Opinion
H049305
05-01-2023
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ANGEL GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. Nos. C1628723, C1776749)
Grover, J.
Defendant Anthony Angel Garcia appeals from a judgment sentencing him to 37 years, eight months in prison for convictions in two separate cases. He pleaded no contest to drug and weapons offenses in one case; in the other a jury convicted him of robbery and related crimes. Defendant contends the trial court improperly denied his motion to suppress evidence and his Romero motion to strike a prior conviction. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) He also contends the trial court violated Penal Code section 654 by imposing sentence for two convictions based on the same conduct. Finally, he seeks resentencing to allow retroactive application of newly enacted legislation that could reduce his sentence. We find no error in denying the suppression motion and the Romero motion. But the trial court in one instance neglected to apply Penal Code section 654 to prevent multiple punishments for the same conduct. Defendant is also entitled to be sentenced under the standards set by the new legislation. We will therefore reverse the judgment and remand for resentencing, with specific directions.
I. BACKGROUND
In October 2016 defendant was charged with possessing a short-barreled rifle (Pen. Code, § 33210); possessing a billy club (Pen. Code, § 22210); being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)) and ammunition (Pen. Code, § 30305, subd. (a)(1)); altering an imitation firearm (Pen. Code, § 20150, subd. (a)); transporting methamphetamine for sale (Health &Saf. Code, § 11379, subd. (a)); possessing methamphetamine for sale (Health &Saf. Code, § 11378); and possessing controlled substance paraphernalia (Health &Saf. Code, § 11364). The District Attorney further alleged defendant had a prior serious felony conviction that is a strike (Pen Code, §§ 667 subd. (a), (b)-(i), 1170.12), and served two prior prison terms. (Pen. Code, § 667.5, subd. (b).)
The charges stemmed from a traffic stop and search of a car where defendant was a passenger. San Jose Police officers stopped the car for following another vehicle too closely. There were three occupants, including the driver; defendant was in the front passenger seat. The officers ordered all three out and asked the driver for permission to search the car, which she gave. During the search, an officer saw a backpack-later determined to be defendant's-on the front passenger side floor and opened it. Inside was methamphetamine, marijuana, plastic baggies, drug paraphernalia, and a pellet gun that had been painted black. Near the front passenger seat police found a machete, a club-like weapon, and a short-barreled shotgun with ammunition.
Defendant moved to suppress the evidence found during the traffic stop. The motion was denied, and he later pleaded no contest to all charges in that case.
Defendant was charged in a separate case arising from armed robberies at two convenience stores. Defendant and another man (who was charged and tried as a codefendant), both carrying guns, entered a 7-Eleven store a little after 2:00 a.m. on September 24, 2017 and ordered the clerk to open the cash register. They took between $300 and $400. About an hour and a half later they went to another 7-Eleven and did the same thing, coming away with another $400 to $500. Defendant was arrested the next month when police stopped the car he was driving and found him with a loaded handgun and burglary tools. He was identified as one of the robbery perpetrators when detectives compared photographs of him from social media with security camera video from the convenience stores. At trial, the evidence presented included the video and the photographs. The jury retuned verdicts convicting defendant of two counts of second degree robbery (Pen. Code, §§ 211, 212.5 subd. (c)); two counts of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)); and being a felon in possession of ammunition. (Pen. Code, §30305, subd. (a)(1)). Defendant admitted a prior strike allegation.
The trial court sentenced defendant for both cases in June 2021. Defendant moved under People v. Superior Court (Romero), supra, 13 Cal.4th 497 for an order striking his prior strike conviction. The court denied the motion. For the charges to which defendant pleaded no contest, the court imposed a prison term of seven years and four months. (Two years for transporting methamphetamine; one year and four months for a personal arming enhancement; one year and four months for possessing a billy club; one year and four months for being a felon in possession of ammunition; and one year and four months for possessing an asp. Applying Penal Code section 654, the court stayed the sentences for possessing methamphetamine for sale; being a felon in possession of a firearm; and possessing a short-barreled rifle.) For the charges on which the jury returned guilty verdicts, the court imposed a term of 29 years, eight months. (Ten years for robbery (double the aggravated term because of the strike prior); an additional ten years for personally using a firearm; two years for the second robbery count; two years for being a felon in possession of a firearm; one year and four months for the second firearm possession count; one year and four months for being a felon in possession of ammunition; and a five-year enhancement for having a prior strike.) The court sentenced defendant to an aggregate prison term of 37 years, eight months.
II. DISCUSSION
A. Motion to Suppress
Defendant contends the trial court was incorrect to deny his motion to suppress evidence obtained from the car search. When reviewing the denial of a motion to suppress evidence, we defer to all factual findings by the trial court that are supported by substantial evidence. (People v. Nunes (2021) 64 Cal.App.5th 1, 5.) We use our independent judgment to decide the legal issue of whether those facts show an illegal search or seizure requiring evidence to be suppressed. (Ibid.)
Because we decide the merits of defendant's contention regarding the motion to suppress ruling, we do not reach his alternative contention that his counsel was constitutionally ineffective in litigating the motion.
Defendant first argues the evidence found in the car should have been suppressed because police stopped the car without reasonable suspicion a crime had been committed. Reasonable suspicion of criminal activity is required for a traffic stop. (People v. Wells (2006) 38 Cal.4th 1078, 1083). Suspicion of any Vehicle Code violation is sufficient. (People v. Durant (2012) 205 Cal.App.4th 57, 63.) Here, the stop was supported by reasonable suspicion of a Vehicle Code violation based on following another vehicle too closely. The officer who initiated the stop testified the car was following the vehicle in front so closely that when the lead vehicle braked, the subject car had to "abruptly" stop-so abruptly it "almost rear-end[ed]" the front vehicle, coming just "a few feet" from hitting it. From those observations, the officer reasonably suspected a violation of Vehicle Code section 21703, which prohibits following a vehicle "more closely than is reasonable and prudent."
Defendant makes much of the officer's testimony that he was unable to see whether the lead car signaled before slowing to execute a turn. But that fact does not eliminate the reasonable suspicion of a violation here. Indeed, the officer testified the reason he could not see whether the lead car signaled is that the subject car was too close to it. Because the circumstances support an objectively reasonable suspicion of a Vehicle Code violation, there was no error in the trial court's determination the traffic stop was lawful.
Defendant additionally asserts the evidence from his backpack must be suppressed because he did not give police consent to search it and the driver's consent to search her car did not justify a search of the backpack on the front passenger side. Police are allowed to search when given consent to do so by a person with authority to provide it. (People v. Valencia (2011) 201 Cal.App.4th 922, 928.) The scope of consent is measured by an objective reasonableness standard: how far would a reasonable officer understand the consent to extend? (People v. Tully (2012) 54 Cal.4th 952, 983.) And importantly, whether the consenting party had apparent authority to give consent to search an item later determined to belong to someone else is a factual question. (Id. at pp. 983-984 On review, we defer to the trial court's resolution of the issue unless there is no substantial evidence to support it. (Id. at p. 984.)
Here the trial court found the driver had apparent authority to consent to a search of the backpack, and substantial evidence supports that finding: As described by one officer during the suppression hearing, after ordering the driver and two passengers out of the car he conducted a records check on the driver and asked for her consent to search the vehicle, which she gave. Defendant was about 10 or 12 feet away, and did not object. On the floor of the front passenger side was an orange and black San Francisco Giants backpack. It was within reaching distance of the driver's side. The officers looked in the backpack and found the contraband.
That description is sufficient evidence to support the finding that the officer reasonably believed the backpack belonged to the driver. Merely because the backpack was on the passenger side does not preclude a reasonable belief that it belonged to the driver. Although possible, it would be unusual for a driver to hold a backpack on her lap while driving, and the pedals and steering wheel would make it difficult to place it on the driver side floor. Without other information to indicate the bag did not belong to the driver-someone else verbally claiming ownership, for example-the officer was not required to assume the backpack belonged to a passenger. Unsurprisingly, given its contents, defendant did not indicate before the search that the backpack belonged to him. Considering all the circumstances known to the officers, it was not unreasonable to assume the driver's consent to search the car extended to the backpack. (Compare People v. Stage (1970) 7 Cal.App.3d 681, 683, relied on by defendant, where the officer searched a jacket found during a car search based on the driver's consent despite actual knowledge the jacket did not belong to the driver.)
Similarly distinguishable is People v. Baker (2008) 164 Cal.App.4th 1152, 1159, also cited by defendant, where the court concluded a driver's consent to search did not extend to a purse found in the car, when the driver was male and the passenger the sole female occupant. There the court found the purse was "one typically carried by females in this society" and as a result "there could be no reasonable suspicion that the purse belonged to the driver." (Id. at pp. 1159, 1160, fn. 2.) Nothing in the record here suggests the outward appearance of the backpack would undermine the apparent authority of a female driver to consent to its search.
The trial court correctly found the initial traffic stop was based on reasonable suspicion of a Vehicle Code violation, and the court's finding that the driver had apparent authority to consent to the backpack search is supported by substantial evidence.
B. ROMERO Motion
Defendant contends the trial court should have granted the motion he brought at sentencing under People v. Superior Court (Romero), supra, 13 Cal.4th 497 to strike his prior strike conviction (carjacking, in violation of Penal Code section 215). Under Penal Code section 1385, subdivision (a), a trial court may strike or vacate a prior strike allegation or finding "in furtherance of justice." Such an order is justified where a defendant falls outside the spirit of the three strikes law based on the nature and circumstances of the current and prior offenses, and the defendant's background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.) We review for abuse of discretion a trial court's decision denying a Romero motion. (People v. Bernal (2019) 42 Cal.App.5th 1160, 1170.) That deferential standard requires the trial court's ruling to be affirmed so long as it is within the range of possible outcomes permitted by the controlling law. (Ibid.)
Defendant argues the trial court abused its discretion because when ruling on the motion the court mistakenly believed he was 24 years old when he committed the strike offense and did not understand he was actually much younger-just 15 years old, a fact favorable to him in the Romero analysis (particularly after recent changes in the law reforming sentencing for youthful offenders). Defendant surmises the court was unaware of his true age when he committed the strike because the prosecutor's brief opposing the motion incorrectly asserted he was 16 at the time; and because the court misstated his current age when ruling on the motion; saying, when considering defendant's future prospects, "he's 42 years old" (when in fact he was 34).
The weakness in defendant's argument is that the record does not clearly demonstrate the court did not realize he was 15 years old at the time of the strike offense. "Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) For that reason, we do not presume error; to the contrary, we assume the trial court correctly performed its duties. (People v. Davis (1996) 50 Cal.App.4th 168, 172.)
It is undisputed the trial court had the correct information before it: defendant's motion clearly stated he was 15 years old at the time of the prior strike offense; and the court also reviewed the probation report before sentencing, which highlighted defendant's correct age and date of birth. Given that it was presented with the correct information, we cannot presume the court based its ruling on incorrect information contained in the prosecutor's brief. Nor does the court's overstatement of defendant's age as of the sentencing hearing necessarily demonstrate lack of knowledge that defendant was 15 years old when he committed the strike offense. Particularly since defendant's motion directly informed the trial court of his age at the time of the strike offense, we are unwilling to conclude the court was unaware of that fact based solely on a misstatement of his then current age.
Our review of the record reflects the trial court considered the relevant factors and understood the scope of its discretion. No abuse of discretion has been shown in the denial of the Romero motion.
C. Application of Penal Code section 654
Defendant contends the trial court improperly imposed multiple punishments for the same conduct when it sentenced him (in case No. C1776749) for both being a felon in possession of a firearm (count 12) and for being a felon in possession of ammunition contained in the same firearm (count 14). As the Attorney General concedes, a person cannot be punished both for possessing a firearm and possessing the ammunition contained in it. (See People v. Sok (2010) 181 Cal.App.4th 88, 100.) We will therefore reverse the judgment and remand for resentencing with directions to stay the sentence on one of those counts under Penal Code section 654.
D. Newly Enacted Sentencing Legislation
After defendant was sentenced, Assembly Bill No. 518 was enacted. That legislation amended Penal Code section 654 to remove the former law's requirement that when conduct is punishable in multiple ways the defendant must be punished under the provision with the longest term of imprisonment. Under the new law, the trial court has discretion to impose any of the potentially applicable terms of imprisonment. That change could benefit defendant because in case No. C1628723, in which he pleaded no contest to multiple charges, the trial court imposed sentence on count one (transporting methamphetamine for sale); and stayed the sentences for counts two (possessing methamphetamine for sale), three (felon in possession of a firearm), and four (felon in possession of ammunition). Imposing sentence on one of those counts rather than count one would reduce defendant's sentence. Because the new law is ameliorative and the case not yet final, defendant is entitled to its retroactive application. (People v. Mani (2022) 74 Cal.App.5th 343, 379.) We will remand for resentencing so the trial court can consider whether to exercise its discretion under the new version of Penal Code section 654.
The Attorney General asserts in the respondent's brief that in sentencing defendant in case No. C1628723, the trial court incorrectly applied Penal Code section 654 to stay the sentences for being a felon in possession of a firearm and the separate offense of possessing a short-barreled rifle. The People have not appealed and do not point to an unauthorized sentence, as opposed to an error in applying the sentencing law to the facts. (People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence is an error that is clear and correctable, independent of any factual issues presented by the record].) We therefore confine our analysis to the issues raised by defendant in his appeal. (See Pen. Code, section 1238 [authorizing appeals by the People and setting forth permissible grounds].) But we note that because retroactive application of the new version of Penal Code section 654 presents changed circumstances, the trial court will on remand be allowed to reconsider all sentencing choices in determining defendant's aggregate sentence. (See People v. Valenzuela (2019) 7 Cal.5th 415, 425 [the full resentencing rule allows a trial court to revisit all sentencing choices when there are changed circumstances]; see also People v. Jones (2022) 79 Cal.App.5th 37, 46 [retroactive application of Penal Code section 654 constitutes changed circumstances sufficient to require a full resentencing].) Given that the case will be remanded for a new sentencing hearing, the People can raise any issues regarding the proper application of Penal Code section 654 in the trial court. In no event can defendant receive a longer aggregate sentence than was initially imposed, however. (People v. Henderson (2022) 14 Cal.5th 34, 56 [a defendant cannot be required to risk greater punishment by exercising right to appeal].)
III. DISPOSITION
The judgment is reversed and the matter remanded for resentencing. After resentencing, the Superior Court shall prepare and transmit to the California Department of Corrections and Rehabilitation a new abstract of judgment.
WE CONCUR: Greenwood, P. J. Danner, J.