Filed 10/20/15 P. v. Mixon 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                          H041097
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1350518)

         v.

SEQUOIA S. MIXON,

         Defendant and Appellant.



                                              I. INTRODUCTION
         After her motion to suppress was denied, defendant Sequoia S. Mixon was
convicted by jury of bringing a controlled substance into jail (Pen. Code, § 4573)1 and
possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)). The trial
court suspended imposition of sentence and placed defendant on probation.
         On appeal, defendant contends that the trial court erred by denying her motion to
suppress evidence because she was detained without reasonable suspicion of criminal
activity. For reasons that we will explain, we will affirm the order of probation and order
the correction of a clerical error in the sentencing minutes.




         1
             All further statutory references are to the Penal Code unless otherwise indicated.
                II. FACTUAL AND PROCEDURAL BACKGROUND
       A. Evidence at the Motion to Suppress
       San Jose Police Officer Jonathan Valverde testified about defendant’s arrest and
as an expert in prostitution and solicitation. In December 2012, around 11:30 p.m.,
Officer Valverde was driving a patrol car by himself when he looked to his left and saw
three or four people standing at the corner of two streets. The area was dark without
many street lights and the officer could not determine who the people were. The area
included a lot of hotels and was known for prostitution. The officer had previously been
assigned to a prostitution suppression unit for several hours on approximately six or
seven occasions, and he had assisted in arrests for prostitution, or solicitation for
prostitution, within a block of the area. At the particular corner where the people were
standing, there was a used car dealership that was closed and a hotel. Within a half mile
of the area there were Wendy’s and Denny’s restaurants that were open, and a liquor
store that might have been open.
       The officer made a U-turn and drove back towards the corner, but the people had
proceeded down another street. The officer drove down that street and saw the people on
the sidewalk. He parked his car near them, approximately a car length from the sidewalk
and in the opposite direction of traffic. The officer’s car would have blocked oncoming
traffic “[i]f there was some.” The officer did not block the path of the people, nor did he
activate any emergency lights. He used one spotlight on his car to illuminate the area and
to get a better view of the individuals’ hands. The spotlight was not shining directly in
the individuals’ faces.
       Upon parking his vehicle, the officer observed that the group consisted of three
women, including defendant. The officer exited his vehicle and “casually walk[ed] over
to them.” The officer was wearing a uniform and a utility belt that had a firearm,
handcuffs, and a Taser. He did not have any weapons out.



                                              2
       The weather was cold that night. The officer observed that the women were
wearing “really revealing” clothes. Defendant was wearing really tight short shorts, a
bra, a blouse that did not cover her whole upper body, fishnets, and a small jacket.
       The officer did not see defendant or the other two women soliciting customers.
He “tr[ied] to engage in a conversation with them” and asked them what they were doing.
At the time, defendant and one of the other women were walking away while the third
woman was “kind of facing” the officer. Defendant turned around after a few steps. The
women told the officer that they were just walking.
       As the officer engaged the women in conversation, the officer was calm and used
a monotone voice. He did not give any orders to the women or make any demands. The
women were talkative, open, and very cooperative. The officer asked if they had been
arrested before and specifically asked if they had been arrested for prostitution. The
women acknowledged that they had previously been arrested for prostitution. The officer
asked whether anyone had an outstanding warrant and they all responded in the negative.
The officer then asked for identification, but not all of the women had identification.
       The officer contacted police dispatch for a records search. He learned that
defendant had two outstanding warrants. The officer subsequently arrested defendant for
the warrants. While defendant was being arrested, a police sergeant arrived. The
incident, from the time Officer Valverde encountered the women to the time he
confirmed there was a bench warrant for defendant, lasted approximately 13 minutes.
Officer Valverde ultimately seized drugs from defendant.
       B. Charges
       Defendant was charged by information with bringing a controlled substance into
jail (§ 4573; count 1) and possessing a controlled substance (Health & Saf. Code,
§ 11377, subd. (a); count 2).




                                             3
       C. Suppression Motion
       Defendant filed a motion to suppress “evidence and observations and fruits thereof
obtained as a result of her illegal search and/or seizure and arrest” on the grounds that her
Fourth Amendment rights were violated when the police acted without a warrant in
December 2012. The prosecution filed opposition to the motion, arguing that the
officer’s encounter was consensual and that, even if it was not, the officer had reasonable
suspicion to detain defendant to investigate whether she was loitering with the intent to
commit prostitution (§ 653.22). The prosecution further argued that the arrest was
justified because defendant had two outstanding arrest warrants.
       At the hearing on the motion, defendant argued that a detention occurred prior to
her arrest because a reasonable person would not believe that he or she was free to leave.
Defendant referred to the officer parking close to her and obstructing traffic, the officer’s
use of a spotlight, the officer being armed, the officer posing questions regarding her
legal status and identification, and another officer arriving on scene. Defendant further
argued that the officer did not have reasonable suspicion to detain her based solely on her
appearance and the fact that she was in an area known for prostitution. Defendant argued
that the officer never saw her or the other women soliciting customers.
       The prosecution argued that the encounter was consensual. According to the
prosecution, the officer approached defendant and the other two women without haste
and spoke calmly. Defendant chose to walk back and talk to the officer. Further, the
women’s response that they were just walking “did not make sense” based on where the
women were standing and the businesses that were closed in the area. The prosecution
also argued that there was reasonable suspicion that defendant was loitering with the
intent to commit prostitution. (§ 653.22.) According to the prosecution, defendant was
“scantily clad” on a cold night in an area known for prostitution where few businesses
were open. Defendant was also walking in a direction away from any of the open
businesses, such as the hotel, liquor store, and restaurants.

                                              4
       The trial court denied the motion to suppress. The court found that the encounter
was consensual up to the point of the arrest. The court explained: “The officer
approached. There’s no evidence that he used the authority or color of authority to [rise]
to the level of a detention here. No voice was raised. No weapons were drawn. It’s a
casual approach, a casual tone of voice.” The court further stated that “the nature of the
conversation” also did not indicate a detention. The court observed that the warrant
check led to the arrest.
       The trial court further found that, even if the encounter was not consensual, there
was a “reasonable articulable suspicion for a detention.” The court explained that the
officer had served on a prostitution suppression unit multiple times, had been involved in
arrests within a block of the area, and thus was aware that the location was known for
prostitution. In addition, it was late at night, defendant and the others were near an empty
lot, and the nearby businesses were not open. Further, defendant’s clothing on a cold
night “contribute[d] to the articulable suspicion that loitering for prostitution [was]
occurring.”
       D. Verdicts and Sentence
       After a trial, a jury found defendant guilty of bringing a controlled substance into
jail (§ 4573; count 1) and possessing a controlled substance (Health & Saf. Code,
§ 11377, subd. (a); count 2). On May 30, 2014, the trial court suspended imposition of
sentence and placed defendant on probation for three years with various terms and
conditions, including an eight-month jail term, which was deemed satisfied. The court
imposed various fines and fees, including a restitution fine of $240 (§ 1202.4, subd. (b)),
an administrative fee of 10 percent (§ 1202.4, subd. (l)), and a suspended probation
revocation restitution fine in the same amount as the restitution fine (§ 1202.44).2

       2
        The minutes of the hearing do not reflect the imposition of the administrative fee
of 10 percent on the restitution fine (§ 1202.4, subd. (l)), or the imposition of the
(continued)

                                              5
                                     III. DISCUSSION
        Defendant contends the trial court erred by denying her motion to suppress. She
argues that the officer’s “manner of approach with his car” was coercive and that she was
detained when the officer exited his patrol car. She further argues that, even if she was
not detained at the point the officer exited his car, she was detained when the officer
“disregarded her answer that she was just walking and began questioning her about her
legal status.” Defendant also contends that the officer did not have a reasonable
suspicion that she was loitering with the intent to commit prostitution.
        The Attorney General contends the encounter was consensual and that reasonable
suspicion supported any detention.
        A. Standard of Review
        “The standard of appellate review of a trial court’s ruling on a motion to suppress
is well established. We defer to the trial court’s factual findings, express or implied,
where supported by substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362; accord, People v.
Brown (2015) 61 Cal.4th 968, 975 (Brown).)
        B. Analysis
        The Fourth Amendment prohibits unreasonable 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. Celis (2004) 33 Cal.4th 667,
673.)
        “[A] detention does not occur when a police officer merely approaches an
individual on the street and asks a few questions. [Citation.] As long as a reasonable


suspended probation revocation restitution fine (§ 1202.44). We will order the minutes
corrected accordingly.


                                              6
person would feel free to disregard the police and go about his or her business, the
encounter is consensual and no reasonable suspicion is required on the part of the officer.
Only when the officer, by means of physical force or show of authority, in some manner
restrains the individual’s liberty, does a seizure occur. [Citations.] ‘[I]n order to
determine whether a particular encounter constitutes a seizure, a court must consider all
the 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.’ [Citation.] This test assesses
the coercive effect of police conduct as a whole, rather than emphasizing particular
details of that conduct in isolation. [Citation.] 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.
[Citations.]” (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)
       “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. [Citation.]” (Manuel G., supra, 16 Cal.4th at p. 821.)
“The test is ‘not whether the citizen perceived that he [or she] was being ordered to
restrict his [or her] movement, but whether the officer’s words and actions would have
conveyed that to a reasonable person.’ [Citation.]” (People v. Garry (2007) 156
Cal.App.4th 1100, 1106 (Garry).) The courts have placed “great significance on how the
officers physically approached their subjects,” as well as considered the officer’s words
and verbal tones. (Id. at p. 1110.) “Furthermore, while cases have not found the use of a
spotlight alone to constitute a detention [citations], they also indicate its use should be
considered in determining whether there was a show of authority sufficient to establish
one occurred. [Citations.]” (Id. at p. 1111.)



                                                7
       The evidence regarding the circumstances of the encounter in this case was as
follows. The officer observed three or four people at nighttime standing on a poorly lit
corner in an area known for prostitution. The officer ultimately drove his patrol car to the
area where defendant was located, parked his patrol car one car length away from the
sidewalk, and shined his spotlight in the area where defendant and the other two women
were walking or standing. He did not use his emergency lights, did not draw a weapon,
and did not have another officer with him. As he “casually walk[ed] over to” the women,
he made no verbal command or request. The officer did nothing to prevent defendant and
the other women from leaving the area, and indeed defendant was walking away from the
officer when the officer initially started talking to them. As the officer engaged
defendant and her companions in conversation, he was calm and used a monotone voice.
The officer observed that all three women were wearing “really revealing” clothing.
Defendant in particular was wearing short shorts, a bra, a blouse that did not cover her
whole upper body, fishnets, and a small jacket. The officer asked what they were doing,
and the women responded that they were walking. During the ensuing conversation, the
officer asked whether they had been arrested for prostitution, whether they had an
outstanding warrant, and for identification. Defendant and her companions were
talkative and cooperative with the officer. The officer did not give any order to the
women or make any demand. Under the circumstances surrounding the encounter, we
believe the officer’s actions did not constitute a show of authority so intimidating as to
communicate to any reasonable person that he or she was “ ‘not free to . . . terminate the
encounter.’ ” (Manuel G., supra, 16 Cal.4th at p. 821.)
       Defendant contends that the officer’s use of a spotlight, combined with his manner
of driving and parking, and his exiting a patrol car in full uniform with a gun and Taser
visible, “would signal to a reasonable person that she was not free to leave” at the time
the officer exited his car.



                                              8
       As we stated above, the use of a spotlight alone does not turn a consensual
encounter into a detention. (Garry, supra, 156 Cal.App.4th at p. 1111; People v. Perez
(1989) 211 Cal.App.3d 1492, 1496 (Perez).) “While the use of high beams and spotlights
might cause a reasonable person to feel himself [or herself] the object of official scrutiny,
such directed scrutiny does not amount to a detention. [Citations.]” (Perez, supra, at
p. 1496.) In this case, although the officer used a spotlight to illuminate the area, he
ultimately approached the women on foot and in a casual manner, and he engaged in a
conversation with them without giving any order or making any demand.
       Parking a patrol car in a traffic lane, without more, also does not lead to a
conclusion that a detention has occurred. In People v. Jones (1991) 228 Cal.App.3d 519,
cited by defendant, the officer pulled his patrol car to the wrong side of the road, parked
diagonally against the traffic, and directed the defendant, who was walking away, to stop.
The appellate court found that the officer’s conduct, taken as a whole, constituted a
detention. (Id. at p. 523.) “A reasonable man does not believe he is free to leave when
directed to stop by a police officer who has arrived suddenly and parked his car in such a
way as to obstruct traffic.” (Ibid.) In contrast, in the instant case the officer did not
direct defendant to stop, nor did the he otherwise issue any verbal command as he
attempted to engage defendant and the other women in a conversation.
       Moreover, whether an officer is wearing a uniform and is visibly armed are factors
that “have little weight in the analysis” for determining whether a seizure has occurred.
(United States v. Drayton (2002) 536 U.S. 194, 204 (Drayton); accord, People v.
Zamudio (2008) 43 Cal.4th 327, 346.) “Officers are often required to wear uniforms and
in many circumstances this is cause for assurance, not discomfort. Much the same can be
said for wearing sidearms. That most law enforcement officers are armed is a fact well
known to the public. The presence of a holstered firearm thus is unlikely to contribute to
the coerciveness of the encounter absent active brandishing of the weapon.” (Drayton,
supra, at pp. 204-205.)

                                               9
       Defendant further contends that a detention occurred at the point when the officer
“disregarded her answer that she was just walking and began questioning her about her
legal status.” In making this contention, defendant primarily relies on Garry, supra,
156 Cal.App.4th 1100.
       We are not persuaded by defendant’s argument. “Law enforcement officers do
not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by
approaching individuals on the street or in other public places and putting questions to
them if they are willing to listen. [Citations.] Even when law enforcement officers have
no basis for suspecting a particular individual, they may pose questions[ and] ask for
identification . . . provided they do not induce cooperation by coercive means. [Citation.]
If a reasonable person would feel free to terminate the encounter, then he or she has not
been seized.” (Drayton, supra, 536 U.S. at pp. 200-201; accord, Brown, supra, 61
Cal.4th at p. 974.) “It is not the nature of the question or request made by the authorities,
but rather the manner or mode in which it is put to the citizen that guides us in deciding
whether compliance was voluntary or not.” (People v. Franklin (1987) 192 Cal.App.3d
935, 941.)
       In Garry, the police officer was in his patrol car in a “high-crime, high-drug area.”
(Garry, supra, 156 Cal.App.4th at p. 1103.) For a few seconds, the officer watched the
defendant standing next to a parked car. (Id. at pp. 1103-1104.) After illuminating the
defendant with the spotlight on the patrol car, the officer exited his vehicle and “ ‘briskly’
walked 35 feet in ‘two and a half, three seconds’ directly to [the defendant] while
questioning him” about whether he was on probation or parole, even though the
defendant had indicated that he was merely standing outside his home. (Id. at p. 1111.)
       The Court of Appeal determined that the police officer’s actions “taken as a
whole, would be very intimidating to any reasonable person.” (Garry, supra, 156
Cal.App.4th at p. 1111.) The court believed that a detention had occurred even though
the officer did not make any verbal commands. The court explained that “[n]o matter

                                             10
how politely [the officer] may have stated his probation/parole question, any reasonable
person who found himself in defendant’s circumstances, suddenly illuminated by a police
spotlight with a uniformed, armed officer rushing directly at him asking about his legal
status, would believe themselves to be ‘under compulsion of a direct command by the
officer.’ [Citation.] [The officer’s] actions set an unmistakable ‘tone,’ albeit largely
through nonverbal means, ‘indicating that compliance with the officer’s request might be
compelled.’ [Citation.]” (Id. at p. 1112.)
       The record in this case reflects that the tone set by the officer during the encounter
with defendant was much different than that set by the “aggressive” and “intimidating”
actions of the officer in Garry. (Garry, supra, 156 Cal.App.4th at p. 1112.) In contrast
to the officer in Garry, who “all but ran directly at” the defendant and “pointedly
inquired” about the defendant’s legal status (id. at pp. 1112, 1111), the record in the
present case reflects that Officer Valverde “casually walk[ed] over” to defendant and her
companions and calmly engaged them in conversation in a monotone voice. He asked
what they were doing, about arrests and warrants, and for identification. Nothing in the
record suggests that the officer used an authoritative tone, or that he engaged in any
nonverbal coercive conduct in questioning defendant. “There was no application of
force, no intimidating movement, no overwhelming show of force, no brandishing of
weapons, no blocking of exits, no threat, no command, not even an authoritative tone of
voice.” (Drayton, supra, 536 U.S. at p. 204.) Where cooperation was not induced by
coercive means, merely approaching a person and asking questions does not amount to an
involuntary detention. (Id. at pp. 200-201; Manuel G., supra, 16 Cal.4th at p. 821.)
       In sum, after considering all the circumstances surrounding the encounter with
defendant, we do not believe that the effect of the officer’s conduct as a whole was
coercive. (Manual G., supra, 16 Cal.4th at p. 821.) We therefore conclude that the trial
court properly denied defendant’s motion to suppress based on a determination that the
officer’s encounter with defendant was consensual. In view of our conclusion, we do not

                                             11
reach the issue of whether the officer had reasonable suspicion that defendant was
loitering with the intent to commit prostitution.
                                   IV. DISPOSITION
       The order of probation is affirmed. The minutes of the May 30, 2014 sentencing
hearing are ordered corrected to reflect the trial court’s imposition of a $24 administrative
fee on the restitution fine (Pen. Code, § 1202.4, subd. (l)) and a $240 suspended
probation revocation restitution fine (Pen. Code, § 1202.44).




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P. J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
GROVER, J.




People v. Mixon
H041097
