Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F08173
HULL, Acting P. J.Defendant Fred Wayne Gilbert appeals from a judgment entered after his motion to suppress evidence was denied. Pursuant to a negotiated plea agreement, defendant pleaded no contest to possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and petty theft with a prior (Pen. Code, § 666). Defendant further admitted to having a prior narcotics conviction (Health & Saf. Code, § 11370.2, subd. (a)) and to having served five prior prison terms (Pen. Code, § 667.5, subd. (b)). In accordance with the plea agreement, the trial court dismissed the prior prison term allegations, sentenced defendant to seven years in state prison (the middle term of four years on the possession of cocaine for sale, plus three years for the prior narcotics conviction enhancement), and imposed other orders.
On appeal, defendant asserts (1) the trial court erred by not suppressing evidence secured after he was detained by police on suspicion of having stolen a bicycle light, and (2) the trial court prejudicially erred in refusing to consider defendant’s fourth motion to suppress, filed by his newly appointed counsel, after defendant’s three previous motions had been denied. We disagree with each contention and affirm the judgment.
Facts and Proceedings
The facts are taken from the evidence presented at the hearing on defendant’s motion to suppress which was held concurrently with defendant’s preliminary hearing.
On August 20, 2007, Officer August Johnson, a member of the bicycle patrol unit of the Sacramento Police Department, received a phone call from an off-duty probation officer named Josh Paris. Paris informed Officer Johnson that he was at the corner of 4th Street and K Street, witnessing a man pushing a bicycle eastbound through Westfield Plaza who had just unscrewed a bicycle light from the handlebars of another bicycle that was locked to a bicycle rack and then attached the light to the handlebars of the bicycle he was pushing. Paris described the man as “a male Black adult in his 40s wearing a straw hat, a white T-shirt, and short blue jeans shorts... [with] a purple backpack on.” Officer Johnson, while on the phone with Paris, rode his patrol bicycle westbound through the mall and quickly spotted defendant, who matched the description.
Officer Johnson cut off defendant’s path with his patrol bicycle and told him to stand next to the Gap store window; defendant complied. Johnson then asked defendant if he had any weapons. Defendant responded that he had “something in his backpack.” As defendant started to put his hands in his front pockets, Officer Johnson told him to keep his hands out of his pockets and slid the backpack off defendant’s back and placed it on the ground. Defendant was speaking rapidly and again tried to put his hands in his pockets. Believing defendant to be a potential danger to himself and others walking through the mall, Officer Johnson placed defendant in handcuffs and conducted a frisk for weapons.
As Officer Johnson patted down the outside of defendant’s right front shorts pocket, he felt “a ping-pong ball size[d] object... [with] small pea size[d] hard objects... [that] rolled off each other like they were covered with some sort of plastic.” Based on his training and experience, including over 200 hours of narcotics training and experience in over 50 investigations involving possession of cocaine base for sale, Officer Johnson believed the object in defendant’s pocket to be cocaine base. Officer Johnson asked defendant what was in his pocket; defendant responded, “some cocaine,” and explained that he had “relapsed last night.” Johnson retrieved the object, a clear plastic baggie containing 21 individually wrapped pieces of cocaine base, from defendant’s pocket. Officer Johnson then ran defendant’s name and discovered that he was on searchable probation. A search of the remainder of defendant’s belongings revealed three cell phones, a wallet containing $107, two screwdrivers, a flashlight, and an open box containing 47 sandwich baggies.
Probation Officer Paris arrived as Officer Johnson was talking to defendant. Paris confirmed that the bicycle light on defendant’s bicycle was the same light that had been removed from the locked bicycle on 4th and K. After defendant was formally arrested, Officer Johnson went to the victim’s bicycle and placed a Sacramento Police Department information card on the handlebars. Later in the afternoon, the owner of the bicycle, Christina Riker, called and confirmed that the light belonged to her.
Discussion
I The Suppression Motion
Defendant contends the trial court erred in denying his suppression motion. Specifically, defendant claims (1) the People failed to make a Harvey-Madden showing (People v. Madden (1970) 2 Cal.3d 1017 (Madden); People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey)), (2) the detention was unlawful because Officer Johnson lacked a reasonable suspicion that defendant had committed or was about to commit a crime, (3) the frisk for weapons was unlawful because Officer Johnson lacked a reasonable suspicion that defendant was armed, and (4) removal of the cocaine base from defendant’s pocket exceeded the scope of the frisk for weapons.
“The standard of appellate review of a trial court’s ruling on a motion to suppress 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; see also People v. Lindsey (2007) 148 Cal.App.4th 1390, 1395; People v. Coulombe (2000) 86 Cal.App.4th 52, 55-56.)
We will address, and ultimately reject, each of defendant’s contentions in turn.
A The Harvey-Madden Claim
Citing Madden, supra, 2 Cal.3d 1017, and Harvey, supra, 156 Cal.App.2d 516, defendant asserts that because “[O]fficer Johnson based the detention solely upon information provided by [Probation Officer] Paris, the prosecution was required to produce Paris to testify as to what he observed.” The law is to the contrary.
It is well-settled under California law that an officer may make an arrest “based on information and probable cause furnished by other officers.” (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553 (Ramirez), citing Remers v. Superior Court (1970) 2 Cal.3d 659, 666; Madden, supra, 2 Cal.3d at p. 1021; People v. Lara (1967) 67 Cal.2d 365, 374; People v. Alcorn (1993) 15 Cal.App.4th 652, 655; People v. Poehner (1971) 16 Cal.App.3d 481, 486-487; People v. Adkins (1969) 273 Cal.App.2d 196, 198.) “These cases, however, require that when the first officer passes off information through ‘official channels’ that leads to arrest, the officer must also show [the] basis for his probable cause. In other words, the so-called ‘Harvey-Madden’ rule requires the basis for the first officer’s probable cause must be ‘something other than the imagination of an officer who does not become a witness.’ [Citation.]” (Ramirez, supra, 59 Cal.App.4th at p. 1553.)
However, as recently observed by the Court of Appeal, Fourth Appellate District in People v. Gomez (2004) 117 Cal.App.4th 531 (Gomez): “There is no requirement that the officer whose personal observations were relied upon for purposes of the probable cause determination actually testify to his or her observations. To the contrary, the Harvey/Madden rule merely precludes the prosecution from relying on hearsay information communicated to the arresting officer that is not sufficiently specific and fact based to be considered reliable.” (Id. at p. 541, italics added.) In other words, the People must demonstrate that the information passed from one officer to another was “‘“‘factual rather than conclusionary,’ related ‘specific and articulable facts,’ was the product of personal observations by the informing officer, and was reliable.” [Citations.]’ [Citation.] Ultimately, the issue boils down to whether the latter officer’s reliance on the information was reasonable. [Citation.]” (Id. at p. 540.)
In this case, we do not hesitate in finding that Officer Johnson’s reliance on the information provided by Probation Officer Paris was reasonable. Officer Johnson testified that Paris informed him that he was personally witnessing a man pushing a bicycle eastbound through the mall who had just unscrewed a bicycle light from another bicycle and then attached the light to the handlebars of the bicycle he was pushing. Paris provided a detailed description of the man, whom Officer Johnson quickly located and detained. The information provided by Officer Paris was certainly factual rather than conclusionary, related specific and articulable facts, was the product of Paris’s own personal observations, and was undeniably reliable. (Gomez, supra, 117 Cal.App.4th at p. 540.) Notwithstanding defendant’s unsupported assertion to the contrary, the People were not required to call Paris to testify as to what he observed.
B The Detention
Defendant’s claim that Officer Johnson lacked reasonable suspicion to detain him is likewise without merit.
“To justify an investigative stop or detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity.” (People v. Conway (1994) 25 Cal.App.4th 385, 388, citing In re Tony C. (1978) 21 Cal.3d 888, 893; People v. Souza (1994) 9 Cal.4th 224, 230.) “The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case.” (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
“Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability.” (Alabama v. White (1990) 496 U.S. 325, 330.) However, “[p]rivate citizens who are witnesses to a criminal act, absent some circumstances casting doubt upon their information, are considered reliable.” (People v. Brueckner (1990) 223 Cal.App.3d 1500, 1504, citing People v. Ramey (1976) 16 Cal.3d 263, 269.) “Neither a previous demonstration of reliability nor subsequent corroboration is ordinarily necessary when witnesses to or victims of criminal activities report their observations in detail to the authorities.” (Brueckner, supra, 223 Cal.App.3d at p. 1504.) Reliability is further “indicated where the informer’s identity is known to the police, as the informer exposes himself or herself to potential liability for malicious prosecution or false reporting.” (Id. at pp. 1504-1505.)
In this case, Probation Officer Paris witnessed defendant remove the light from a locked bicycle and place it on the bicycle he was pushing through the mall. He immediately called Officer Johnson and provided a detailed description of his observations. There are no circumstances casting doubt on the information. Indeed, Paris continued on the phone with Officer Johnson until defendant was detained and immediately approached both Johnson and defendant to confirm that the light in defendant’s possession was indeed the light he witnessed defendant remove from the other bicycle. There can be no doubt that the information provided by Paris gave Officer Johnson reasonable cause to suspect that some activity relating to crime had taken place, i.e., theft of a bicycle light, and that defendant was involved in that activity. (See People v. Conway, supra, 25 Cal.App.4th at p. 388.)
C The Frisk
Defendant finally contends the frisk for weapons was unlawful because Officer Johnson lacked a reasonable suspicion that he was armed, and, if lawful, the removal of the cocaine base from defendant’s pocket exceeded the scope of such frisk. Again, we disagree.
As the Attorney General correctly points out, defendant’s argument on this point “unaccountably omits two significant material and operative facts.” First, prior to the frisk, Officer Johnson asked defendant if he had any weapons and defendant responded that he had “something in his backpack.” Defendant then put his hands in his front pockets, and again tried to put his hands in his pockets after Officer Johnson told him not to do so. In light of the fact that this interaction between Officer Johnson and defendant occurred in a populated shopping mall, defendant’s admission to possessing a weapon in his backpack and his repeated reaching for his pockets provided reasonable grounds to suspect that he was armed and dangerous. Second, defendant’s argument conveniently overlooks the fact that he admitted in his written motion to suppress and in argument to the trial court on the motion that he gave his consent to be frisked for weapons. These statements amounted to a judicial admission, removing the issue of his consent to be frisked from the case. (Cf. People v. Pijal (1973) 33 Cal.App.3d 682, 697; People v. Peters (1950) 96 Cal.App.2d 671, 677; see 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 100, pp. 802-803.)
Defendant’s argument that Officer Johnson was not justified in removing the cocaine base from his pocket is likewise without merit. As the Attorney General again correctly points out, defendant “unaccountably manages to overlook still another salient fact.” This time, defendant overlooks the fact that he admitted to Officer Johnson that he had “some cocaine” in his pocket due to the fact that he “relapsed” the night before. At this point, prior to removal of the cocaine from defendant’s pocket, Officer Johnson possessed probable cause to arrest defendant for possession of cocaine and perform a warrantless search of his person incident to that arrest. “Probable cause to arrest exists when the facts and circumstances known to the arresting officer ‘“‘warrant a [person] of reasonable caution in the belief that’ an offense has been or is being committed [by the person to be arrested].”’ [Citations.]” (People v. Souza, supra, 9 Cal.4th at p. 230.) “An officer may thoroughly search an individual incident to a lawful arrest. [Citation.] Moreover, when the formal arrest follows quickly on the heels of the challenged search, it is not important that the search preceded the arrest rather than vice versa. [Citation.]” (People v. Avila (1997) 58 Cal.App.4th 1069, 1075.)
Here, the facts and circumstances known to Officer Johnson were sufficient to warrant a person of reasonable caution in the belief that an offense had been committed by defendant. He therefore had probable cause to arrest defendant and to conduct a warrantless search incident to that arrest. Accordingly, the search of defendant and seizure of the cocaine base from his pocket was valid on this ground regardless of whether the scope of the search went beyond that authorized for a mere frisk.
II The Fourth Motion to Suppress
Defendant also contends the trial court erred in refusing to consider his fourth motion to suppress, filed by his newly appointed counsel, after three previous motions had been denied. Not so.
Additional Background Information
Defendant made his first appearance in this matter on August 22, 2007, and a public defender was appointed to represent him. On August 29, 2007, defendant’s attorney explained to the court that the public defender’s office faced an “overload” and asked that the matter be continued for two days. Defendant responded: “I would like to file a Marsden, a Faretta and represent myself pro per.” Russell Miller, an attorney from the Conflict Criminal Defenders, then asked the court to pass the matter for a few minutes to allow him to confer with defendant concerning representation. The court agreed. After consulting with Miller, defendant agreed to accept appointment of a panel attorney, and to continue the matter for two days. However, defendant made clear that by agreeing to the short continuance he was not giving up his right to a speedy trial, and was reserving his right to file a Faretta motion at his next appearance.
On August 31, 2007, attorney Robert Martin, Jr., who was handed the file that morning but had not yet conferred with defendant, appeared on defendant’s behalf. Defendant again indicated that he wanted to file a Faretta motion to represent himself because he had already prepared several motions he wanted to file immediately. Defendant was persuaded, however, to consult with his new attorney, after which he agreed to allow Martin to continue the representation. Martin then entered a plea of not guilty on defendant’s behalf, scheduled the preliminary hearing for September 14, 2007, and gave notice that a motion to suppress evidence would also be heard.
On September 14, 2007, the matter came on for preliminary hearing. Martin explained to the court that, because he had also been assigned a “very large trial,” he had been “somewhat neglectful” in filing several motions defendant had asked to be filed. Defendant initially agreed to a two-week continuance to allow Martin to review and file the requested motions. However, when the court explained to defendant that Martin would not necessarily be filing each and every motion, and when Martin further explained that he would not be filing any motions he considered to be frivolous, defendant withdrew his consent to the continuance and again indicated that he wished to represent himself. The court then explained to defendant the consequences of choosing to represent himself, after which defendant again consulted with Martin, and then withdrew his Faretta motion and agreed to the continuance to allow Martin to review and file the requested motions.
On September 28, 2007, another attorney stood in for Martin while he was in another courtroom and explained to the court that Martin would be seeking to further continue the matter to October 19, 2007. Defendant responded: “I’d like to file a Faretta and go pro per.” The matter was then sent to another department, where the court informed defendant that, rather than ruling on defendant’s Faretta motion, the court could grant a Marsden motion and appoint another attorney to represent defendant. Defendant agreed to proceed with a Marsden motion, explaining that he was denied access to Martin, who had not returned his phone calls or responded to his letters. When Martin arrived, he agreed that there was a conflict and that it would be in defendant’s best interest to have another attorney appointed to review the new discovery that had arrived that week, and to decide which of defendant’s motions would be appropriate to file. Defendant responded: “I can’t keep going up and down. I think it is best that I file a Faretta and go pro per and get into the law library.” After the court explained to defendant his right to an attorney and the various consequences of representing himself, defendant signed a written Faretta waiver, and the court granted defendant’s Faretta motion. Defendant then agreed to continue the preliminary hearing until October 19, 2007, so that he could file his motions.
Defendant immediately filed several motions, including a motion to suppress evidence pursuant to section 1538.5 of the Penal Code. Defendant’s motion to suppress was heard concurrently with the preliminary hearing on October 23, 2007. The facts adduced during the hearing on the motion to suppress are fully set forth above; for the reasons stated in part I, ante, the motion was appropriately denied. The court also held defendant to answer on both charges leveled against him.
On November 9, 2007, the court again addressed defendant’s motion to suppress, this time in conjunction with a motion to set aside the information pursuant to section 995 of the Penal Code and two motions to dismiss based on prosecutorial misconduct and police suppression of evidence. After brief argument on the motion, the court complimented defendant on his grasp of the Fourth Amendment, and denied the motion.
On December 31, 2007, scheduled to be the first day of defendant’s jury trial, the court again considered and rejected defendant’s motion to suppress, again in conjunction with the plethora of already-decided pretrial motions filed by defendant.
On January 2, 2008, prior to the swearing in of a panel of jurors, defendant asked the court to appoint counsel to represent him during trial. As defendant explained: “I’m a layman at law, but I was forced into this position because my attorney would not file necessary motions for me. And now I find myself in a courtroom to whereas I’m not really familiar with none of this, and I’m just trying to do what I can.” The court responded: “I did not, and do not at this point have any concerns, frankly, Mr. Gilbert, about your ability to represent yourself.... [Y]ou filed numerous motions, represented yourself at the preliminary hearing. And those motions, I have to say, contain all the relevant law indicating your ability to research and deal with the law.” At this point, defendant indicated that he is a “certified schizophrenic of high level,” that he was hearing voices, and that he requested psychiatric medication from the jail, but had yet to receive the medication. The court found defendant to be “competent to represent himself and that to make this motion at such a late stage of the proceedings is not timely.” However, the court also ordered defendant to be examined by Dr. Gregory Sokolov, pursuant to section 730 of the Evidence Code, in order to determine whether the court should express a doubt as to his mental competency under section 1368 of the Penal Code.
On January 4, 2008, the court received a report from the psychiatric unit that did not address the issue of defendant’s competence to stand trial, but did attach a copy of a jail psychiatric services initial screening assessment which indicated that defendant had complained of hearing voices and was previously taking medication for a psychiatric condition. In light of the screening assessment, and the fact that a jury panel had not yet been sworn, the court granted defendant’s request for counsel.
Robert Martin, Jr., again became defendant’s attorney. On April 2, 2008, Martin filed a 37-page motion to suppress on defendant’s behalf. The trial court declined to reconsider the motion.
Analysis
“As a general rule, a defendant is allowed only one pretrial suppression motion under section 1538.5 in the superior court, and that court is without jurisdiction to hear a second motion. [Citations.]” (People v. Nelson (1981) 126 Cal.App.3d 978, 981.) “However, there are exceptions to that general rule barring reconsideration of suppression motions, including circumstances in which a defendant is denied the right to fully litigate the motion at a hearing.” (People v. Smith (2002) 95 Cal.App.4th 283, 304, citing People v. Ramirez (1992) 6 Cal.App.4th 1583, 1589, fn. 4 [“Under the current law, a defendant is entitled to renew a suppression motion in the trial court... where defendant was not afforded a full and fair opportunity to litigate the issues raised in the original motion”].)
In essence, defendant asserts that he was denied a full and fair opportunity to litigate the suppression motion because he ineffectively represented himself during the hearing on the motion. However, a defendant may not assert on appeal that he inadequately or ineffectively represented himself “once he has elected to ‘shoot craps’ in the trial court and appear in propria persona.” (People v. Harris (1977) 65 Cal.App.3d 978, 987-988; see also People v. Barnum (2003) 29 Cal.4th 1210, 1215 [“a defendant who chooses to represent himself or herself after knowingly, intelligently, and voluntarily forgoing the assistance of counsel assumes the risk of his or her own ignorance”].)
However, in a creative attempt to circumvent the consequences of his decision to represent himself, defendant asserts that he was forced to represent himself in order to assert his right to a speedy trial, and therefore, his decision to represent himself was not voluntary. Defendant relies on People v. Bolton (2008) 166 Cal.App.4th 343. There, without sufficient evidence of a conflict, the trial court relieved Bolton’s attorney four days before trial and forced Bolton to make a choice between his right to counsel and his right to a speedy trial. (Id. at p. 356.) Bolton “chose” to represent himself rather than agree to a continuance, and was subsequently convicted by jury. (Id. at pp. 349-350.) The appellate court reversed his convictions, holding that under these circumstances, Bolton’s waiver of his right to the assistance of counsel was not voluntary. (Id. at p. 361.)
In this case, unlike Bolton, defendant did not elect to represent himself in order to secure his right to a speedy trial. The record clearly demonstrates defendant’s motive for representing himself--he wanted to file and argue the numerous motions he had prepared and erroneously believed to be meritorious. As already indicated, when Martin first received defendant’s case, defendant asked to represent himself because he had already prepared these motions and wanted them filed immediately. He then reconsidered this decision and allowed Martin to continue to represent him. However, on the date originally scheduled for the preliminary hearing, after Martin explained to defendant that he would not be filing any motions he considered to be frivolous, defendant again asked to represent himself. Defendant again thought better of his decision and agreed to a continuance to allow Martin more time to review and file defendant’s motions.
Two weeks later, Martin (through another attorney) requested another continuance. Defendant again asked to represent himself. After removing Martin as defendant’s attorney, the court explained to defendant his right to an attorney and the potentially dire consequences of representing himself; defendant signed a written Faretta waiver, and the court granted his request to represent himself. However, defendant’s decision to represent himself was not made in order for defendant to assert his right to a speedy trial. We know this because defendant did not assert his right to a speedy trial, but rather granted himself the continuance Martin had asked for so that he could file his motions. Defendant himself expressed to the court his motive for representing himself: “I was forced into this position because my attorney would not file necessary motions for me.”
In sum, defendant did not elect to represent himself in order to secure his right to a speedy trial. He did so in order to file motions his attorney indicated he would probably not file on defendant’s behalf. Defendant was thoroughly warned about the dangers of representing himself. He knowingly, intelligently, and voluntarily chose to represent himself, and must live with the consequences. Nor may he assert on appeal that he was denied a full and fair hearing on the suppression motion because he inadequately or ineffectively represented himself. Accordingly, the trial court did not err in refusing to hear defendant’s fourth motion to suppress.
Disposition
The judgment is affirmed.
We concur: ROBIE, J., BUTZ, J.