Opinion
C083624
09-18-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JASON FARLEY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCR20168758)
After his motion to suppress evidence was denied, first by a magistrate at a hearing pursuant to Evidence Code section 1538.5, and then by the superior court on a section 995 motion, defendant Robert Jason Farley pleaded guilty to unlawful possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) and admitted a prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). Sentenced to state prison, defendant contends that the officer's pat-down search was not supported by reasonable cause. We affirm.
Undesignated statutory references are to the Evidence Code.
I. BACKGROUND
A. Introduction
Defendant's challenge to the magistrate's denial of his motion to suppress evidence, preserved through his section 995 motion, is reviewed using the standards associated with appellate review of a section 995 motion. That is, "we, in effect review the magistrate's decision directly, deferring to the magistrate's factual findings." (People v. Hawkins (2012) 211 Cal.App.4th 194, 200 (Hawkins).) In doing so, "[w]e must draw all presumptions in favor of the magistrate's factual determinations, and we must uphold the magistrate's express or implied findings if they are supported by substantial evidence. [Citations.]" (People v. McDonald (2006) 137 Cal.App.4th 521, 529 (McDonald).) In a section 995 proceeding, the superior court " 'merely reviews the evidence; it does not substitute its judgment on the weight of the evidence nor does it resolve factual conflicts. [Citation.]' " (People v. Magee (2011) 194 Cal.App.4th 178, 182 (Magee), quoting McDonald, supra, at p. 529.)
We make this point at the outset because defendant misapprehends the applicable standard of review. Citing cases in which appeals were taken directly from the denial of section 1538.5 motions (People v. Camacho (2000) 23 Cal.4th 824, 829 (Camacho); People v. Russell (2000) 81 Cal.App.4th 96, 101 (Russell)), defendant states: "The reviewing court defers to the trial court's factual findings where supported by substantial evidence, but exercises independent judgment in determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment to the United States Constitution. ([Camacho, supra, at p. 830]; [Russell, supra, at p. 102].)" (Italics added.) Defendant then refers to the magistrate and the superior court collectively as "the trial court" or "the lower court," and relies on the superior court's findings where they are more favorable to his position than the magistrate's findings. But when an appeal is taken from the denial of a section 995 motion that renewed the original section 1538.5 motion, as in our case, "the trial court" means the magistrate only, because it is only the magistrate's factual findings that we review. For the reasons stated in Magee, supra, 194 Cal.App.4th 178, and McDonald, supra, 137 Cal.App.4th 521, factual findings made by the superior court on the section 995 motion, so far as they differ from the magistrate's findings, are irrelevant on appeal. Defendant's reliance on them is therefore improper.
We also note that although defendant frames his argument as a contention of law, he does not argue that the officer lacked reasonable cause to search him even if the facts found by the magistrate were true. Thus, the only real issue is whether, when the evidence is viewed in the light most favorable to the magistrate's ruling, the magistrate's factual findings are supported by substantial evidence. (Cf. McDonald, supra, 137 Cal.App.4th at p. 529.) B. Evidence Presented at the Section 1538.5 Hearing
Stockton Police Officer Mauldin testified that while patrolling at around 2:00 a.m. on June 26, 2016, he saw defendant riding a bicycle without a front lamp or rear reflector. After Officer Mauldin activated his patrol car's red lamp and emergency lights, defendant stopped and stood astride his bicycle with his hands down in front of him as Officer Mauldin and his partner approached from behind. Defendant was wearing baggy jeans and a loose, baggy untucked T-shirt that hung six inches below the jeans' waistband.
During this encounter, Officer Mauldin's body camera was activated. A video made by the body camera was admitted into evidence as defense exhibit 101, and portions of the video were played during the preliminary hearing. Officer Mauldin testified that the video was a fair and accurate depiction of the encounter, and acknowledged that it refreshed his recollection on some points. Defense counsel asked the magistrate to review the first two and a half minutes of the video before ruling on the motion to suppress. The magistrate's factual findings cite extensively to the video, which we have also viewed at defendant's request.
Officer Mauldin testified that as he approached, defendant reached his hand toward his pocket. The officer immediately told him not to reach into his pockets, using the word "stop." After "a brief hesitation," defendant complied. However, based on defendant's movement toward his waistband, the officer was already concerned that defendant might be armed and dangerous.
Asked whether defendant was holding loose change in his hand when the officers contacted him, Officer Mauldin did not recall. After the relevant portion of the video was played, the officer testified that defendant said he was holding change. The officer agreed that a sound like the clinking of coins could be heard on the video.
Officer Mauldin identified himself and told defendant he had been stopped for riding his bicycle without lighting equipment. The officer asked defendant whether he had anything on him that the officer should be concerned about; defendant said no. Shortly afterward, the officer asked if he could search defendant; defendant said no.
According to defendant, he then asked whether he was under arrest. The record citation he gives does not show that statement, but it is audible on the video.
Officer Mauldin next asked defendant for identification, "either an ID number or a social security number, another means of confirming his identity." Defendant gave what he said was his name and date of birth, but said he was not carrying any identification and refused to give his social security number. He insisted that if the officers did a records check, his information would "pop up." Defendant also questioned whether the officers were actually police officers. Officer Mauldin then displayed his identification.
Defendant states that he "provided his true name and date of birth." Although a records check eventually confirmed that the information defendant gave was true, the officers could not have known that at the start without corroboration, which defendant failed to provide.
Defendant asserts that he said his social security number was personal information that he did not want to give out. The record citation defendant gives does not contain that statement, but it is audible on the video.
On the video, a voice, presumably that of Officer Mauldin's partner, can be heard exclaiming that the officers were in full uniform and driving a marked patrol car.
According to Officer Mauldin, he repeated his request for ID several times as defendant "maintained a nervous nature about him fidgeting, making quick movements toward his waistband." Due to these movements and defendant's baggy clothing, the officer formed the suspicion that defendant was presently armed and dangerous.
Officer Mauldin put defendant in position for a pat-down search, with hands on his head, fingers interlocked. Looking down, the officer saw a handgun in defendant's pocket that was exposed when defendant raised his arms and the bottom of his shirt came up along with them. The handgun turned out to be a loaded revolver.
After removing the gun and handing it to his partner, Officer Mauldin handcuffed defendant and placed him in the patrol car. He then performed a records check, which appeared to show that defendant had given his true name and date of birth, but also that he had been convicted of a felony.
On cross-examination, Officer Mauldin agreed that defendant said at an early point in the interaction, just after the officer had asked for ID: "I'm just trying to put my change in my pocket," then asked if he could reach down to do so. The officer replied that that was fine. But defendant then said, without explanation: "No, I'm going to stay just like this."
Asked if defendant appeared nervous when Officer Mauldin asked for ID or a social security number, the officer said defendant appeared nervous "[f[rom the entire contact." C. The Magistrate's Ruling
The magistrate made the following factual findings:
"The defendant . . . was pulled over by Officer Mauldin while traveling westbound [on] Lafayette Street in Stockton on his bicycle at [or] about 2:00 a.m. on June 26, 2016. The reason for the stop was a suspected violation of Vehicle Code [section] 21201. [Defendant] did not have lights on his bicycle, nor did he have a reflector visible from the rear of the bicycle.
"The stop occurred at night and the area was illuminated moderately by the officer's vehicle lights and possibly by streetlighting. The officer was in a marked patrol vehicle and in full uniform working with a partner on a patrol assignment.
"For purposes of ascertaining the facts related to the 1538.5 motion, the Court heard the testimony of Officer Mauldin and viewed Defense Exhibit 101. I will note that [on] Defense Exhibit 101 I only reviewed the limited portion of that exhibit that I was requested to view. . . . I did review that disk multiple times.
"Defendant's vehicle was stopped for a violation of Vehicle Code Section 21201. Defendant had no identification. Defendant gave and spelled his name and gave a birth date upon request. Defendant declined to give his social security number, ID number, or other means of confirming his identity.
"Defendant stated he had been previously convicted of a crime in San Joaquin County.
"Defendant was asked if he would consent to a pat search and defendant declined.
"Defendant stated that he had nothing in his pockets that the officer needed to worry about.
"When the defendant was told he was detained, he challenged Officer Mauldin to arrest him. Defendant was fidgeting with clinking-sounding objects in his left hand which he identified as coins.
"At a point in time when the defendant's hands are not clearly visible on Exhibit 101, Officer Mauldin tells defendant 'Don't be reaching.' Officer Mauldin testified that defendant was making quick movements toward his waistband. While the hands are not clearly visible at the time that the officer's statement 'Don't be reaching' is made, the visible portion of defendant's arms appear to be moving on Exhibit 101.
"Officer Mauldin testified that the defendant was wearing a bagg[y] shirt that covered his waist area and baggy pants. Thereafter, defendant tells Officer Mauldin on Exhibit 1[01] that he is putting change in his pocket and asks the officer if he can do so. When the officer says 'Sure,' defendant declines to do so. Defendant declined the officer's further request for a social security number and aggressively questioned whether the officers were actually law enforcement officers. Officer Mauldin showed defendant his identification. And an unidentified voice on Exhibit 101 states that defendant's questioning the officers' identification as law enforcement officers is disingenuous. Based on a reasonable person's standard it appears to have been so.
"Officer Mauldin then undertook a pat[-]down search. When defendant lifted his arms to his head, the officer testified that he observed a gun in defendant's pocket. The officer removed the gun, handed it to his partner, and handcuffed the defendant.
"The time period from when Officer Mauldin told defendant 'don't be reaching' until the pat[-]down search was undertaken was approximately one minute to one minute 15 seconds based on the length of time that passes on Exhibit 101."
After discussing the case law on reasonable suspicion justifying a pat-down search, the magistrate summarized the facts that gave the officer that suspicion:
"In this case there are specific and articulable facts upon which Officer Mauldin relied in conducting his limited pat[-]down search. Unlike [People v.] Dickey [(1994) 21 Cal.App.4th 952], in this case there was an actual traffic stop. The defendant was wearing baggy clothing which coupled with other suspicious circumstances may furnish the requisite fact to support a pat[-]down for weapons. [¶] . . . [¶] Officer Mauldin observed the defendant fidgeting and making movements toward his waistband and believed that the defendant was concealing a weapon. The defendant became more agitated as the encounter with the police officers continued for approximately one and a half minutes before the pat search was instituted. Officer Mauldin articulated specific facts that would make a reasonable officer feel in danger and he reasonably suspected that [defendant] might be armed." D. The Section 995 Motion
The magistrate also rejected defendant's claim (not renewed on appeal) that his detention was unduly prolonged. After doing so, the magistrate denied the section 1538.5 motion.
After hearing the section 1538.5 motion and viewing the video on a section 995 motion to dismiss the complaint, the superior court denied the motion, making factual findings of its own in the process. We discuss those only as necessary to address defendant's appellate argument. (Magee, supra, 194 Cal.App.4th at p. 182; McDonald, supra, 137 Cal.App.4th at p. 529.)
II. DISCUSSION
Defendant contends we must reverse the denial of his section 1538.5 motion because the video proves that Officer Mauldin's testimony on critical points was "inherently improbable or incredible." Defendant claims the video belies the officer's characterization of his demeanor as "nervous and fidgeting"; he also asserts that his hands were visible on the video during the time the officer alleged he saw a suspicious hand movement, and "there was none." Lastly, defendant claims that none of the other circumstances in the case, individually or in combination, justified the pat-down search. We are not persuaded.
Having viewed the video, we find that the magistrate's description of what it depicts is reasonable and supported by substantial evidence. As the magistrate noted, at certain moments in the video where the officer testified that defendant was reaching toward his waistband, defendant's hands are not visible; but as the magistrate also noted, nothing in the video, including defendant's visible arm movements, is obviously inconsistent with the officer's account. In particular, the magistrate agreed with the officer's judgment that defendant's demeanor was nervous to begin with and became more so. Nervous behavior, including furtive movements, combined with baggy clothing that could conceal a weapon, may be sufficient to create reasonable suspicion that a suspect is armed and dangerous. (People v. Collier (2008) 166 Cal.App.4th 1374, 1377-1378 & fn. 1.)
We also note that a reasonable officer under the circumstances could have formed such a suspicion from defendant's sudden change of mind after the officer gave him permission to put his coins in his pocket. While there might be innocent explanations for that change of mind, it was also susceptible to the explanation, which would give reasonable suspicion to justify a search, that defendant realized a move toward his pockets might inadvertently expose a weapon concealed by his baggy T-shirt. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 146; People v. Glaser (1995) 11 Cal.4th 354, 373; People v. Souza (1994) 9 Cal.4th 224, 242.)
Defendant asserts that the officer's testimony was inherently improbable and incredible because (1) the video does not show any furtive movements on defendant's part, and (2) according to the superior court on the section 995 motion, defendant's demeanor on the video was "calm" and whether the officer had reasonable suspicion that defendant was armed presented a "close case." These arguments fail.
As to defendant's first point, the magistrate found that the video was not inconsistent with the officer's description of furtive movements and that in light of the video his testimony was credible, and substantial evidence supports these findings. It does not meet defendant's burden on appeal merely to assert that the video could be construed differently.
As to defendant's second point, since the superior court is not supposed to reweigh the evidence or resolve factual conflicts on a section 995 motion (Magee, supra, 194 Cal.App.4th at p. 182), it is questionable whether the superior court should have made independent factual findings. But whether or not the superior court erred by doing so, its findings are irrelevant on appeal because we review only the magistrate's findings. (Ibid.; see also Hawkins, supra, 211 Cal.App.4th at pp. 199-200.) Therefore, we do not consider the superior court's impression of defendant's "calm" demeanor, or the court's assessment that the case was close—which the magistrate did not find it to be.
We conclude the magistrate's factual findings were supported by substantial evidence.
III. DISPOSITION
The order denying defendant's motion to suppress evidence is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
HOCH, J.