Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF119960D, Gary T. Friedman and Jerold L. Turner, Judge.
Judge Friedman ruled on the motion to suppress; Judge Turner imposed sentence.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Dawson, J. and Hill, J.
Following the denial of his motion to suppress, Rigoberto Vargas Casillas (appellant) pled no contest to one count of murder (Pen. Code, § 187) and was sentenced to 25 years to life in prison. Appellant contends the trial court erred in denying his Penal Code section 1538.5 motion to suppress evidence. We disagree and affirm.
FACTS
The following facts are shown by testimony at the suppression hearing.
In the early morning hours of July 12, 2007, sheriff’s deputy Cesar Ollague received information about a shooting, with one possible fatality. Ollague was sent to the hospital to interview one of the victims, Rafael Moreno. Moreno had sustained two or three gunshot wounds, including one to the head. He was undergoing treatment, alert, but in pain. He was “slipping away” due to medication.
Moreno told Ollague that the incident had begun around 5:00 or 6:00 a.m., after he and two other victims picked up a man he knew as “Chuy” to give him a ride. In the victims’ white Ford truck, Chuy directed them to an off-white/beige colored apartment complex on H and Planz Streets that had a red Dodge Ram parked in front. When they arrived, two people with handguns got into the white Ford truck. Moreno said one of the subjects had exited a newer, possibly 2003 model, four-door, Ford F-150 truck. Moreno first described the truck as brown, then gray, then a green color similar to the color of Ollague’s vest. The victims were driven to an orchard, where all three were shot. Moreno said that, after the shooting, the suspects fled in the white Ford truck. Moreno believed the brown/gray/green truck, from which one of the suspects had exited at the apartment complex, was still there.
Ollague and another deputy went to H and Planz Streets and located the apartment complex Moreno had described. They attempted to locate the truck Moreno had described, knocking on doors to inquire if anyone had seen or heard anything. Within minutes, the deputies spotted a dark gray, four-door Ford F-150 leaving the parking lot. Ollague initiated an emergency stop. The driver was female, appellant was in the passenger seat, and three children were in the extended cab. Based on this initial contact, Ollague did not believe they were involved with the crime. Ollague questioned the woman and appellant about the incident, and requested their identification. He wrote down appellant’s name and that he was from Tualatin, Oregon. The detention lasted five to seven minutes.
The deputies then returned to the hospital to show Moreno photographs of the apartment complex. Moreno confirmed the complex was the one he had described, then mentioned one of the assailants was from Tualatin, Oregon. Ollague realized the individual he stopped might be a suspect. The deputies then returned to the apartment complex and located appellant, who went willingly to the sheriff’s department to be questioned.
DISCUSSION
I. Standard of Review
When reviewing a lower court’s ruling on a suppression motion, an appellate court upholds any factual finding, express or implied, that is supported by substantial evidence, but independently assesses, as a matter of law, whether the challenged search or seizure conforms to the reasonableness standard contained in the Fourth Amendment of the federal Constitution. (People v. Hughes (2002) 27 Cal.4th 287, 327.)
II. Reasonable Suspicion
Appellant contends the trial court erred in finding the police had reasonable suspicion to detain the truck in which he was a passenger. His challenge is based on two grounds: (1) the police had no reasonable suspicion to believe the gray truck was involved with the crime, and (2) the police had no reasonable suspicion that the occupants of the truck were anything more than witnesses.
The issue before us is whether the deputy had a sufficient quantum of information to establish reasonable suspicion to justify the investigatory stop at its inception. Reasonable suspicion of criminal activity makes it lawful to temporarily detain an individual for both limited questioning and to obtain identification. (United States v. Brignoni-Ponce (1975) 422 U.S. 873, 881.) Such temporary detention satisfies the Fourth Amendment if police can point to “specific, articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v Souza (1994) 9 Cal.4th 224, 231.) Under this objective standard, “‘the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question.’” (People v. Loewen (1983) 35 Cal.3d 117, 123.)
Since an investigatory stop is less intrusive to one’s personal security than an arrest, the level of suspicion necessary for such a stop is “considerably less than proof of wrongdoing by a preponderance of the evidence.” (United States v. Sokolow (1989) 490 U.S. 1, 7.) While police are not allowed to act on mere hunches, curiosity, or vague descriptions, a more particularized description, together with additional circumstances known to the officer, may justify a detention. (In re Carlos M. (1990) 220 Cal.App.3d 372, 381-382.)
Appellant’s argument that police had no reasonable suspicion to believe the gray truck was involved in the crime is unfounded. The truck was substantially similar to the one that Moreno had described. One of the perpetrators had exited this vehicle when the crime was initiated, and thus, it was used in the commission of the crime. A slight color discrepancy between the described vehicle and the stopped vehicle is insufficient to render the stop illegal. (U.S. v Abdus-Price (D.C.Cir. 2008) 518 F.3d 926, 928.) In Abdus-Price, police received report of a robbery involving a Ford Crown Victoria that was tan on one side, black on top, and had smoked-out windows. Two blocks from where the robbery occurred, the officers pulled over a dark blue Crown Victoria with tinted windows and a white driver’s-side rear door. The slight color discrepancy was insufficient to challenge the legality of the stop because of the remaining points of similarity and the vehicle’s vicinity to the crime scene. (Id. at pp. 930-931.) The court explained a reasonable officer would infer that the victim of an armed robbery might not exercise perfect recall in describing the color of a getaway car. (Id. at p. 931.)
Here, when interviewed, the victim was under the effects of medication for a gunshot wound to the head. He had recently experienced a traumatic event. Under these circumstances, it is not unreasonable to think he could have trouble describing the precise color of a vehicle. This was not a “shifting description,” as appellant argues, but a description of three colors which were consistently dark. The stopped vehicle matched one of those three colors. Not only did Moreno recall the vehicle’s dark color, he also provided the make, model, and year, all of which matched the stopped vehicle. He precisely described the location he believed the vehicle would be found, including the color of the apartment complex and that there was a red Dodge Ram parked in front. The deputy had ample remaining points of similarity and a particularized description on which to base a reasonable suspicion.
Appellant asserts that because Moreno said the perpetrators had fled in the victims’ white Ford truck, the police had no reason to believe someone would be located in a gray truck. However, it is not so unreasonable to think the perpetrator would return to the apartment complex from whence he came.
Appellant’s second contention, that the officer went to the apartment complex in search of witnesses, not suspects, is a mischaracterization of the deputy’s testimony. Ollague specifically testified his purpose for locating the apartment complex was to search for the truck the victim had described. Appellant also points to Ollague’s testimony that his police report indicates he released the appellant because he was looking for a different colored vehicle. However, in evaluating the reasonableness of an investigatory stop, an officer’s action must be justified at its inception. (United States v. Sharpe (1985) 470 U.S. 675, 682.) Ollague did not initially stop the vehicle for suspicionless purposes, but did so because it matched the general description of a vehicle involved in the crime. Only after he stopped the vehicle in question and discovered the occupants to include a female and three children was the deputy’s suspicion dispelled. “If the facts known to the officer at the time of the detention make the detention objectively reasonable, the officer’s subjective intent will not vitiate the detention.” (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 320.) Therefore, appellant’s attempt to liken the detention to a random detention for the purpose of seeking witnesses is erroneous, as is pointing to the contents of the deputy’s subsequent report of the incident.
In U.S. v. Marxen (6th Cir. 2005) 410 F.3d 326, a witness provided police information about the make, model, color, and license number of a getaway car used in a robbery, but no description of the driver. The investigatory stop of the defendant’s vehicle was held valid because police had reasonable suspicion to believe it was used in the robbery, and the stop could lead to the discovery of evidence. (Id. at pp. 331-332.) The stop was lawful even though there was no reasonable suspicion that the driver or owner of the vehicle was involved. (Ibid.) In this case, Ollague had reasonable suspicion to stop the vehicle because it matched the description of the vehicle involved with the shootings. The basis of his suspicion was sufficient without regard to the vehicle’s occupants.
This was an ongoing crime investigation involving a carjacking and murder. As the perpetrators had arrived and fled by vehicle, there was a high likelihood they would leave the vicinity and remain at large. The police detained the vehicle shortly after the shootings based on the victim’s accurate description of the vehicle and the location where it could be found. “A brief stop and detention at the earliest opportunity after the suspicion arose is fully consistent with the principles of the Fourth Amendment.” (United States v. Hensley (1985) 469 U.S. 221, 234.) The totality of the circumstances in this case convinces us the deputy had reasonable suspicion to detain under the objective standard.
The trial court was correct in finding the existence of reasonable suspicion to justify the stop and in denying appellant’s motion to suppress. As a result of this holding, we need not and do not address appellant’s additional argument that all evidence obtained as the result of the stop must be suppressed and that appellant must be given the opportunity to withdraw his guilty plea.
DISPOSITION
The People point out an error in the abstract of judgment, where the box indicating appellant’s sentence was imposed pursuant to Penal Code section 667, subdivisions (b)-(i) or Penal Code section 1170.12 is erroneously checked. The trial court is directed to issue an amended abstract of judgment to correct this clerical mistake. The judgment is otherwise affirmed.