Opinion
E071551
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. ONOFRE TOMMY SERRANO, Defendant and Appellant.
Theresa Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. RIF1801863) OPINION APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Helios (Joe) Hernandez, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed. Theresa Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A police officer responding to a loitering complaint in a high crime area, detained defendant and appellant, Onofre Tommy Serrano, for questioning and a safety pat-down search. When defendant ignored the officer's repeated requests to sit down and failed to respond, the officer told defendant he was going to search defendant for weapons. Upon the officer placing his hand on defendant's shoulder, defendant fled on foot. After being chased down, defendant was searched and arrested for possessing a concealed, loaded revolver.
Defendant appeals from the judgment entered following jury convictions for being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1) ; count 1), being a felon in possession of ammunition (§ 30305, subd. (a); count 2), and misdemeanor resisting a peace officer (§ 148; count 3). The jury also found true a strike prior allegation based on a 1994 felony conviction for carjacking (§ 215). The trial court sentenced defendant to four years in prison. The court also ordered defendant to pay a $300 restitution fine (§ 1202.4), $300 stayed parole revocation fine (§ 1202.45), $40 per count court operations assessment (§ 1465.8), and $30 per count criminal conviction assessment (Gov. Code, § 70373).
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court erred in denying his motion to suppress the gun and ammunition evidence. Defendant further contends the trial court violated his due process rights by failing to determine whether defendant has the ability to pay the imposed fines, fees, and assessments. We reject defendant's contentions and affirm the judgment.
Defendant has filed a habeas corpus petition alleging that the delay beyond 48 hours, in arraigning him after his arrest, was unreasonable. He also contends that California's statute, section 29800, prohibiting felons from possessing firearms, violates the Second Amendment and is unconstitutionally vague. (In re the Matter of Onofre Tommy Serrano, case No. E072287). We have addressed defendant's writ petition by separate order.
II.
FACTS
The following facts, which served as the basis for defendant's evidence suppression motion and renewed suppression motion, are taken from the preliminary hearing transcript of testimony by Police Officer Rardin and defendant. During the preliminary hearing, the parties stipulated that there was no warrant to search defendant.
Officer Rardin testified to the following facts. Around 10:45 p.m. on April 14, 2018, Police Officer Rardin was dispatched to a Chinese restaurant in a high crime area. The area was known for drug crimes and for vehicle and commercial burglaries. The dispatch call was in response to a complaint that four people were loitering outside the restaurant. When Officer Rardin arrived at the restaurant at 11:10 p.m., the restaurant was closed. Four men, including defendant, were in front of the restaurant. Defendant stood next to a clearly displayed "'No Loitering'" sign, which was about 10 to 15 feet from the restaurant. Another man stood nearby, and two other men were sitting on the sidewalk.
Officer Rardin arrived in a marked patrol vehicle and was wearing his police uniform. Officer Rardin testified that his attention was drawn to the four men because it was nighttime and the men were near the closed Chinese restaurant, sitting under a "'No Loitering'" sign. Officer Rardin informed the four men that he was there in response to a radio dispatch call. The men said the call was not about them.
Officer Rardin told one of the two men who were standing to sit down, and the man complied. Officer Rardin wanted to control the situation by having all four individuals sit down, because he was alone against the four men. Officer Rardin then turned to defendant, who was standing, and told him to sit down. Defendant did not comply. Defendant stood and looked at Officer Rardin. Officer Rardin testified he was concerned because defendant was wearing a "bulky suit-like jacket that covered his waistband" and baggy jeans.
Officer Rardin further testified that it was "common for subjects that carry weapons to conceal them under baggie clothes, because it makes it harder for a police officer to see the outline of the weapon, and also makes it easier for them to hide it in their waistband." Officer Rardin said he had responded to around 50 calls in the area, during which numerous times he had encountered individuals carrying weapons.
After defendant refused to sit down, Officer Rardin explained to the four men that he was there in response to a radio call. Officer Rardin again told defendant to sit down. Defendant continued to stand and stare at Officer Rardin. He did not appear angry but raised Officer Rardin's concern. Officer Rardin again explained he was there in response to a call and told defendant to sit down. After Officer Rardin told defendant a third time to sit down, and he refused, Officer Rardin took hold of defendant's left arm and told him he was going to conduct a pat search for weapons. Defendant silently stared at Officer Rardin and then began to sit down, but stopped half way and stood up when Officer Rardin said to stand up because he was going to search defendant for weapons. Officer Rardin put defendant's left hand behind his back, while maintaining a hold on defendant. When Officer Rardin attempted to grab defendant's other hand to put it behind his back, defendant broke Officer Rardin's grip by pulling his arm away from Officer Rardin and then fled. During this time, the other three men remained sitting on the ground.
Officer Rardin chased defendant on foot and yelled at him numerous times to stop as defendant ran through a nearby parking lot. After running about 200 yards, Officer Rardin caught up with defendant, wrapped his arms around defendant, and took him to the ground as defendant resisted. Defendant ignored Officer Rardin's commands to stop resisting. Within less than a minute after Officer Rardin forced defendant to the ground, backup officers arrived and assisted in taking defendant into custody. During a search of defendant incident to his arrest, the officers found a loaded revolver inside the front waistband of defendant's pants. Officer Rardin testified that he was wearing a body camera and there was a camera in his patrol car that recorded the incident.
Defendant testified during the preliminary hearing to the following facts. During the day of April 14, 2018, defendant played pool with a friend, A.J., in downtown Riverside. The two met up later that evening around 10:30 p.m., at the Tower Pizza parking lot, and planned to walk to A.J.'s house a few blocks away. Tower Pizza is near a Chinese donut shop. While defendant and A.J. were talking in the parking lot, and were about to leave, a police vehicle pulled up, an officer jumped out of the car, and the officer immediately grabbed defendant and told him and A.J. to sit down. Defendant had been at the location for only about 45 seconds before the officer arrived. The other two people at the scene were transients living in tents.
A.J. complied with the officer's order to sit down. Defendant did not sit down because he thought it was his choice whether to do so, since he was not under arrest and he did not consent to the encounter. Defendant later testified he could not sit down when A.J. sat down, because the officer was holding defendant's arm. Defendant believed the officer was asking defendant if he voluntarily wanted to sit down.
The officer yelled at defendant to sit down and immediately grabbed defendant's arm, twisting it and causing pain. Defendant pulled away to stop the pain. The next thing he knew, defendant was on the ground, handcuffed. Defendant denied he had resisted the officer, other than to prevent the officer from twisting his arm and use unwarranted force. Defendant denied the officer told him he was going to do a pat search for weapons. Defendant also denied loitering or hanging out in the parking lot.
Defendant claimed he broke free from the officer's grip and fled to avoid the officer twisting his arm. The officer ran after defendant across the parking lot and grabbed him. Defendant ended up on the ground. Defendant denied resisting the officer while on the ground.
III.
MOTION TO SUPPRESS EVIDENCE
Defendant contends the trial court erred in denying his motion to suppress the gun and ammunition evidence. He argues Officer Rardin did not have a reasonable suspicion to physically restrain and pat search him. Therefore, the gun and ammunition evidence, recovered after defendant's arrest, was "fruit of the poisonous tree," which must be suppressed. We disagree.
A. Procedural Background
Before defendant's preliminary hearing, defendant filed a section 1538.5 motion to suppress the gun and ammunition evidence. The hearing on the motion was heard concurrently with the preliminary hearing. The court denied defendant's motion to suppress, finding that Officer Rardin's testimony was credible and therefore there was a reasonable suspicion to detain defendant.
A month later, defendant renewed his motion to suppress. The trial court denied defendant's request for a hearing on the renewed motion, and also denied his renewed motion to suppress. About a month later, defendant filed supplemental points and authorities in support of renewing his motion to suppress. Defendant included with his supplemental brief, photographs and videos showing defendant at the time of Officer Rardin's encounter with defendant, including defendant's initial detention, Officer Rardin's attempt to pat search defendant, defendant fleeing, and Officer Rardin chasing after him. The videos were taken from a camera on Officer Rardin's patrol car and a body camera Officer Rardin was wearing during the incident.
After reviewing defendant's supplemental points and authorities, along with the additional supporting evidence, the trial court heard and denied defendant's renewed motion to suppress.
B. Applicable Law
The Fourth Amendment prohibits unreasonable searches and seizures by the government. (U.S. Const., 4th Amend.) Warrantless searches by law enforcement officers "are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." (Katz v. United States (1967) 389 U.S. 347, 357.) One such exception is the "stop and frisk" or pat search exception first stated in Terry v. Ohio (1968) 392 U.S. 1 (Terry). In Terry, the United States Supreme Court held that, "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." (Id. at p. 30; accord Florida v. J.L. (2000) 529 U.S. 266, 270.)
In determining the reasonableness of the officer's conduct, the court looks to the totality of the circumstances to determine whether a reasonably prudent person in the circumstances would be warranted in believing his or her safety was in danger. (United States v. Cortez (1981) 449 U.S. 411, 417; Terry, supra, 392 U.S. at pp. 21-22, 27.) "And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Terry, supra, at p. 21.) "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citations.] And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." (Id. at p. 27.)
At trial, the "prosecution has the burden of establishing the reasonableness of a warrantless search" (People v. Jenkins (2000) 22 Cal.4th 900, 972), and it is the prosecutor's burden to establish the officers' actions were justified by an exception to the warrant requirement (People v. Williams (2006) 145 Cal.App.4th 756, 761). On appeal, it is defendant's burden to demonstrate error. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.)
"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." (People v. Glaser (1995) 11 Cal.4th 354, 362; see People v. Lomax (2010) 49 Cal.4th 530, 563.)
C. Discussion
1. Defendant's Initial Detention Was Proper
Defendant contends Officer Rardin did not have a reasonable suspicion justifying detaining and physically restraining him in an attempt to conduct a pat search. Defendant argues that, therefore, all subsequently acquired evidence was inadmissible as "fruit of the poisonous tree." We disagree.
Officer Rardin was justified in temporarily detaining defendant for the purpose of investigating the loitering complaint, based on specific and articulable facts, taken together with rational inferences from those facts. (Terry, supra, 392 U.S. at p. 21; Santos v. Superior Court (1984) 154 Cal.App.3d 1178, 1183-1184 (Santos).) A lawful detention of defendant did not require probable cause to arrest him for loitering. Officer Rardin only needed sufficient grounds to suspect a violation of the loitering statute, which entitled him to investigate. (Santos, supra, at p. 1183; In re Tony C. (1978) 21 Cal.3d 888, 893.)
Officer Rardin testified he detained defendant based on the following circumstances. Officer Rardin was dispatched around 10:45 p.m., to a Chinese restaurant in a high crime area. The area was known for drug crimes and for vehicle and commercial burglaries. The dispatch call was in response to a complaint that four people were loitering outside the restaurant. When Officer Rardin pulled up in front of the restaurant at about 11:10 p.m., the restaurant was closed. Consistent with the dispatch call, there was a group of four individuals, including defendant, near the restaurant. Defendant stood next to a clearly displayed "'No Loitering'" sign, which was about 10 to 15 feet from the restaurant. Another man stood nearby, and the two other men were sitting on the sidewalk. These facts and circumstances were sufficient for Officer Rardin to lawfully detain defendant and the other three individuals in furtherance of investigating the loitering complaint.
2. Officer Rardin's Attempt to Pat Search Defendant Was Lawful
The critical question in determining whether Officer Rardin acted reasonably when attempting to pat search defendant is, was the confrontation "'the kind of confrontation in which the officer can reasonably believe in the possibility that a weapon may be used against him?' [Citation.]" (People v. Lawler (1973) 9 Cal.3d 156, 161, quoting People v. Superior Court (1972) 7 Cal.3d 186; accord, Santos, supra, 154 Cal.App.3d at p. 1184.)
We conclude based on the totality of the circumstances that Officer Rardin could have reasonably believed defendant possessed a weapon that might be used against Officer Rardin and therefore his safety was in danger. (People v. Lawler, supra, 9 Cal.3d at p. 161.) Such circumstances include Officer Rardin responding to the loitering complaint involving the four people loitering outside a Chinese restaurant. When Officer Rardin arrived, it was after 11:00 p.m., the restaurant was closed, and there were still four people outside the restaurant 25 minutes after the complaint was made. Officer Rardin thus had reason to investigate the matter and further had reason to be concerned about his safety during the investigation, because it was late at night, he was confronting a group of four individuals by himself, and he was in a high crime area. Officer Rardin also had personal knowledge that a high percentage of those whom he had detained in the past had been in possession of weapons.
In addition, when Officer Rardin attempted to minimize the risk of harm by asking the four individuals to sit down, everyone except defendant sat down. When Officer Rardin initially asked defendant to sit down, defendant gave Officer Rardin a blank stare and remained standing. Officer Rardin's body cam video shows Officer Rardin getting out of his patrol car. Two individuals are sitting and defendant is standing nearby. While Officer Rardin is standing next to defendant, twice, he tells defendant to have a seat. Defendant does not sit down. Officer Rardin states he received a call about the group and again says to sit down. After the second time Officer Rardin tells defendant to sit down, defendant says, "Who me?" Officer Rardin puts his hand on defendant's left shoulder and defendant starts to sit down. Officer Rardin tells him to stand because he is "going to make sure" defendant does not have any weapons on him. Defendant then runs away. Although the photos and video evidence of the incident show that defendant was not wearing unusually baggy clothing, under the totality of the circumstances, Officer Rardin could have reasonably believed defendant might have been concealing a weapon in his jacket or pants.
Relying on Santos, supra, 154 Cal.App.3d 1178, defendant argues that, even if the initial detention was lawful, Officer Rardin's attempt to conduct a more intrusive pat search by grabbing defendant's arm was unlawful. We disagree. Santos is distinguishable. In Santos, supra, 154 Cal.App.3d 1178, the defendant filed a petition for writ of mandate challenging the trial court's ruling denying his motion to suppress evidence. The Santos court held that the officer had sufficient grounds to detain the defendant based on observing his two companions passing objects in a closed-off parking lot at 10:00 p.m. in a high crime area. The court, however, held the pat search of the defendant was not justified by the circumstances. (Id. at pp. 1184, 1186.) The Santos court concluded there was no evidence that the defendant was engaged in any criminal activity or had any weapons. Therefore there were insufficient grounds for the pat search. (Id. at pp. 1185-1186.)
Here, unlike in Santos, the officer-to-suspect ratio was one to four, and defendant refused to cooperate when Officer Rardin attempted to improve his safety by telling defendant to sit down three times. Defendant ignored Officer Rardin by remaining standing until Officer Rardin said he was going to search defendant for weapons. Then defendant dropped half way, stood up and fled. These circumstances, and reasonable inferences drawn from them, were sufficient to warrant Officer Rardin reasonably believing defendant was armed and dangerous. We therefore conclude Officer Rardin lawfully detained and initiated a pat search of defendant.
IV.
IMPOSITION OF FINES, FEES, AND ASSESSMENTS
On October 19, 2018, the trial court sentenced defendant to four years in prison for being a felon in possession of a firearm and ammunition, for misdemeanor resisting a peace officer, and for having a strike prior for a 1994 carjacking conviction. The court further imposed a $300 restitution fine (§ 1202.4, subd. (b)), a stayed $300 parole revocation fine (§ 1202.45), a $40 per count court operations fee (§ 1465.8, subd. (a)), and a $30 per count criminal conviction assessment (Gov. Code, § 70373). During the sentencing hearing, there was no mention of defendant's ability to pay the court-ordered fines, fees, and assessments, and defendant did not object to them.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant contends the trial court order imposing fines, fees, and assessments, without determining his ability to pay them, violated his constitutional right to due process. These fines, fees, and assessments were the statutory minimum amounts. The People argue defendant forfeited his objections to these fines, fees, and assessments by not objecting to them in the trial court. Regardless of whether defendant forfeited his due process objections, we will consider the matter on the merits. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7 ["The appellate courts typically have engaged in discretionary review only when a forfeited claim involves an important issue of constitutional law or a substantial right."].)
Defendant argues that under Dueñas, a stay of the restitution fine is necessary because "using the criminal process to collect a fine" a defendant cannot pay is unconstitutional. (Dueñas, supra, 30 Cal.App.5th at p. 1160.) Defendant argues that imposing fines, fees, and assessments, without a determination of ability to pay, violates his due process rights. Dueñas involved an unemployed, homeless mother with cerebral palsy, whose family, which included two young children, was unable to afford even basic necessities due to poverty and the inability to work. (Id. at pp. 1060-1161.) Dueñas's inability to pay several juvenile citations had resulted in suspension of her driver's license, which led to a series of misdemeanor convictions over the years for driving with a suspended license and additional court fees she was also unable to pay. (Id. at p. 1161.) Dueñas routinely served time in jail in lieu of paying the fines she owed and was sent to collections on other fees related to her court appearances. (Ibid.)
After pleading no contest to yet another misdemeanor charge of driving with a suspended license, the trial court imposed on Dueñas certain assessments and a $150 restitution fine, the minimum amount at the time, required under section 1202.4, subdivision (b). The trial court rejected Dueñas's argument that the imposition of the assessments and the fine without consideration of her ability to pay them violated her constitutional rights to due process and equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) The Court of Appeal in Dueñas reversed, holding that "the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[, and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, supra, at p. 1168.) The Dueñas court also held that imposition of a minimum restitution fine without consideration of Dueñas's ability to pay violated due process. (Id. at pp. 1169-1172.) The Dueñas court reversed the order imposing the fines, fees, and assessments, and directed the trial court to stay the execution of the restitution fine "unless and until the People prove that Dueñas has the present ability to pay it." (Id. at pp. 1172-1173.)
Even assuming without deciding that the trial court erred under Dueñas, supra, 30 Cal.App.5th 1157, in not conducting a hearing on defendant's ability to pay the fines, fees, and assessments, any such error was harmless because the record demonstrates it is probable defendant would be able to pay the fines, fees, and assessments, and it is highly unlikely the trial court would find otherwise if this matter were remanded for a hearing on defendant's ability to pay the fines fees, and assessments. We reach this conclusion based on defendant's testimony during the trial, and based on the fact the court imposed the minimum statutory fines, fees, and assessments.
When asked during the trial what defendant did for a living, defendant testified he was chief executive officer of Legal Eagle Documents, located in Torrance, California. Defendant stated he registered his company with the County of Los Angeles in 2015. He described the company as "a document preparation company that files forms and documents for pro per litigants with courts in the County of Los Angeles." Defendant stated that his training for the business included working with attorneys, attending Long Beach City College, with a major in administration of justice, and attending Los Angeles Trade Tech College, majoring in paralegal studies. Defendant testified that when he was not in California conducting his document business Monday through Thursday, he was in Arizona.
In determining defendant's ability to pay the fines, fees, and assessments, the trial court could consider defendant's future earning capacity, including the ability to earn prison wages. (See People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [defendant sentenced to prison did not show absolute inability to pay $10,000 restitution fine even though prison wages would make it difficult for him to pay the fine, it would take a very long time, and the fine might never be paid]; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court may consider the defendant's future ability to pay, including his ability to earn wages while in prison]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 ["defendant's ability to obtain prison wages and to earn money after his release from custody" are properly considered when determining whether a defendant has the ability to pay].)
The trial court could reasonably conclude defendant, not only had the ability to earn prison wages while incarcerated, but also was capable of post-incarceration employment, as demonstrated by defendant's trial testimony. (People v. Frye (1994) 21 Cal.App.4th 1483, 1487 [under section 1202.4, when "determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future"]; People v. Hennessey, supra, 37 Cal.App.4th at pp. 1836-1837 [the record need only "contain evidence supporting an implied determination of ability to pay"].)
Defendant revealed during his testimony that he has been resourceful in developing his own document business, which he may be able to continue after his release. If not, it would be reasonable to conclude that, based on defendant's age, education, training, and experience, he will be able to find employment of some type, which will allow him to repay the court imposed fines, fees, and assessments. There is also no evidence defendant has any mental or physical disabilities. His initial self-representation, trial testimony, and video evidence indicate he is able-bodied and capable of performing work.
Defendant is currently 46 years old and was sentenced in October 2018, to 4 years, with 377 presentence credits. The record does not disclose whether defendant has any assets from which he can pay the fines, fees, and assessments. Nevertheless, even assuming he has no assets, the record demonstrates that defendant has the ability to pay them from income earned while incarcerated or thereafter. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140.)
V.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. RAPHAEL
J.