Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. H42398
Haerle, J.
I. INTRODUCTION
At a preliminary hearing where a judge acting as magistrate denied his motion to suppress evidence (Pen. Code, § 1538.5), defendant Albert Louis Camacho was held to answer to one count of possessing cocaine for sale (Health & Saf. Code, § 11351), with allegations of four drug priors (three alleged to be priors under id., § 11370.2, subd. (a)). After that ruling was twice upheld on the same evidence, first on a motion to dismiss (Pen. Code, § 995) and then on a “renewed” motion (citing id., § 1538.5, subd. (i)), Camacho entered a changed plea of no contest in return for an indicated low term of two years in prison, with the court adding, over the prosecutor’s objection, that it would allow Camacho to remain on bail pending an appeal.
Camacho’s papers on the last suppression motion cited Penal Code section 1538.5, subdivision (i), as granting a right to “renew” the motion made at the preliminary hearing, and that was how the court treated it, reviewing what was before the magistrate. But Camacho does not explain how he had a right to a third such motion, after two denials of suppression. The Attorney General does not explain this either, yet raises no issue about it, perhaps because the negotiated plea arguably included a right to challenge the last such motion on appeal.
Sentenced on November 7, 2007, to the indicated low term (with priors stricken for sentencing purposes), and with bail allowed as indicated, Camacho appeals, challenging the denial of suppression (Pen. Code, § 1538.5, subd. (m)). We reject his challenge and affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The suppression issue arises from Hayward Police Officer Ronald Ortiz going to Smilin’ Jack’s Bar (Smilin’ Jack’s) at 1:00 a.m. on Saturday, February 25, 2006, on a report of a fight at the bar, and arresting Camacho for violating Penal Code section 647, subdivision (f) (section 647(f)). That subdivision makes it a misdemeanor to be “in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination . . ., in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence . . ., interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.” The defense conceded below that Camacho did appear to be drunk, but disputed that the officer had probable cause to believe that Camacho was unable to care for his own or others’ safety within the meaning of section 647(f).
Suppression was sought because an inventory search at the police station disclosed, in a pocket of Camacho’s jacket, what was stipulated, for purposes of the preliminary hearing and initial suppression motion, to be cocaine possessed for sale.
A. The Evidence
Testimony at the preliminary hearing came from Officer Ortiz and, for the defense, bartender Rita Brunicon, and security guard Ricardo Loma.
Ortiz.
Ortiz was a patrol officer with 19 years experience who had made hundreds of drunk-in-public arrests. Smilin’ Jack’s is open to the public. It had “a small restaurant but primarily a pool table and a bar, music, but no dancing.” There was nevertheless a “so-called dance floor area” in a room opposite the bar, 15 to 20 feet away, where there were some tables and chairs. Smilin’ Jack’s was “a known gang hangout” where a lot of fights occurred. A conditional use permit for the establishment required that no drinks be served after 1:00 a.m.
Ortiz was dispatched to the bar that night around 1:00 a.m. on a radio report of a battery or fight there between two people. He was the first responding officer and found people leaving the bar by the front and back doors, women crying, cars leaving quickly, and people “trying to leave prior to our arrival”—a normal response there. Ortiz initially contacted someone outside who had been involved in the fight; the other had already left. Officer Hutchinson arrived sometime as backup, and the two entered the bar, which was no longer crowded but still had quite a few people. Ortiz did not recall speaking with any security personnel outside. He did not order the bar shut down; nor had he ever done so before that night.
Ortiz entered the bar to look for witnesses or victims and to contact the bartenders to see if they saw what happened. Right away, he noticed Camacho standing 15 feet across from him in the dance floor area, his balance impaired and his arm leaning on a table to steady himself, swaying from side to side. Camacho vocally acknowledged their presence, his voice slurred. Ortiz meant to go speak with him but had to take his attention away to assist security, who were trying to clear the bar.
Then, as Ortiz stood at the bar speaking with a bartender, his back turned so that he could not see Camacho, Camacho walked up to the bar, behind the officers. From three or four feet away, Ortiz immediately noticed that Camacho had red, watery eyes, a strong odor of alcohol, and leaned against a chair at the bar, having trouble standing on his own. Camacho swayed four to six inches side to side. Ortiz had not seen him walk over to the bar but felt that he was under the influence and unable to care for his own safety or the safety of others. This was obvious enough to Ortiz that he did not need to perform any sobriety tests. He arrested Camacho for being drunk in public. Camacho “said something to the effect that he was getting ready to leave” but did not say anything about having called a cab.
Ortiz related that Camacho remained so unsteady at booking that it took two men to help him stay standing, but this did not reflect Ortiz’s state of mind at the time of the arrest.
Brunicon.
Rita Brunicon was one of two bartenders on duty that night; the other being Kimberly. Brunicon had worked there and known Camacho for seven years. He came in about twice a week, including most Fridays, always drank Budweisers, not mixed drinks or spirits, and always left in a cab. She recalled that he entered the bar sometime between 9:00 and 9:30 p.m. that Friday, after a DJ had begun playing music, and was dancing a lot. There was a small dance floor in a room open to the one with the horseshoe-shaped bar that she tended. Camacho sat alone at “the very beginning” of the bar, near the door. Brunicon served him two or three beers but had no idea whether Kimberly served him any. Brunicon called a cab for him shortly before he was arrested by two police officers who entered the bar.
Beyond that, Brunicon was too busy to notice much. It was a crowded night, with more than 50 patrons just in the bar area, and she and Kimberly were constantly serving drinks. She might have spoken briefly to Camacho across the bar, but was not watching him and saw no interaction between him and the officers until he was handcuffed. Brunicon was aware that the bar was being emptied (before the usual 1:30 a.m. “last call”), but she was unaware (until the preliminary hearing) that there had been a fight or that this was why the officers were there. There might have been 10 people left in the bar when he was arrested, about five minutes after the officers arrived. She did not see security taking people out or officers going through the bar. Thus she did not notice Camacho having slurred speech, bump into an officer, be unsteady on his feet, speak to the officers, hold onto anything for balance, or stagger or sway. She did think that he seemed able to care for himself, and she testified that she would not serve alcohol to someone who was too intoxicated to handle it.
By way of impeachment, Brunicon admitted serving two years in prison for an Alameda County conviction for possessing methamphetamine for sale, and having San Joaquin County convictions for selling methamphetamine and possessing marijuana for sale. She denied having a conviction for furnishing marijuana to a minor. She knew a special permit was required for dancing but did not know that alcohol could not be served after 1:00 a.m. on Fridays and Saturdays.
Loma.
Ricardo Loma had worked as a security guard Friday nights at Smilin’ Jack’s for 10 years and had gotten to know Camacho as “a regular” there on Fridays. He also knew Camacho from “years before.” Loma and two other security guards were on the job when Camacho was arrested.
There were about 80 patrons there that night when a fight erupted between two men in the area between the bar and dance floor. Loma broke it up before anyone was hurt and made them leave. Based on his experience that an incident of that magnitude there can trigger other incidents, he decided to close down the bar. He told everyone to leave and started collecting drinks and escorting people out. They typically shut down later, at 1:45 a.m., and Loma (like Brunicon) was not aware of a permit condition that they had to stop serving drinks at 1:00 a.m.
Two officers arrived within 15 minutes of the fight, when Loma was at the front door and people were still leaving. Neither Loma nor other security staff had called for police, but Loma assumed that patrons had cell phones. Loma did not know either officer. He had “a lot of incidents” with Hayward police over the years, but this was “actually the first time” at Smilin’ Jack’s. The officers saw people leaving and, when Officer Ortiz asked about an altercation, Loma explained that it was over, that he had closed the bar because of it, and that the ones involved were gone. Ortiz responded: “[W]ell, anyways, I’m going to go in there and if I—I want to see—if I see anybody intoxicated, I am going to arrest them. I want you to stay back. I don’t want you to warn anybody.” Loma later recalled the response this way: “[W]ell, I’m going to just go in the bar and everybody that looks intoxicated, I’m going to arrest them, but I don’t want you to come in with me. I don’t want you to warn nobody. Just stay here first for so many seconds[.]”
Loma never asked for assistance in clearing the bar but obliged as the officers entered. He waited 10 to 15 seconds before entering behind them, saw people leaving, and “walked through the bar.” At some point he saw the officers standing right behind Camacho, who was leaning with both elbows on the bar as if “waiting for something.” Loma knew that Camacho regularly took a taxi, but he had not seen one just then while at the doorway with a view outside. There were perhaps six or seven patrons (certainly fewer than 10) in view inside when Loma entered behind the officers.
Loma saw no interaction between Camacho and the officers until Camacho stood up suddenly and stumbled back into one of them, as though he had tripped on their feet or something. Camacho “just stood up and maybe backed up, and that’s when he stumbled onto the officer.” The officers grabbed Camacho’s arms behind his back, announced his arrest, and handcuffed him. Loma did not feel that Camacho was “in danger of falling,” and he heard Camacho say, “[O]h, I’ve called a taxi already.” Camacho was the only patron who stumbled or tripped.
Camacho himself did not testify.
B. The Ruling
In denying suppression at the preliminary hearing, the court first deemed debate about the taxi irrelevant to probable cause: “Apparently, the testimony is, and there’s no reason for the Court to disbelieve, that it is a habit to have a taxi pick him up from the bar. That’s not the issue. The issue is whether he is intoxicated [such that] he would not be able to exercise care for his . . . safety or the safety of others . . . .”
Turning to the officer’s observations, the court noted: “[H]e sees bloodshot eyes. He sees some difficulty . . . in balance. He doesn’t see him fall, and I don’t think he even sees him trip at all, according to his testimony, although according to [defense] testimony . . . he may have tripped. Whether it was because of intoxication or something else is not clear, but the officer doesn’t see that. What he does see is somebody who’s got a drink in his hand, and he sees apparently he’s got bloodshot eyes, and then when he approaches him, he smells alcohol on his person and on his breath.”
The court discounted defense argument that the officer was not credible because he was “simply looking for somebody to arrest.” Rather, the court reasoned, the officer was set to arrest anyone who was sufficiently “intoxicated” and “was just warning the security officer in advance.” The court found that the officer’s testimony was “credible as to what his observations were and that they were sufficient for him to make that initial arrest and detention [for violating section] 647(f)).” Rejecting defense argument that this would render most bar patrons subject to arrest, the court observed. “[T]here are many people who drink that don’t have bloodshot eyes, they don’t have slurred speech and so forth, even though they have been drinking, and clearly those people wouldn’t be, you know, subject to this potential violation . . . .”
III. DISCUSSION
Camacho challenges the probable-cause determination, essentially repeating the arguments he made below and disputing the implicit finding that he could not exercise care for the safety of himself or others.
Our standard of review “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. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.) Where, as here, the ruling made at the preliminary hearing was reviewed below without taking additional evidence, we, like the courts reviewing below, must defer to the magistrate’s factual determinations. (People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224.)
Camacho quotes the rule that, where additional evidence is taken on a later motion, we defer to the superior court’s de novo review of the magistrate’s ruling (People v. Superior Court (Cooper) (2003) 114 Cal.App.4th 713, 717), but he does not identify any new evidence taken in either of the reviews he obtained below. We have no reporter’s transcript of the motion to dismiss (Pen. Code, § 995), but the transcript of the “renewed” motion clearly shows that no additional evidence was presented and that the court deferred to the factual findings made by Judge Lee at the preliminary hearing. Camacho, in fact, concedes in his opening brief that no additional evidence was presented then, while inconsistently insisting that we are reviewing a “de novo” ruling. Since no additional evidence was presented, we defer to Judge Lee’s factual determinations, including resolutions of conflicting inferences from uncontradicted evidence (People v. Lee (1987) 194 Cal.App.3d 975, 981).
“Determining whether an officer had cause to arrest requires two analytically distinct steps, each with its own standard of review. First, the [trial] court ascertains when the arrest occurred and what the arresting officer then knew; second, the court decides whether the officer’s knowledge at the time of arrest constituted adequate cause. On appeal, a reviewing court must accept the trial court’s express or implied findings on disputed factual issues in the first step of the inquiry if they are supported by substantial evidence, but a reviewing court must use its independent judgment to review the second step of the inquiry.” (People v. Price (1991) 1 Cal.4th 324, 409.) “Cause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime.” (Id. at p. 410; People v. Kraft (2000) 23 Cal.4th 978, 1037.)
A violation of section 647(f) “is complete if the arrestee is (1) intoxicated (2) in a public place and either (3) is unable to exercise care for his own safety or the safety of others or (4) interferes with or obstructs or prevents the free use of any street, sidewalk or public way.” (People v. Lively (1992) 10 Cal.App.4th 1364, 1368-1369 (Lively).) Here, as in Lively, the first two elements are concededly met, the fourth is inapplicable, and the sole question is whether the officer had reason to believe that Camacho was unable to exercise care for his own safety or the safety of others. (Id. at p. 1369.) “In an arrest for public intoxication, the totality of circumstances must be considered in determining whether the intoxicated person can exercise care for his or her own safety or the safety of others.” (Id. at p. 1372.) For example, “An inebriated person behind the wheel of a car or power boat or plane or train poses a greater danger to himself or herself and others than the same person lying on a park bench.” (Id. at pp. 1372-1373.)
In light of the totality-of-circumstances test, one can quibble with Judge Lee’s legal conclusion that whether Camacho was waiting for a taxi was irrelevant. If he were waiting for a taxi, this would pose less danger to himself or others than if he were going to drive himself home. As a factual matter, however, Judge Lee said, “the testimony is, and there’s no reason for the Court to disbelieve, that it is a habit to have a taxi pick him up from the bar,” which suggests that the court accepted that Camacho was going to leave by taxi, whether or not one had already been called. There was also no evidence that Camacho had a car at the bar or otherwise planned to drive. We deem ourselves bound to accept, as a factual matter, that Camacho was not going to be driving, and this distinguishes cases that have found that a person in control of a car in a seriously drunken condition meets the test of the statute. (See, e.g., Lively, supra, 10 Cal.App.4th at pp. 1370-1373, disapproving an inconsistent holding in People v. Engleman (1981) 116 Cal.App.3d Supp. 14, 19-20.)
On the other end of the spectrum articulated in Lively, Camacho was not just lying on a park bench. (Lively, supra, 10 Cal.App.4th at pp. 1372-1373.) He was leaving a bar that had to be cleared due to a fight. While we, of course, review the ruling of Judge Lee at the preliminary hearing, a different judge below summarized the issue: “It doesn’t have to be [the drunk driving standard]. But if he’s stumbling, if he’s weaving, if he’s unsteady on his feet, he could . . . fall, bump his head, hurt his face, fall on somebody else and hurt them, stumble onto somebody else and hurt them, could go walk outside and stumble, or fall outside even on his way to the cab.” We agree.
Viewing the facts known to Officer Ortiz most favorably to the ruling, Ortiz first saw that Camacho was at the dance floor 15 to 20 feet away, leaning on a table to steady himself, his balance impaired, and swaying from side to side. When he called out, his voice was slurred. This raised enough alarm that Ortiz meant to go speak with Camacho but then had to take his attention away to help security clear the bar. Then as Ortiz stood speaking to a bartender, his back to Ortiz, Ortiz came up behind him and, the next the officer knew, was standing at the bar behind him. Ortiz did not reveal what may have caused him to turn around and notice Camacho, but when he did, he saw immediately that Camacho was swaying four to six inches side to side while standing holding onto a chair, and had difficulty standing. From three to four feet away, Camacho also emanated a strong odor of alcohol from his breath and person, and had red, watery eyes. This was objectively serious impairment, and it was obvious to Ortiz that, without need for any sobriety tests, Camacho was unable to care for his own safety or the safety of others.
Camacho stresses that Ortiz had his back turned and therefore, unlike the facts of some published cases, did not see him stumble or having an unsteady gait, and he urges that we cannot consider Loma’s testimony about him stumbling backward into the officer because Ortiz did not say that he saw Camacho stumble into him. We readily agree that, probable cause being tested by what an officer objectively sees (Johnson v. Lewis (2004) 120 Cal.App.4th 443, 454), we cannot consider an unsteady gait.
We are not persuaded, however, that we cannot consider Camacho backing into the officer. This was based on defense witness Loma saying that Camacho was “leaning on the bar and all of a sudden he starts to stand up and he moved back and he look[ed] like he tripped at that moment and that’s when I observed the police arresting him.” Camacho “just stood up and maybe backed up, and that’s when he stumbled onto the officer.” Judge Lee said of this: “[The officer] doesn’t see him fall, and I don’t think he even sees him trip at all, according to his testimony, although according to [defense] testimony . . . he may have tripped. Whether it was because of intoxication or something else is not clear, but the officer doesn’t see that.” Lacking clear findings to the contrary on these points, we imply in support of the ruling that Camacho did stumble, and not because he stepped on an officer’s feet. If the officers had their back to Camacho, as testified, then it was not likely that Camacho tripped on their feet, and while the court must have found, in a long acquaintance between Loma and Camacho, reason to question Loma’s credibility in matters supporting Camacho, this testimony about stumbling was particularly credible as harmful to Camacho.
Also, something evidently called the officer’s attention to Camacho once he came to the bar, and a logical inference is that he felt Camacho back into him. Ortiz was never asked about this, but he testified first and was dismissed before Loma testified. The court could infer that Ortiz did feel the contact, and this is not mere speculation, but a logical inference based on evidence. “In this context, ‘speculation’ . . . means a guess, i.e., a conclusion not based upon a logical, reasonable, and therefore, lawfully drawable inference from the evidence.” (People v. Bohana (2000) 84 Cal.App.4th 360, 369.) Inferring that Ortiz felt the contact is also consistent with Ortiz’s testimony that he turned, noticed Camacho, and saw him swaying and having trouble standing on his own.
Even without feeling the stumble, however, Ortiz would clearly have sufficient information to lead a person of ordinary care and prudence to entertain an honest and strong suspicion (People v. Kraft, supra, 23 Cal.4th at p. 1037) that Camacho was so intoxicated that he was unable to exercise care for the safety of himself or others, and thus guilty of violating section 647(f). The direct testimony to that effect by an experienced officer itself provides some support (In re William G. (1980) 107 Cal.App.3d 210, 214; People v. Murrietta (1967) 251 Cal.App.2d 1002, 1004-1005; cf. People v. Steeples (1972) 22 Cal.App.3d 993, 995; contrast People v. Rich (1977) 72 Cal.App.3d 115, 120-122 [no evidence that the arrest was made under § 647(f) or that the defendant was unable to care for his own or others’ safety]), and Ortiz had 19 years of patrol experience, including hundreds of arrests for intoxication. The court was also free to discount testimony by Brunicon and Loma that Camacho did not appear to be unsteady on his feet or unable to care for himself. They each conceded being preoccupied with other matters, and their long acquaintances with Camacho provided reason to minimize or fabricate on his behalf. The court could also connect Brunicon’s history of drug-related priors with the fact that Camacho possessed drugs for sale that night. Those drugs also provided reason not to limit Camacho’s state of sobriety to what he was drinking, and the officer’s testimony did not rule out intoxicants beyond alcohol. And, of course, as to alcohol, the court was not limited by Brunicon’s testimony that she served him only two or three beers. Assuming the court credited that testimony, Brunicon conceded that she had no idea how many drinks the other bartender, Kimberly, might have served him.
Viewing the facts in support of the magistrate’s findings, and independently testing probable cause based on those facts, the ruling denying suppression is supported.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.