Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR125195
OPINION
Sepulveda, J.
Defendant Bryan Mazza appeals after being found guilty by jury trial of the following charges: one count of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)—count 1), one count of unlawful possession of a switchblade knife (§ 653k—count 3), and one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)—count 4). Defendant was sentenced pursuant to the three strikes law to two concurrent terms of 25 years to life for his convictions on counts 1 and 4. (§ 1170.12.) On appeal, defendant argues that (1) the trial court erred in denying his motion to suppress because he was arrested without probable cause, (2) the trial court erred in admitting dog-tracking evidence because it lacked a proper foundation, and (3) he is entitled to additional presentence conduct credits. We agree with defendant that he is entitled to additional presentence credits, but otherwise affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
I. Factual and Procedural Background
Because defendant challenges the denial of his motion to suppress pursuant to section 1538.5 and not the sufficiency of the evidence to support his conviction, the following facts are taken from the record before the trial court on defendant’s suppression motion. Defendant and the People agreed that the trial court could consider true all the facts in the parties’ moving and opposition papers. The trial court also considered evidence presented at the hearing on the motion to suppress, as well as an excerpt from the preliminary hearing transcript. Respondent notes that defendant cites to the preliminary hearing transcript on appeal, even though the parties agreed below only that their summaries of the transcript would be considered true, and not that the trial court would consider the entire preliminary hearing transcript. For purposes of our review of the trial court’s ruling on the motion to suppress, we consider only the record that the trial court considered.
About 12:30 a.m. on October 15, 2005, Napa Police Officer John Metz was driving his patrol car on Jefferson Street near El Centro Avenue, when he noticed an unoccupied silver Pontiac Grand Am in an area where new homes were under construction. Because Metz was concerned, based on his 11 years of experience, about possible vandalism and thefts at construction sites, he drove to the car to run its license plate. He learned that the car was registered to a rental car agency.
Metz got out of his car to investigate. The homes in the area were in the early stages of construction, and they lacked external walls. Boards were placed on the floors and entrances for construction workers to walk across. When Metz got out of his car, he could hear someone walking on the boards somewhere in the construction area.
Other officers arrived and set up a perimeter. Metz and Police Officer Brian Bandy walked through the area, and Metz noticed a wet spot on the ground near the house closest to Jefferson Street where it appeared that someone had recently urinated. Within the house, Metz discovered a burgundy fanny pack on a stack of lumber. The pack was not dirty or discolored by paint or other substances. Inside the pack, Metz found a .22 revolver loaded with five live rounds and one expended casing. The pack also contained a box of shells.
The pack was later found to contain a plastic bag holding 6.7 grams of methamphetamine. About 12:44 a.m., a police “K-9” handler was called to the scene with his dog to track a scent from the fanny pack. The handler’s testimony was not considered in connection with the motion to suppress; however, defendant filed an in limine motion requesting that a proper foundation be laid for any dog-tracking evidence presented at trial. The dog-tracking evidence is addressed in more detail in connection with defendant’s challenge to the trial court’s admission of the evidence. (Post, § II.B.)
Shortly after 2:00 a.m., another police officer saw someone dressed in dark clothing run across Jefferson Street and enter the same unfinished house where Metz had discovered the pack with the loaded revolver. The person turned on a flashlight and began training it on the floor of the house. A few minutes later, the officer lost sight of the person, who “disappeared” into the construction site. Metz then saw the person emerge from behind the houses, walk to the back of the silver car, and approach the driver’s door.
The parties disagreed below as to what happened next. According to defendant, as officers walked toward the car, it began moving. The officers (who were both in uniform) identified themselves, and ordered the driver to shut off the car. The driver shut off the car after it had traveled “about 10-15 feet,” before it had reached any significant speed. Two officers pointed weapons at the driver: Metz pointed his handgun, and another police officer pointed his AR-15 rifle. Metz opened the driver-side door and told the driver (later identified as defendant) to shut off his vehicle. According to defendant’s motion to suppress, he did so.
According to the People’s opposition to defendant’s motion to suppress, defendant did not stop his car until after Metz yelled at him twice to do so, and after he and another officer drew their weapons. After defendant stopped the car, defendant did not shut off the engine when Metz first told him to do so. Defendant complied after Metz opened the driver’s door and told defendant to shut off the engine and put his hands where they could be seen. Metz pulled defendant out of the car by his right arm after defendant refused to get out. Defendant was pulled from the car, pushed to the ground, and handcuffed. According to the People, Metz pushed defendant to the ground after he did not comply with two requests to lie face down on the ground. Defendant struggled when Metz told him to put his hands behind his back, and Metz removed his pepper spray and told defendant he would be sprayed if he did not comply.
Metz testified at the hearing on the motion to suppress that after defendant was handcuffed at gunpoint, “he wasn’t under arrest at that time. We tried to stop him to find out what he was doing there, and if a crime had been committed. So had he cooperated, shut off his vehicle, got out and spoke[n] to us, we probably wouldn’t have handcuffed him. However, since he didn’t, we handcuffed him and detained him until we could determine what was going on.” He later added, “I was trying to stop him to detain him to find out what he was doing in a closed construction site, why he was in the area where a loaded handgun was found, and to see, also, if . . . he may have been an employee that came back, forgot tools, or picked something up. Until I contacted him and talked to him, I have no idea if that’s true or not. Had he cooperated, stopped his car, shut it off, got out and talked to me when he was asked to, he would have never been taken out of the car and handcuffed. However, he chose not to do that, so I was forced to take other action.”
After defendant was placed in handcuffs, Metz patted him down and found an open switchblade knife in the right pocket of defendant’s jacket. The knife measured about two and one-half inches. Defendant also had another knife, as well as needle-nose pliers, in his pocket. Defendant was arrested for carrying a switchblade knife and for carrying a concealed dirk or dagger. A records check later revealed that defendant was on parole. He was booked into the Napa jail about 3:00 a.m.
Later that same day, defendant spoke with a visitor on the jail’s intercom system in the visiting area. He made certain admissions during the conversation—namely, that the fanny pack police found was his, and that he was trying to get rid of it. Corrections officers surreptitiously tape recorded the conversation and provided the tape to Napa police.
Defendant was charged by amended information with possession of a firearm by a felon (§ 12021, subd. (a)(1)—count 1), carrying a dirk or dagger (§ 12020, subd. (a)—count 2), unlawful possession of a switchblade knife (§ 653k—count 3), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)—count 4). It was further alleged that appellant had two prior strike convictions. (§ 1170.12, subds. (a)-(d).) Defendant admitted before trial that he had suffered the charged prior convictions.
The trial court denied defendant’s motion to suppress evidence that was collected as the result of defendant’s arrest. Defendant appealed following his subsequent convictions by jury trial of counts 1, 3, and 4. (Defendant was acquitted of count 2.)
The trial court also denied defendant’s motion to suppress the taped jailhouse conversation on the ground that the surreptitious recording was an illegal seizure. Defendant’s appellate counsel did not raise this issue on appeal. Defendant filed in propria persona a petition for a writ of habeas corpus challenging the taped conversation; we summarily denied the writ on August 27, 2007. (In re Mazza (Aug. 27, 2007, A118759) [petn. den.].)
II. Discussion
A. No Error to Deny Motion to Suppress.
“When, as here, we review a ruling on a defense motion to suppress evidence, we defer to the trial court’s factual findings, but we independently apply the requisite legal standard to the facts presented.” (People v. Celis (2004) 33 Cal.4th 667, 679.)
In denying defendant’s motion to suppress, the trial court concluded that when officers detained defendant, “that type of detention amount[ed] to an arrest.” The court found that the arrest was proper, because officers had probable cause to believe that defendant possessed a loaded firearm earlier that day. The trial court added that the officers “certainly had a right to pat search somebody under these circumstances who was behaving that way, who they thought possessed a handgun a little while earlier pursuant to a lawful detention. [¶] So that’s one reason why the pat search was okay, where they located the knife. But also, like I said earlier, they had a right to arrest him anyway. And so they had a right to the searching incident for that arrest and to find all the evidence they ended up finding.”
On appeal, defendant does not suggest that officers lacked reasonable suspicion to detain and patsearch him. Indeed, he acknowledges that police had reason to question him as he was leaving the scene of an ongoing investigation. Our review of the record confirms that, in light of the totality of the circumstances, Metz could point to specific and articulable facts that gave rise to a reasonable suspicion that defendant was involved in criminal activity. (United States v. Sokolow (1989) 490 U.S. 1, 7-8; People v. Coulombe (2000) 86 Cal.App.4th 52, 56.) Metz was concerned, based on his 11 years of experience, about criminal activity taking place overnight at construction sites. Metz saw defendant approach his car in the construction area where a loaded gun had been found. Police at that point had reasonable suspicion that justified temporarily detaining and patsearching defendant. (Terry v. Ohio (1968) 392 U.S. 1, 30-31.) As the trial court stated, “Certainly [the officers] had a right to detain him, stop the car and talk to him about what was going on at that point, because they didn’t know anything for sure, although they had their suspicions.”
Defendant argues that when officers pulled him out of the car and handcuffed him, this amounted to an arrest that was unsupported by probable cause, because the facts known to Metz would not lead a person of ordinary care and prudence to entertain an honest and strong suspicion that defendant was guilty of a crime. (People v. Price (1991) 1 Cal.4th 324, 410.) Respondent does not suggest that Metz had probable cause to arrest defendant. Respondent argues instead that police had a reasonable suspicion to stop and frisk defendant, and that the fact they pulled him out of his car and handcuffed him did not amount to an arrest that must be supported by probable cause. Our resolution of this issue therefore turns on whether the detention of defendant evolved into a de facto arrest that must be justified by probable cause.
“The distinction between a detention and an arrest ‘may in some instances create difficult line-drawing problems.’ [Citations.]” (People v. Celis, supra, 33 Cal.4th at p. 674.) “ ‘[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.’ ” (Id. at pp. 674-675, quoting In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385; see also People v. Soun (1995) 34 Cal.App.4th 1499, 1516.) “The scope of the intrusion permitted when a person is detained ‘will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.’ ” (People v. Bowen (1987) 195 Cal.App.3d 269, 273, quoting Florida v. Royer (1983) 460 U.S. 491, 500.)
Defendant argues that “police failed to use the least intrusive means available in contacting” him; however, he does not specify what less intrusive alternatives were available to officers. He points to the fact that police pulled him out of his car and handcuffed him on the ground, claiming (without citation to the record) that officers did so after he stopped his car without inquiring further. First, the record reveals that defendant was pulled from his car at gunpoint only after he refused repeated requests to stop his car, shut it off, and get out of his car on his own. As Metz testified at the hearing on the motion to suppress, “Had [defendant] cooperated, stopped his car, shut it off, got out and talked to me when he was asked to, he would have never been taken out of the car and handcuffed. However, he chose not to do that, so I was forced to take other action.”
Second, the fact that a defendant is detained and handcuffed at gunpoint does not necessarily mean that he is under arrest at that time. (People v. Celis, supra, 33 Cal.4th at pp. 675-676 [fact that suspect was stopped at gunpoint, handcuffed, and forced to sit on the ground for short period of time did not convert detention into arrest, where officer had reason to believe that defendant might otherwise flee]; People v. Soun, supra, 34 Cal.App.4th at pp. 1517-1519 [police not too intrusive when they removed possible murder suspects from car at gunpoint, where there was reason to believe they were armed]; People v. Bowen, supra, 195 Cal.App.3d at p. 274 [defendant not under arrest when he was handcuffed while victim was brought to area to identify him].) In light of the evidence that defendant resisted repeated police requests to stop his car in the early morning hours at a construction site where a loaded weapon had been found, police used the least intrusive means reasonably available to them in order to detain defendant. The detention did evolve into an arrest because defendant was pulled from his car at gunpoint and handcuffed.
In addition, as the trial court concluded, defendant’s refusal to turn off his car and get out when officers ordered him to do so meant that they had probable cause to arrest him for obstructing officers in the discharge of their duties. (§ 148.) Any subsequent search of defendant was therefore justified as a search incident to arrest. (People v. Dibb (1995) 37 Cal.App.4th 832, 837.)
In sum, we conclude that the trial court properly denied defendant’s motion to suppress. “Although our reasoning differs somewhat from the trial court’s reasoning, it is [well] settled that the trial court’s ruling must be upheld if there is any basis in the record to sustain it.” (People v. Marquez (1992) 1 Cal.4th 553, 578 [affirming the denial of motion to suppress]; see also People v. Camacho (2000) 23 Cal.4th 824, 830 [question of whether a search was unreasonable is question of law on which appellate court exercises independent judgment].)
B. Proper Foundation for Dog-Tracking Evidence.
1. Background
About 12:44 a.m., when officers were monitoring the construction site where defendant was found, Napa Police Officer James Stephenson, a “K-9” handler, arrived on the scene with his tracking dog Motto. Stephenson placed a trailing harness on Motto and brought him to where Metz was standing over a fanny pack on the ground. The pack had been moved about five or ten feet from where Metz had originally found it. Stephenson had Motto sniff the fanny pack and gave him his “trail command,” and told him to track “basically from the fanny pack.” Stephenson did not know before he asked the dog to track the fanny pack that it had been moved from its original location. Stephenson usually prefers that an object is not disturbed before he offers its scent to the dog, because it “can be” an important aspect of tracking. It is possible that the dog could scent off the last person to touch the item.
The dog took Stephenson southbound on Jefferson Street, over a bridge into a field, and underneath the bridge to near a creek. Stephenson realized at that point that the dog was no longer on any kind of a scent, so he cancelled the trail and brought the dog back to the area where Metz was. Stephenson then had his dog sniff the driver’s side door handle of the silver car, and told him again to search. The dog then took Stephenson north between two buildings under construction, then eastbound through the back of those buildings, and the dog then looped around to the front door of the house where Metz said that he had discovered the fanny pack.
Defendant filed a motion in limine requesting that a proper foundation be laid before the prosecution be permitted to present any dog-tracking evidence. The trial court held a hearing outside the presence of the jury pursuant to Evidence Code section 402.
Stephenson testified that he and his dog completed a 160-hour course on basic duties of a police dog, as well as a 160-hour course on narcotics, in October 2005, about 10 days before the dog’s tracking at the construction site. The course included instruction on detecting people in buildings or outdoors, trailing, tracking, and basic obedience. The dog was trained on “scent discrimination,” to detect one odor and follow only that one scent.
Before taking courses with Stephenson, Motto had received some training in the Czech Republic, and had become “titled” in trailing and tracking. After he arrived in the United States, the dog received all his training with Stephenson. As to how much training Motto received on tracking, Stephenson testified that “there were several days, usually with up to four or five trails a day, spent during training over the course of the month, almost every[]day, where we run at least one trail.” The dog was trained on scent discrimination, which means it was “trained to ignore other scents and only go on the one scent it’s told to sniff and not another scent. And that’s part of his training is to try and see if he will follow other scents, which he did not do. He’s been successful in discriminating the one scent he’s supposed to follow.”
Stephenson had no experience tracking with dogs before he started working with Motto in September 2005. When asked how many other details Stephenson had been on after his and his dog’s training ended but before the tracking performed in this case, Stephenson testified, “I can’t recall off the top of my head. It seems like there’s at least one type of detail almost every night.” He later provided a “guesstimate” that he and the dog had been on around five trails before the incident in question.
The trial court ruled that a proper foundation had been laid for dog-tracking evidence, and Stephenson was permitted to testify before the jury.
2. Analysis
Dog-tracking evidence is admissible upon a sufficient showing of the particular dog’s ability and reliability in tracking humans. (People v. Malgren (1983) 139 Cal.App.3d 234, 238 (Malgren), disapproved on another ground in People v. Jones (1991) 53 Cal.3d 1115, 1144-1145; People v. Craig (1978) 86 Cal.App.3d 905, 915 (Craig).) Each particular dog’s ability and reliability must be shown on a case-by-case basis. (Craig, at p. 915.) “This testimony should come from a person sufficiently acquainted with the dog, his training, ability and past record of reliability.” (Ibid.)
In Malgren, the court held that a proper foundation for dog-tracking evidence must include evidence that the circumstances of the particular tracking at issue make it probable that the person tracked was the guilty party. (Malgren, supra, 139 Cal.App.3d at p. 238.) The court held that the following must be shown before dog-tracking evidence is admissible: “(1) the dog’s handler was qualified by training and experience to use the dog; (2) the dog was adequately trained in tracking humans; (3) the dog has been found to be reliable in tracking humans; (4) the dog was placed on the track where circumstances indicated the guilty party to have been; and (5) the trail had not become stale or contaminated.” (Ibid.) Defendant argues that there was insufficient evidence of the third and fifth of these factors: whether Motto was reliable in tracking humans, and whether the trail had become contaminated. Reviewing the trial court’s ruling on the admissibility of evidence under an abuse of discretion standard (People v. Williams (1997) 16 Cal.4th 153, 197), we conclude that these elements were satisfied here.
As to whether Motto was reliable in tracking humans, defendant notes that Stephenson had been working with Motto no more than six weeks before the dog was used to track a scent at the construction site. Defendant argues that, unlike in Craig and Malgren, no evidence was offered that Motto was ever found to be “ ‘certified 100% accurate.’ ” (Cf. Malgren, supra, 139 Cal.App.3d at p. 238 [tracking dog “certified as 100 percent accurate”]; Craig, supra, 86 Cal.App.3d at pp. 916-917 [dog rated “at the 100 percent level”].) Although Stephenson did not specifically testify that Motto was 100 percent accurate at tracking humans, Stephenson did testify that the dog’s training involved running up to four or five trails a day, and that Motto was “successful” in discriminating the scent he is supposed to follow. Even assuming arguendo that this testimony was insufficient to establish Motto’s reliability, any error in permitting Stephenson to testify was harmless in light of his additional, consistent testimony before the jury. Stephenson testified that the dog had “always been very reliable. He’s never, since I’ve had him, had an unsuccessful trail.” We therefore disagree that any conclusions about Motto’s reliability are “entirely speculative.” Although it is true, as defendant argues, that Stephenson and Motto were relatively new to the police department’s K-9 unit, there was sufficient evidence that Motto was reliable in tracking humans.
The record also contains sufficient evidence that the trail had not become stale or contaminated. Defendant argues in passing that there was “likely contamination of scents presented” to the dog because Metz had handled both the fanny pack and the driver’s side door handle that the dog was asked to track. Stephenson acknowledged that handling an item can contaminate it for purposes of using it to track a human. Again, however, at the hearing pursuant to Evidence Code section 402, Stephenson testified that Motto was trained on scent discrimination, which means that the dog is “trained to ignore other scents and only go on the one scent it’s told to sniff and not another scent. And that’s part of his training is to try and see if he will follow other scents, which he did not do. He’s been successful in discriminating the one scent he’s supposed to follow.” (Italics added.)
Even assuming arguendo that this testimony was insufficient to show that the trail was not contaminated, any error was harmless in light of Stephenson’s additional testimony before the jury. He expanded on his explanation about compensating for possible contamination, stating that “the way we get around it is by having the dog sniff the person that contaminated it or be around the person that contaminated it so they discriminate against that person and know not to follow that person.” Because Metz was standing close to the dog when he scented off the fanny pack and the dog did not go to Metz after he sniffed the pack, Stephenson knew that the “dog’s nose was good enough to know he didn’t run right to Officer Metz and he knew to discriminate the scent.” With respect to whether trails become stale, Stephenson testified that “I believe there’s been documented cases of dogs trailing successfully after hours, even days.”
In sum, we find that a proper foundation was laid for the admission of dog-tracking evidence, because there was sufficient evidence that Motto was reliable in tracking humans and that the trail had not become contaminated. (Malgren, supra, 139 Cal.App.3d at p. 238.) To the extent that defendant argues in passing in his reply brief that there was insufficient evidence that the dog was adequately trained in tracking humans, we likewise reject this argument in light of Stephenson’s extensive testimony regarding Motto’s training. Because we conclude that the trial court did not abuse its discretion in admitting the evidence, we need not consider whether any supposed error was prejudicial.
C. Defendant Was Entitled to Additional Presentence Conduct Credits.
Defendant was sentenced pursuant to the three strikes law to two concurrent terms of 25 years to life for his convictions on counts 1 and 4. (§ 1170.12.) The trial court also imposed a concurrent term of six months in jail for his conviction on count 3. The trial court awarded defendant 332 days of actual credit, plus 49 days of presentence conduct credit.
On appeal, defendant argues that he was entitled to additional presentence conduct credits. Section 4019 provides that, absent certain exceptions that are not applicable here, a defendant receives credit for work or good behavior while incarcerated prior to commencement of sentence. The credit is available to a defendant sentenced to an indeterminate life term under the three strikes law. (People v. Philpot (2004) 122 Cal.App.4th 893, 908.) Moreover, presentence conduct credits are not limited under section 2933.1 to 15 percent of actual time where defendant’s current felonies are not violent. (Philpot, at p. 908.) The trial court, as well as counsel for the People and defendant, apparently believed that defendant’s presentence credits were limited to 15 percent.
Section 2933.1, subdivision (a), provides: “Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.” Defendant’s convictions were not for felonies listed in section 667.5, subdivision (c).
Respondent concedes that defendant is entitled to an additional 117 days of section 4019 conduct credits, for a total of 166 days. The abstract of judgment should therefore be modified accordingly.
“Presentence custody credit is calculated under section 4019 ‘ “ by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]” [Citation.]’ [Citation.]” (People v. Philpot, supra, 122 Cal.App.4th at p. 908.) Applying this formula, defendant is entitled to 166 days of credit (332 days of actual custody, divided by four is 83, times two is 166).
III. Disposition
The judgment is modified to reflect that defendant has 498 days of presentence credits, consisting of 332 days in actual custody and 166 days in conduct credits. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: Ruvolo, P. J., Reardon, J.