ CASTRO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Joseph P.

Brannigan and Eugenia Eyherabide, Judges. Affirmed.

         Joshua H. Schraer, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Arlene A. Sevidal and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and

Respondent.


         Sergio Castro was detained by the police after being observed late at night in a

commercial parking lot. During the encounter he discarded a bag of cocaine. He filed a
motion to suppress the discarded cocaine retrieved by the police based on a claim that he

was unlawfully detained. The motion was denied, and he thereafter pled guilty to

possession of cocaine. On appeal, he argues his motion to suppress should have been

granted. He also argues a $100 attorney fee order must be stricken or the case remanded

for a hearing on this matter. We reject these contentions and affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND

       In his motion to suppress (Pen. Code,1 § 1538.5), defendant argued he was

detained by the police with no reasonable suspicion that he was engaged in criminal

activity. The motion was adjudicated at the preliminary hearing, where the People called

one of the arresting police officers, Jill Pimienta, to testify.

                                      Officer's Testimony

       Officer Pimienta testified that at about 12:30 a.m. on August 15, 2013, she and her

partner, Officer Bell, were patrolling an area of the city where there had been problems

with residential burglaries, car thefts, vehicle tampering, and narcotics activity. As they

approached a parking lot of an auto repair business where there had been recent narcotics

activity, Officer Bell (who was driving) told Officer Pimienta that a man (later identified

as defendant) was "standing by the vehicles" in the parking lot. As the officers turned

into the parking lot, they saw defendant walking "through the lot, kind of leaving where

there were a few cars parked right there in the lot." Defendant then entered an alley that




1      Subsequent unspecified statutory references are to the Penal Code.
                                                2
was connected to the parking lot and walked towards an apartment complex. The officers

drove towards defendant, who was now inside the gate of the apartment complex.

       Officer Pimienta testified she thought defendant could have been tampering with

the parked cars, and also because of the crime statistics in the area she wanted to confirm

whether he lived at the apartment complex and that he was not involved in a burglary.

When asked to describe the aspects of defendant's behavior that caused her to suspect he

was involved in criminal activity, Officer Pimienta testified "walking back and forth in

the alley, hanging out by the cars." When questioned further, she explained she did not

see him "hanging out by the vehicles" for an "extended period of time," but Officer Bell

saw him "standing by the vehicles" and then they saw him walking away from the cars.

The officers did not know if he had "just paused" by the cars, or if he had been "hanging

[out] for a while," and they did not see him looking inside or touching the vehicles.

       When the patrol vehicle approached defendant at the apartment gate, Officer

Pimienta got out of the car with the intent to detain him. She shined her flashlight on him

and "asked" or "told" him to come and speak with them. Defendant did not comply with

her request. Instead, he "stood there" and "shoved his hand into his shorts pocket."

Based on her experience as an officer, this behavior signaled to Officer Pimienta that

defendant might be concealing something in his pocket, such as a weapon.

       Officer Pimienta "went and grabbed" defendant's hand and told him to bring his

hand out slowly. Defendant complied, and Officer Pimienta handcuffed him for purposes

of officer safety until they determined whether he had a weapon or was involved in



                                             3
criminal activity. Defendant at first "slightly pulled away" while she was handcuffing

him, but then "quickly complied."

       As she handcuffed defendant, Officer Pimienta saw that he had a tissue in his hand

and she felt him "flip his wrist" as if he was throwing something. About two feet from

where he was handcuffed, Officer Pimienta found a small plastic bag containing cocaine.

                          Courts' Rulings on Suppression Issue

       At the hearing on defendant's suppression motion, the prosecutor did not dispute

that when the police contacted defendant, they engaged in a detention rather than a

consensual encounter. The magistrate agreed that a detention had occurred because the

officer shined a light on defendant and "order[ed] him to stop."

       The parties disputed, however, whether the detention was supported by a

reasonable suspicion of criminal activity. Defense counsel maintained there was no

reasonable suspicion because defendant was merely seen standing next to a vehicle and

then walking to an apartment complex; the police did not know how long he been there

and did not see him looking inside the vehicles; he was in a residential area where people

commonly park and walk to their homes and he could have been merely engaging in this

activity; he did not flee from the police; and the fact the neighborhood was a high crime

area could not alone justify the detention. Arguing the totality of circumstances showed a

reasonable suspicion, the prosecutor stated defendant was in a high crime area; the

parking lot was known for narcotics activity; defendant had no business being in the

parking lot after midnight since the auto repair business was closed and this was not an



                                             4
area where residents parked; and when the police arrived they observed defendant

engaging in erratic movements.

       As an alternative basis for its position the cocaine should not be suppressed, the

prosecution also contended that regardless of the validity of the detention, the evidence

was admissible because defendant voluntarily discarded the evidence in plain view.

Defendant argued the evidence should not be admitted on an abandonment theory

because the officer's conduct of grabbing his hand indicated a search was inevitable.

       After hearing the officer's testimony and counsel's arguments, the magistrate

concluded the detention was supported by a reasonable suspicion of criminal activity.

The magistrate recognized the issue was a close one, but found there was a reasonable

suspicion based on the high crime area and the "rather furtive conduct" of the defendant

"standing by a car for some unknown reason." As to the prosecutor's alternative

argument based on voluntary abandonment of the cocaine, the magistrate found that

when defendant put his hand in his pocket, the officer was justified in grabbing

defendant's hand for safety purposes, and defendant's subsequent act of discarding the

cocaine was not the fruit of the detention.

       After his unsuccessful suppression motion, defendant filed a motion to dismiss the

information (§ 995) based on his claim that the magistrate erred in denying his

suppression motion. The trial court denied the motion, finding the magistrate reasonably

concluded there was a reasonable suspicion of criminal activity based on defendant's

conduct of standing by a parked car at 12:30 a.m. in a high crime area and then moving

toward the alley. The court emphasized that defendant was not seen just walking through

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the parking lot, but rather was seen standing by a car before he moved away as the police

approached. The trial court also found no error in the magistrate's rulings that when

defendant put his hand in his pocket it was reasonable for the officer to grab his hand for

safety purposes, and that even if the initial detention was illegal, the officers could

properly seize the cocaine because defendant was not required to take the cocaine out of

his pocket but voluntarily chose to do so to try to get rid of it.

                                  Guilty Plea and Sentence

       Defendant was charged with possession of cocaine and three prior prison term

enhancements. He pled guilty to cocaine possession and the prosecution dismissed the

balance of the information. The court placed him on three years of formal probation

under Proposition 36 drug treatment diversion (§ 1210) and ordered him to pay various

fines and fees including a $100 fee to contribute to the cost of his legal representation.

                                        DISCUSSION

                              I. Denial of Suppression Motion

                                   A. Standard of Review

       On appeal from the denial of a suppression motion, we defer to the magistrate's

factual findings if supported by substantial evidence. (People v. Hua (2008) 158

Cal.App.4th 1027, 1033.) Under the substantial evidence standard, "we must draw every

legitimate inference in favor of the magistrate's ruling and cannot substitute our

judgment, on the credibility or weight of the evidence, for that of the magistrate."

(People v. Woods (1993) 12 Cal.App.4th 1139, 1147-1148.) Once the historical facts

have been established, we then apply the law to make an independent determination on

                                               6
the constitutionality of the seizure. (People v. Brendlin (2008) 45 Cal.4th 262, 268;

People v. Hua, supra, at p. 1033.)

                         B. Reasonable Suspicion for Detention

                                     1. Governing Law

       Although the police may approach an individual on the street and ask questions

without triggering Fourth Amendment constitutional protections, the police may not

detain the person without reasonable, objective grounds for doing so. (People v. Hughes

(2002) 27 Cal.4th 287, 328; In re Manuel G. (1997) 16 Cal.4th 805, 821.) A detention

occurs if the police conduct, which can include language and tone of voice, would have

communicated to a reasonable person that the person was not free to decline the officer's

request or otherwise terminate the encounter. (In re Manuel G., supra, at p. 821.)

       To justify a detention, the police must have a reasonable suspicion the person

detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224,

230-231.) A reasonable suspicion requires a showing of specific and articulable facts that

would cause a reasonable officer in a like position, drawing on the officer's training and

experience, to believe criminal activity has occurred or is about to occur. (In re Tony C.

(1978) 21 Cal.3d 888, 893.) Reasonable suspicion is something more than an inchoate

and unparticularized suspicion or hunch, but something less than the fair probability

required for probable cause. (People v. Bennett (1998) 17 Cal.4th 373, 387.)

       The "reasonable suspicion standard . . . is not a particularly demanding one, but is,

instead, 'considerably less than proof of wrongdoing by a preponderance of the

evidence.' " (People v. Letner and Tobin (2010) 50 Cal.4th 99, 146.) The courts consider

                                             7
the totality of the circumstances to determine whether there was a particularized and

objective basis for the officer's suspicion. (People v. Souza, supra, 9 Cal.4th at p. 230.)

Even if the circumstances are consistent with innocent as well as criminal activity, the

police may properly detain an individual to resolve the ambiguity; i.e., " 'to quickly

determine whether they should allow the suspect to go about his business or hold him to

answer charges.' " (In re Tony C., supra, 21 Cal.3d at p. 894; Letner, supra, at pp. 146-

147.)

                                        2. Analysis

        On appeal, the Attorney General contends defendant was not detained until the

officer grabbed his hand after defendant shoved it into his pocket. The magistrate

concluded a detention occurred when the officer shined the light on defendant and

ordered him to stop. Because the magistrate observed the officer's demeanor when

describing how she first contacted defendant, we defer to the magistrate's finding that a

detention occurred at this point. The magistrate could reasonably assess that the officer

used a commanding tone of voice that communicated that defendant was not free to

leave, and hence the police were not merely seeking to question defendant in a

consensual encounter. (People v. Roth (1990) 219 Cal.App.3d 211, 215.)

        We reject the Attorney General's contention that no detention occurred because

defendant did not comply with the officer's direction to approach the police to talk.

Although the high court has determined that a fleeing defendant is not seized for Fourth

Amendment purposes (California v. Hodari D. (1991) 499 U.S. 621, 623-629), defendant



                                              8
did not flee. Rather, notwithstanding his failure to come over to the officers, defendant

complied with the assertion of authority by remaining stationary.

       As to the magistrate's finding that there was a reasonable suspicion to justify the

detention, drawing all inferences in favor of the ruling, the record supports this finding.

As noted by the trial court when denying the dismissal motion, the police did not merely

see defendant walking through the parking lot, but rather saw him standing by the cars in

the lot. The lot was known to be a site of recent narcotics activity, and the neighborhood

in general had been having problems with car thefts, vehicle tampering, and burglary.

The magistrate could reasonably infer that because it was after midnight the business

would be closed, and an innocent person would have no reason to be standing by cars

parked in a lot of a closed auto repair business. (Contrast People v. Roth, supra, 219

Cal.App.3d at pp. 213, 215 [no reasonable suspicion for detention of defendant merely

walking through parking lot of closed business in early morning hours].) Also, the

magistrate could consider that when the officers approached in their vehicle, defendant

started walking away through an alley and into an apartment complex, which could

suggest he did not want the officers to check on what he was doing in the closed

business's parking lot.

       In short, the facts described by the officer did not merely reflect a person standing

by cars and then walking away in a residential neighborhood, but rather reflected a

person standing in a commercial lot that would not normally be visited by people in the

early morning hours and that was identified as a location of recent narcotics activity.

These circumstances are sufficient to invoke a reasonable suspicion that defendant had no

                                              9
legitimate purpose for standing in the parking lot and he was engaging in criminal

activity, thus allowing the police to lawfully detain him to ascertain whether their

suspicions were accurate.

       To support his challenge to the detention, defendant maintains the auto repair

shop's parking lot also "provided parking for the residents of the apartment complex and

their visitors." He fails to provide a record citation supporting this claim, and we found

no evidence of this in our review of the record. Drawing all reasonable inferences in

favor of the court's ruling, we assume the auto repair shop's parking lot was solely for the

use of the patrons of the auto repair shop.

       Defendant also cites cases in which the courts found no reasonable suspicion

under circumstances where the defendants were detained at night upon being seen in

commercial parking lots known for narcotics activity. (People v. Aldridge (1984) 35

Cal.3d 473, 476-480; People v. Wilkins (1986) 186 Cal.App.3d 804, 807, 811.) The

California Supreme Court has recognized that Aldridge's analysis is no longer controlling

because it is premised on the state Constitution and predates the enactment of the "Truth-

in-Evidence" constitutional provision that limits application of the exclusionary rule to

federal constitutional violations. (People v. Souza, supra, 9 Cal.4th at pp. 232-233, 240-

242.) In any event, in both Aldridge and Wilkins, the defendants were in the parking lots

during hours that the businesses would typically be open. (Aldridge, supra, at pp. 476,

478 [liquor store at 10:15 p.m.]; Wilkins, supra, at pp. 807, 811 [convenience store at

10:18 p.m.].) In contrast here, the magistrate could reasonably deduce that because an



                                              10
auto repair shop is typically not open after midnight, defendant's presence at this location

was suspicious.

       Because there was a reasonable suspicion to detain defendant, we need not discuss

whether the cocaine was otherwise admissible under attenuation principles.

                                  II. Attorney Fees Order

       Defendant argues the $100 attorney fees order must be stricken, or the case

remanded for a hearing, because the court (1) did not orally pronounce that the amount of

the fees was $100, and (2) did not hold a noticed hearing on his ability to pay the fees.

                                      A. Background

       After the trial court denied defendant's motion to dismiss the information, the

court held a combined change of plea hearing and sentencing hearing. The record

reflects that before this hearing, the parties and the court participated in an in-chambers

discussion regarding the case. Thereafter, the hearing was convened, during which the

court accepted defendant's guilty plea and then placed him on Proposition 36 drug

treatment probation under section 1210. During the hearing the court referred to the

various forms signed by defendant, including the guilty plea form and a form entitled

"PC1210 Judgment Minutes Addendum" (the Addendum form). The court asked

defendant if he had ample time to review the change of plea forms with his attorney and

if he understood them, and defendant answered yes. At the sentencing portion of the

hearing, the court asked defendant if his attorney had reviewed with him all the terms and

conditions set forth in the Addendum form that the court was about to impose, and

defendant answered yes. The court then stated that it "will impose all of these boxes

                                             11
from the white PC1210 form that we just discussed" and asked defendant "Sir, do you

accept probation on those terms and conditions?" Defendant answered yes.

       The Addendum form lists numerous matters that can be imposed in conjunction

with the probation grant, with boxes that can be marked to indicate the particular item is

imposed in the case. One of the items on the Addendum form states: "Pay attorney Fee

and Probation costs as determined by the Court." The bottom of the form was signed by

defendant, with an attestation stating: "I have read, reviewed and understand the above-

initialed information." The minute order specifies that the amount of attorney fees owed

is $100.

                                        B. Analysis

       Section 987.8, subdivision (b) provides that "the court may, after notice and a

hearing, make a determination of the present ability of the defendant to pay all or a

portion of the cost" of the legal assistance provided to the defendant. At the hearing the

defendant has the right to be heard, to present evidence, and to a written statement of

findings. (§ 987.8, subd. (e).) When evaluating ability to pay, the court may consider

such factors as defendant's present financial position, his reasonably discernable future

financial position or ability to obtain employment in the next six months, and any other

relevant factors; however, absent a finding of unusual circumstances a defendant

sentenced to prison should be determined not to have a future financial ability to pay.

(§ 987.8, subd. (g)(2).) If the court determines the defendant has the present ability to

pay all or part of the cost of the provided legal assistance, the court "shall set the amount

to be reimbursed and order the defendant to pay the sum to the county in the manner in

                                             12
which the court believes reasonable and compatible with the defendant's financial

ability." (§ 987.8, subd. (e).)

       To the extent defendant asserts he was not provided a noticed hearing, the

contention fails. When construing the attorney fee recoupment statute as well as a similar

statute concerning probation cost recoupment, in People v. Phillips (1994) 25

Cal.App.4th 62 the court held that although the statutes afforded the defendant "various

procedural rights at the hearing, this cannot be read as excluding a more informal

procedure with a defendant's acquiescence." (Id. at pp. 69-76; see People v. Saunders

(1993) 5 Cal.4th 580, 589-590 [party has duty to request compliance with procedural

rights before trial court].) Phillips also concluded that a reference in the probation report

to a possible attorney fee order, followed by defense counsel's failure to raise any claim

of lack of notice at the hearing, reflected that the defendant was provided adequate notice.

(Phillips, supra, 25 Cal.App.4th at pp. 66, 72-75.) Here, the Addendum form expressly

states payment of attorney fees is required as determined by the court; defense counsel

reviewed the Addendum form with defendant before the hearing; and defendant was

queried about the Addendum form at the hearing and stated he accepted its terms with no

mention of lack of notice or request for further adjudication. These circumstances reflect

defendant was provided adequate notice and a sufficient hearing on the matter.

       Nevertheless, defendant asserts the $100 fee should be stricken because the court's

oral decision controls over the written minute order, and the court did not orally specify

the $100 amount at the hearing. The contention is unavailing because although the

court's oral pronouncements control when there are discrepancies between the oral

                                             13
statements and a minute order (People v. Mesa (1975) 14 Cal.3d 466, 471), there are no

such discrepancies here. At the hearing the court expressly imposed all the terms listed

on the Addendum form, which included the attorney fee payment requirement. This is

not a case where the court failed to order a fee listed in the minute order, or ordered an

amount that differed from the amount in the minute order. The minute order simply

specifies the amount of the fees that were orally ordered by the court when it imposed the

terms in the Addendum form without identifying an amount. On this record, there is no

suggestion the minute order does not comport with the amount of fees the court intended

to impose.

       If the fee is not stricken, defendant posits the case should be remanded for a

hearing. Under the circumstances of this case we conclude this is not necessary.

Although the $100 amount of the fee was not explicitly referenced until the issuance of

the court's minute order, the record shows the disposition of the case was discussed in

chambers, in consultations between defendant and his counsel, and at the sentencing

hearing. At the sentencing hearing defense counsel did not request that the court specify

the amount of the attorney fees, and via the minute order the court imposed the relatively

small amount of $100. Based on the small amount of the fee and the showing that

defendant had a full opportunity to discuss and/or ask questions about the fee, the court's

failure to reference the amount at the sentencing hearing does not alone reflect a

reversible deficiency requiring a new hearing. (Contrast People v. Prescott (2013) 213

Cal.App.4th 1473, 1476 [remand warranted when defendant "did not have either notice of

a hearing or a hearing itself"].)

                                             14
       As to defendant's ability to pay, although defendant had a right to a written

statement of findings, there is nothing in the statutory scheme as it pertains to defendant

that compelled the court to make express oral or written findings absent a request by

defendant. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 [express finding on

ability to pay attorney fees not required unless defendant is sentenced to prison so as to

trigger statutory presumption of inability to pay absent a finding of unusual

circumstances]; People v. Phillips, supra, 25 Cal.App.4th at pp. 71, 76 [order may be

based on implied finding of ability to pay]; see People v. Aguilar (Jan. 12, 2015,

S213571) __ Cal.4th __ [defendant forfeits appellate challenge to ability to pay absent

objection before trial court]; People v. Trujillo (Jan. 12, 2015, S213687) __ Cal.4th __

[same].) Also, we presume the court complied with its duty to consider defendant's

ability to pay when it imposed the $100 fee. (People v. Hennessey (1995) 37 Cal.App.4th

1830, 1836 [presumption that official duty is performed].)

       Thus, the order here is sustainable if there is substantial evidence supporting an

implied finding of ability to pay. (People v. Phillips, supra, 25 Cal.App.4th at p. 71;

People v. Hennessey, supra, 37 Cal.App.4th at pp. 1836-1837.) Drawing all reasonable

inferences in favor of the ruling (Phillips, supra, at pp. 71-72), the record supports this

finding. Defendant is not in prison; thus, the statutory presumption of inability to pay

attorney fees for imprisoned offenders is inapplicable here. At the time of sentencing,

defendant was 34 years old; one of his probation conditions states he should seek and

maintain full-time employment; and there has been no contention this condition is

inappropriate for defendant. Under these circumstances, showing defendant's relatively

                                             15
young age, a relatively small fee amount, and the absence of an objection to the imposed

employment requirement, the trial court could reasonably assess defendant has the ability

to pay the fee.

       For the same reasons, there is no reasonable probability a remand for further

hearing on the matter would result in a different outcome. (See People v. Valtakis (2003)

105 Cal.App.4th 1066, 1076.) We reject defendant's requests that we strike the $100

attorney fee order or remand the case for a further hearing on the matter.

                                      DISPOSITION

       The judgment is affirmed.




                                                                             HALLER, J.

WE CONCUR:



MCCONNELL, P. J.



MCDONALD, J.




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