Opinion
E051134
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. TALBIA S. CHOUDHURY, Defendant and Appellant.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, Heidi T. Salerno, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FWV901779)
OPINION
APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson, Judge. Affirmed as modified.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, Heidi T. Salerno, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Talbia S. Choudhury pled nolo contendere to one count of possession of marijuana for sale. (Health & Saf. Code, § 11359.) He was thereafter placed on formal probation for a period of 36 months on various terms and conditions, including serving 180 days in county jail and submitting to random drug testing. On appeal, defendant contends (1) the trial erred in denying his suppression motion, and (2) the trial court incorrectly made the costs of substance abuse drug testing as a condition of probation. We agree that the challenged probation condition must be modified. In all other respects, we affirm the judgment.
I
FACTUAL BACKGROUND
The factual background is taken from the suppression hearing.
On May 11, 2009, about 12:13 p.m., San Bernardino County Sheriff's Deputy Walter Peraza was on routine patrol in the City of Rancho Cucamonga when he saw defendant in the middle of Kirkwood Avenue "just south" of its intersection with Meadow Street, in a residential area. For safety reasons, Deputy Peraza activated his patrol vehicle overhead lights, stopped his vehicle in the middle of the street, and made contact with defendant "to avoid hitting" him. The deputy explained that defendant "stopped in the middle of the street when he saw [the deputy's] patrol vehicle." The deputy acknowledged that when he first saw defendant, defendant was walking. The deputy was driving "less than five miles an hour" when he had to stop his vehicle in the middle of the street to avoid hitting defendant.
A defense witness testified that defendant was crossing the street to get to the witness's house.
Deputy Peraza asked defendant "to move to the sidewalk for his safety and mine as well." Defendant complied. Deputy Peraza got out of his patrol car, identified himself to defendant, and told defendant the reason he had initiated the contact "was [defendant's] safety as far as being in the middle of the street." As he was speaking with defendant, he smelled an "extremely strong" odor of marijuana emanating from defendant's person. The deputy also smelled a "very strong" odor of marijuana coming from a backpack defendant had on his shoulder.
Deputy Peraza asked defendant if he had anything illegal on his person or in his backpack. Defendant replied that he did not have anything illegal on his person and that he had magazines in his backpack. The deputy then asked defendant if he could look inside defendant's backpack to determine if he had anything illegal inside. Defendant handed the deputy the backpack and said, "Go ahead." As soon as the deputy opened the backpack, he saw a large amount of marijuana packaged in a plastic bag.
It was later determined that the amount of marijuana was 207 grams.
Following the evidentiary hearing, the trial court denied defendant's suppression motion, essentially finding the initial encounter to be consensual in nature. The court further found the deputy to be credible in his testimony that defendant was in the middle of the street, therefore justifying a detention.
II
DISCUSSION
A. Motion to Suppress
Defendant contends that the trial court erred in denying his suppression motion because the initial contact was an unlawful detention. Specifically, he claims that he was detained when the deputy activated his overhead patrol vehicle lights and asked defendant to step to the sidewalk and sit at the curb.
In reviewing the denial of a suppression motion pursuant to Penal Code section 1538.5, we evaluate the trial court's express or implied factual findings to determine whether they are supported by substantial evidence, but we exercise our independent judgment to determine whether, on the facts found, defendant's Fourth Amendment rights have been violated. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Williams (1988) 45 Cal.3d 1268, 1301.)
There are essentially three categories or levels of police "contacts" or "interactions" for purposes of Fourth Amendment analysis: consensual encounters, detentions, and seizures, which include formal arrests and restraints on an individual's liberty, comparable to an arrest. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 (Wilson).)
Our present inquiry concerns the distinction between consensual encounters and detentions. Not every encounter an individual has with law enforcement triggers Fourth Amendment scrutiny. (Terry v. Ohio (1968) 392 U.S. 1, 19 [88 S.Ct. 1868, 20 L.Ed.2d 889], fn. 16.) Consensual encounters do not trigger such scrutiny. (Florida v. Bostick (1991) 501 U.S. 429, 434 [111 S.Ct. 2382, 115 L.Ed.2d 389] (Bostick)) Unlike detentions, consensual encounters require no articulable suspicion that the person has committed or is about to commit a crime. (Wilson, supra, 34 Cal.3d at p. 784.) The United States Supreme Court has made it clear that a detention does not occur simply because a police officer asks an individual a few questions. (Bostick, at p. 434.) As long as a reasonable 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. (California v. Hodari D. (1991) 499 U.S. 621, 628 [111 S.Ct. 1547, 113 L.Ed.2d 690].) 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. (Bostick, at p. 434.) Thus, Fourth Amendment scrutiny will not be triggered unless the encounter loses its consensual nature. (Bostick, at p. 434.)
There is no bright-line rule to determine if an encounter is consensual. (Ohio v. Robinette (1996) 519 U.S. 33, 39 [117 S.Ct. 417, 136 L.Ed.2d 347].) "[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." (Bostick, supra, 501 U.S. at p. 439.) Whether or not a person would have believed that he or she was free to leave is to be evaluated in light of the totality of the circumstances, rather than emphasizing particular details of that conduct in isolation. (Michigan v. Chesternut (1988) 486 U.S. 567, 573 [108 S.Ct. 1975, 100 L.Ed.2d 565].) Factors that might indicate an unlawful detention has taken place include (1) the presence of several police officers; (2) an officer's display of a weapon; (3) some physical touching of the person; or (4) the use of language or a tone of voice indicating that compliance with the officer's request might be compelled. (United States v. Mendenhall (1980) 446 U.S. 544, 554[100 S.Ct. 1870, 64 L.Ed.2d 497] (Mendenhall); In re Manuel G. (1997) 16 Cal.4th 805, 821.) "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.]" (In re Manuel G., at p. 821; see also Mendenhall, at p. 554.)
Applying the foregoing principles, we conclude the trial court properly denied defendant's suppression motion because the contact between the deputy and defendant was consensual in nature. Here, Deputy Peraza was on routine patrol in a marked unit when he saw defendant in the middle of a residential street. For safety reasons, Deputy Peraza activated his patrol vehicle overhead lights and stopped his vehicle in the middle of the street to avoid hitting defendant. The deputy pulled over and asked defendant to move to the sidewalk for his safety. Defendant complied. As Deputy Peraza made contact with defendant, he immediately smelled an "extremely strong" odor of marijuana emanating from defendant's person and backpack defendant had on his shoulder. This gave the deputy reasonable suspicion to detain defendant thereafter.
There is no indication in the record here that the deputy confronted defendant in an apprehensive manner or that the initial encounter was anything more than consensual. Defendant was cooperative and voluntarily responded to the deputy's questions. The deputy did not draw his gun or use force or threats. Defendant was not directed to a different location, and the encounter took place in a public setting with others around. The tone of the encounter was conversational, not accusatory. It appears that Deputy Peraza did not exhibit any physical or verbal force that would cause a reasonable person to feel that he or she was not free to leave. The encounter was not converted into a detention requiring Fourth Amendment scrutiny merely because Deputy Peraza activated his patrol vehicle lights and asked defendant to move out from the middle of the street. (See Bostick, supra, 501 U.S. at p. 434; Florida v. Royer (1983) 460 U.S. 491, 497-498 [103 S.Ct. 1319, 75 L.Ed.2d 229]; People v. Hughes (2002) 27 Cal.4th 287, 328.)
People v. Lopez (1989) 212 Cal.App.3d 289 is illustrative. In Lopez, the court found no detention when officers, who were concededly on the prowl for narcotics dealers, recognized the defendant from a previous encounter. The officers "stood on either side of him and launched into a short, albeit somewhat accusatory, interrogation." (Id. at p. 293.) The officers asked the defendant whether the car he was sitting on belonged to him. (Id. at p. 291.) When he said no, the officers asked why he was sitting on that car. The defendant responded that he was waiting for his friends to play pool. When the officers asked where his pool stick was, the defendant did not reply. The officers asked whether he had identification, and the defendant reached into his pocket. The defendant handed the officer the wallet and when it was opened, a bindle of cocaine "'pop[ped] up.'" (Ibid.)Finding the questions were "brief, flip, and, most importantly, did not concern criminal activity," the reviewing court concluded the questions were not so accusatory as to demonstrate that a reasonable person would believe he was not free to leave. (Id. at p. 293.)
Similarly, in this case, defendant voluntarily complied with the deputy's request to move to the sidewalk for the safety of defendant as well as the deputy. In addition, defendant voluntarily responded to the deputy's questions. Defendant could have simply walked away from the deputy. In addition, it appears from the record that only Deputy Peraza was present at the scene, and he did not have his weapon drawn. Therefore, the nature of the contact between defendant and Deputy Peraza was consensual and did not constitute a detention requiring reasonable suspicion.
Defendant contends that he was unlawfully detained when the deputy stopped his vehicle in the middle of the street, activated his patrol unit lights, exited his vehicle, and asked defendant to move to the side of the road and sit on the curb. He relies on such cases as People v. Bailey (1985) 176 Cal.App.3d 402, 404-406, in which the defendant was approached by officers in an unmarked patrol car with its emergency lights flashing; People v. Jones (1991) 228 Cal.App.3d 519, 522, in which the defendant was approached by an officer who had pulled his patrol car to the wrong side of the road and parked diagonally against traffic; and People v. Garry (2007) 156 Cal.App.4th 1100, in which an officer encountered a defendant alone on the street late at night and shone his patrol car's spotlight on him, quickly approached him, asked if he was on probation or parole, and then reached out and grabbed him.
There are several factors that distinguish this case from those cited above. Here, although the patrol car's lights were on, the deputy did not park in a manner that blocked or impeded defendant. In addition, the deputy did not issue a command but merely requested that defendant to move to the side of the road and sit on the curb. Further, the deputy did not ask defendant about his status, grab him, or approach him rapidly while questioning him. Essentially, the deputy did not confront defendant here or physically restrain or intimidate him. The most significant factor is that the deputy detected an odor of marijuana while being in a location where he was entitled to be. Essentially, the deputy's request to have defendant step to the curb and the deputy's detection of the odor of marijuana were simultaneous events.
Under the totality of the circumstances, a reasonable person in defendant's position would have believed that he was free to walk away when Deputy Peraza activated his patrol lights and asked defendant to step to the sidewalk. There was no detention under the Fourth Amendment at that point.
Based on our independent review of the circumstances as a whole, we conclude that defendant's initial encounter with Officer Gray was consensual. The trial court properly denied defendant's motion to suppress the physical evidence obtained as a result of this encounter.
Assuming arguendo that the encounter between defendant and Deputy Peraza amounted to a detention, the detention was reasonable.
For this analysis, we must first determine whether the deputy had a reasonable suspicion that defendant was involved in criminal activity, sufficient to support the detention. (See People v. Harris (1975) 15 Cal.3d 384, 388-389.) An investigatory detention may be justified if it is based on a reasonable suspicion that the individual has violated a provision of the Vehicle Code. (In re H.M. (2008) 167 Cal.App.4th 136, 140, 142 [detention was justified based on reasonable suspicion that minor had violated Vehicle Code section 21954].)
Here, the prosecution argued that defendant's initial detention was justified based on the deputy's observation of defendant in the middle of the street in an unlawful manner. Vehicle Code section 21954, subdivision (a) provides: "Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard." Relying on the deputy's testimony that the patrol vehicle was travelling about five miles per hour, defendant claims that there was no evidence that the patrol car "was near enough to constitute an immediate hazard" and that once he was "lawfully crossing the street, the patrol car did not have the right of way." Thus, defendant argues that the deputy could not reasonably have believed that he violated Vehicle Code section 21954. The deputy testified, however, that at the point that the patrol car came upon defendant in the middle of the street, the patrol car "had" to stop "to avoid hitting the [defendant]." As the People point out, this testimony is sufficient to support the deputy's reasonable belief that defendant was presenting an immediate hazard in the roadway.
People v. Ramirez (2006) 140 Cal.App.4th 849, cited by defendant, is distinguishable. In that case, the court found that the officer did not have a reasonable suspicion that defendant crossed the street in violation of Vehicle Code section 21954. Rather, the court concluded that the alleged Vehicle Code violation was an "impermissible ruse to stop and search" defendant. (Ramirez, at p. 853.) The officer testified that he saw "[a] man crossing an intersection diagonally who was already three-quarters of the way from one side of the street to the other. There was no crosswalk, but the intersection was controlled by four-way stop signs, and the only visible vehicle was the officer's patrol car, which not even the officer suggested posed an 'immediate hazard' to either [the defendant] or the officer or his vehicle or anyone else." (Id. at pp. 853854.) When the defendant saw the patrol car approaching, he immediately turned around and returned to the sidewalk. (Ibid.) Based on this testimony the court concluded that "there was no violation of [Vehicle Code] section 21954, subdivision (a), and there is no way that the officer could have believed there was a violation." (Ibid.)In contrast, defendant here was attempting to cross a residential street south of an intersection when he stopped in the middle of the street, causing the deputy to stop his patrol vehicle to avoid hitting him.
The motion to suppress evidence was properly denied.
B. Costs of Drug Testing
Defendant also claims that the trial court erred in imposing the costs associated with the submission of drug testing as a condition of probation. We agree.
Specifically, the trial court ordered defendant, as a condition of his probation (condition No. 12), to "[s]ubmit to a controlled substance test at direction of probation officer. Each test is subject to an $11.00 fee, to be collected by Central Collections."
A defendant who is granted probation may be ordered to pay the reasonable costs of probation, but the payment of such collateral costs cannot be made a condition of probation. (Pen. Code, § 1203.1, subd. (b); People v. Hall (2002) 103 Cal.App.4th 889, 892; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321.) Moreover, the payment of this cost cannot be ordered until a determination is made that a defendant is financially able to do so. (Pen. Code, § 1203.1b; Hall, at p. 892; Brown, at p. 321.) An order that a probationer pay the collateral costs of probation is enforceable only as a separate money judgment in a civil action. (Brown v. Superior Court, at p. 322; People v. Hart (1998) 65 Cal.App.4th 902, 907.) Any order for payment of probation costs should be imposed as a separate order. (People v. O'Connell (2003) 107 Cal.App.4th 1062, 1068.) Accordingly, the order here was in error because probation fines, fees, and costs are collectible as civil judgments but cannot be imposed as probation conditions. (People v. Flores (2003) 30 Cal.4th 1059, 1067, fn. 5; Hart, at pp. 906-907.)
According to Penal Code section 1203.1b, subdivision (e), "'ability to pay' means the overall capability of the defendant to reimburse the costs, or a portion of the costs, . . . and shall include, but shall not be limited to, the defendant's: [¶] (1) Present financial position. [¶] (2) Reasonably discernible future financial position. In no event shall the court consider a period of more than one year from the date of the hearing for purposes of determining reasonably discernible future financial position. [¶] (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing. [¶] (4) Any other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs."
Hence, under Penal Code section 1203.1b, subdivision (e), a court is allowed to consider defendant's ability to obtain employment within one year. There was sufficient evidence in the record to support the trial court's finding that defendant had the ability to pay for substance detection because defendant had retained counsel and would likely obtain employment. Defendant was placed on probation and ordered to serve 180 days in county jail on weekends. In addition, the court found defendant had the present ability to pay the costs of conducting the presentence investigation report, the booking fees, and the probation supervision fees.
However, although the requirement that defendant pay the costs of his substance abuse treatment was a condition of his probation (Brown v. Superior Court, supra, 101 Cal.App.4th at p. 321 [requirement that the defendant pay costs of periodic polygraph testing was integral part of probation condition that required defendant to undergo periodic polygraph examinations at his expense; as such, payment of costs was not collateral, but a condition of probation]), the court should have instead issued a separate civil order for the payment of such costs (id. at p. 322).
The appropriate remedy is not to strike the order to pay these costs. Instead, the imposition of these costs as a condition of probation may simply be modified to be treated as "an order entered at judgment" and to be "enforced as permitted in the relevant statutes." (People v. Hart, supra, 65 Cal.App.4th at p. 907.) We will thus direct that the order to pay these costs be construed as an order entered at judgment. In Hart, the error was corrected simply by directing that "the order granting probation must be modified to delete the order to pay costs of probation from the conditions of probation, making it simply an order entered at judgment. As such, the order may be enforced as permitted in the relevant statutes." (Id. at p. 907.) We shall direct the same modification to the order of probation in this case.
III
DISPOSITION
The order requiring defendant to pay the costs of substance abuse treatment (condition No. 12) as a condition of probation is modified to delete the requirement that defendant pay the costs. However, the order that defendant pay such costs is affirmed as an order entered as a part of the judgment. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
CODRIINGTON
J.