Opinion
A166694
04-11-2024
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO RUIZ SERRANO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Napa County Super. Ct. No. 20CR001491)
Mayfield, J. [*]
After the trial court denied his motion to suppress evidence (Pen. Code, § 1538.5), Francisco Ruiz Serrano pled no contest to possession for sale of a controlled substance (Health & Saf. Code, § 11351) and was placed on two years' formal probation. He contends the court erred by denying his motion to suppress based on a consensual encounter theory not raised by the prosecution, and by imposing conditions of probation that unconstitutionally delegated the court's authority to the probation officer. We affirm the denial of the suppression motion and ensuing conviction but remand the matter with instructions to reconsider the probation conditions.
BACKGROUND
I.
Factual Background
On the night of June 3, 2020, Christian Winegar, a Napa County Sheriff's Deputy assigned to the American Canyon Police Department, was on patrol in a marked patrol car in full uniform. Due to civil unrest related to the recent murder of George Floyd, an 8:00 p.m. curfew was in effect in Napa County.
Because Deputy Winegar was working as an American Canyon police officer on the evening in question, we refer to him as Officer Winegar.
About 10:14 p.m., Officer Winegar received a report from dispatch that a suspicious person in a brown sedan had been parked for 30 to 45 minutes in the parking lot which 7-Eleven shared with Walgreens. The caller could not see how many people were in the car or what was being done inside. Officer Winegar drove to the parking lot, arriving at 10:53 p.m. Another officer arrived "very shortly" thereafter. The only car in the lot was a brown sedan parked in a space near the middle. Officer Winegar thought it odd that the car had been there for such a long time. He was aware that the police had had "issues with 7-Eleven and Walgreens being victims of theft."
As Officer Winegar approached the car, he could not see what the occupant was doing. He contacted Serrano, who was sitting in the driver's seat. Serrano told the officer he had been parked there for 20 to 30 minutes "because he had come to buy something at the 7-Eleven and . . . he was having problems at the house that he wanted to remove himself from." Within a minute of contacting Serrano, Officer Winegar asked him if he was on probation or parole. Serrano said he was on probation.
Serrano's probation terms authorized police officers to search him. A search of his person and car revealed about 18 grams of heroin, about 0.5 grams of methamphetamine, $205 in cash, and a digital scale with suspected heroin residue.
We derive the information about the search from the probation report's summary of the police report; the parties do not dispute its accuracy.
II.
Legal Proceedings
The prosecution charged Serrano with selling, transporting, or offering to sell heroin (Health &Saf. Code, § 11352, subd. (a)-count 1); possessing heroin for sale (id., § 11351-count 2); loitering to commit a controlled substance offense (id., § 11532, subd. (a)-count 3); felony possession of heroin (id., § 11350-count 4); and felony possession of methamphetamine (id., § 11377, subd. (a)-count 5). The information alleged he had a prior strike conviction (Pen. Code, § 667, subds. (b)-(i)).
A. The Motion to Suppress
Serrano moved to suppress all evidence from the search. In opposition, the prosecution argued the officer had reasonable suspicion to detain Serrano to investigate possible criminal activity. The prosecution did not contend the interaction was a consensual encounter.
(1) The Hearing on the Motion
The trial court held an evidentiary hearing on the suppression motion. At the outset, the prosecutor advised the court that she and Serrano's counsel had "just discussed narrowing the scope to the detention up until the officer learns that the defendant is on probation." Officer Winegar, the sole witness, testified to the above facts about his contact with Serrano. At two points in the hearing, during colloquies about evidentiary issues, the court suggested the contact "could have been a welfare check."
The parties agreed that Serrano was detained after he admitted he was on probation. Serrano does not dispute the validity of the detention after this point, or contest the officers' entitlement to search him.
The prosecutor began her opening argument by stating that "the two issues here" were "whether there is reasonable suspicion to detain" and whether the legitimacy of the source of the tip was subject to dispute. She contended that the detention was justified because the officer had a basis for reasonable suspicion that Serrano was involved in criminal activity. Serrano's counsel argued the officer had no reason to detain Serrano because the prosecution did not present evidence that Serrano "did anything or exhibited any behavior that would be consistent with participating in any crime."
In her closing argument, the prosecutor stated, "multiple factors . . . led the officer to walk up to that car and speak with the driver. As your Honor mentions, it could be just a, 'hey, what's going on here, the car has been here for a long time?' [¶] But it also was the only car in a parking lot for a long time at a time when cars weren't really out. And in an area . . . where he knows there's thefts." In his closing, Serrano's counsel noted that the officer "doesn't say that he went up to him and had a consensual encounter. He said he went up to him and detained him immediately.... [Y]ou have to have suspicion that the person you are detaining is committing . . . or is about to commit a crime. And [it] was not articulated . . . what crime they thought Mr. Serrano was about to participate in."
The prosecutor's written opposition to the suppression motion suggested that Serrano could have been legally detained to investigate a possible violation of the county curfew. However, based on the officer's testimony that the curfew was "irrelevant to [Serrano's] detention," the court concluded, "I don't see it [the curfew] as an issue."
(2) The Trial Court's Ruling
The trial court denied the motion to suppress. It explained its ruling, in relevant part, as follows: "I didn't hear the officer say that he was investigating this particularly that a crime had been committed. My understanding is the officer testified he received information that there was some vehicle parked in the 7-Eleven Walgreens parking lot that had been there for a substantial period of time.... [¶] . . . [¶] It's not that he went up there and detained him. He went right up there and asked him-to ask somebody whether they are on probation or parole is a common question for officer safety just because those individuals, if they are, are oftentimes entitled to be searched for purpose of weapons or anything else. And within-that being the first question before he even asked him his name, Mr. Serrano, to his credit, indicated honestly that he was.... [¶] . . . [¶] . . . [¶] . . . I didn't hear him go up there and just arrest and detain him right away. He asked him first, 'are you on parole or on probation?' He answered, 'yes.' And then from thereon I think we know he was detained."
B. Plea and Sentencing
Following the denial of his motion to suppress, Serrano agreed to plead no contest to count 2, possession for sale of a controlled substance, and to admit his prior strike, in exchange for dismissal of the remaining charges. The trial court later granted his motion to strike his prior strike. In October 2022, the court suspended imposition of sentence and placed Serrano on formal probation for two years subject to conditions, including a 90-day jail term.
Despite his conviction pursuant to a plea of no contest, Serrano may appeal the denial of his motion to suppress (Pen. Code, § 1538.5, subd. (m)) and may appeal his conditions of probation, which were imposed after and do not affect the validity of his plea (Cal. Rules of Court, rule 8.304(b)).
I.
The Trial Court Did Not Err in Denying the Motion to Suppress.
Serrano contends the trial court erred in denying his motion to suppress for two reasons: It improperly relied on a consensual encounter theory the prosecution had waived by stipulation or forfeited, and, if not, its finding is not supported by substantial evidence. Neither argument has merit.
A. Serrano Forfeited His Claims of Waiver and Forfeiture.
Serrano contends that the trial court erred by relying on a consensual encounter theory because (1) the parties stipulated the interaction was a detention, or (2) the prosecutor forfeited the theory by failing to argue it or to elicit evidence of the relevant factors. He asserts that the error was prejudicial because the trial court "blindsided" his defense counsel by introducing this new theory "after the close of evidence." We do not reach the merits of these claims, for we have determined that Serrano forfeited them by failing to object on either ground when the court announced its ruling.
"It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided." (People v. Vera (1997) 15 Cal.4th 269, 278, overruled on other ground by People v. French (2008) 43 Cal.4th 36, 47, fn. 3.) A forfeiture claim can itself be forfeited: "Forfeiture is not a jurisdictional doctrine, and we are under no obligation to address a forfeiture argument . . . neither raised nor addressed below." (People v. Gallardo (2017) 4 Cal.5th 120, 128; see also In re Marriage of Winter (1992) 7 Cal.App.4th 1926, 19331934 [argument that ruling violated stipulation forfeited by failure to object].)
Here, the trial court raised the possibility that the contact might have been a welfare check early in the hearing, during a discussion of the admissibility of the CAD log. After stating it was inclined to admit the log, the court added, "Officers do have a duty if there's someone calling and saying, 'hey, this vehicle has been parked here for 20 minutes,' and it's not something where someone would do that, it also becomes a welfare check." Later, in a colloquy about an objection during Officer Winegar's testimony, the court alluded again to the possibility of a welfare check: "[I]t sounds like what this officer knew is that the vehicle had been sitting there for quite a while. And there were concerns that there could have been issues of theft or some other reason. [¶] I didn't know if it could have been a welfare check. As I mentioned earlier, I don't know, but it sounded like his concern was more why was this vehicle parked in that spot for so long a time. Whether it's F [sic], or some other reason, he had some concerns."
In her closing legal argument, the prosecutor argued, albeit briefly, that the encounter could have been consensual: "As your Honor mentions, it could be just a, 'hey, what's going on here, the car has been here for a long time?'" Serrano's counsel did not object to the argument but replied on the merits. The court then denied the motion based squarely on a consensual encounter theory.
Serrano cites cases which state that appellate courts should generally avoid relying on fact-specific legal theories not raised below as a basis for upholding the denial of a suppression motion on appeal. (See Robey v. Superior Court (2013) 56 Cal.4th 1218, 1242 [noting unfairness of affirming on alternate theory on which defense had no reason to offer evidence below].)
These authorities do not apply here. Unlike an appellant who must deal with a static record on appeal, Serrano had the opportunity to object to the trial court's ruling on the grounds he belatedly raises on appeal: that the prosecutor's written opposition had not notified him of a consensual encounter theory, that the ruling overlooked the parties' stipulation, and that the prosecutor had not elicited testimony on all factors relevant to a determination whether the encounter was consensual. Had Serrano raised these objections, the trial court could have heard argument on whether the prosecution had waived or forfeited the consensual encounter theory. Or it could have done what an appellate court cannot do: reopen evidence and allow the parties to further question Officer Winegar, who the record suggests had not left the courtroom. The parties could then have further developed the record of the "totality of the circumstances" surrounding the encounter between Officer Winegar and Serrano. (See People v. Tacardon (2022) 14 Cal.5th 235, 241-242 (Tacardon) [listing factors relevant to finding of detention].)
Although we need not reach the merits of Serrano's claim that the trial court's ruling violated the terms of the parties' stipulation, we note the ambiguity of the stipulation on which he relies. The prosecutor stated that counsel had "discussed narrowing the scope to the detention up until the officer learns that the defendant is on probation." This reflects an apparent agreement that the defense would not contest the legality of Serrano being detained, or of the search, after he admitted being on probation. It is not at all clear, however, that the parties agreed the initial encounter was a detention. If the parties had agreed that Serrano was detained and wanted to litigate only whether reasonable suspicion supported the detention, they could have so stated; but that is not what the prosecutor told the court. Moreover, when the prosecutor asked the officer a question about Serrano's probation, defense counsel objected based on the stipulation, stating the inquiry went "beyond the scope of what we had agreed upon." The prosecutor agreed and dropped the issue. But when the prosecutor argued, "it could be just a, 'hey, what's going on here, the car has been here for a long time?'" defense counsel did not object that her argument violated the stipulation; he simply opposed it on the merits.
Serrano concedes that he failed to object to the trial court's reliance on the consensual encounter theory but asks us to excuse the forfeiture because an objection would have been futile. While we can excuse a forfeiture if a trial court's prior comments had made clear it would surely overrule any objection (see, e.g., People v. Gomez (2018) 6 Cal.5th 243, 287), none of the trial court's comments suggested that, had Serrano raised his current objections, they would have "found an unsympathetic jurist." (People v. Seumanu (2015) 61 Cal.4th 1293, 1320.) The court's recognition that the facts elicited at the hearing might support a finding that Officer Winegar's interaction with Serrano was a consensual encounter did not imply a fixed prejudgment. (Cf. Gomez, at pp. 283-287.)
Serrano cites no authority excusing a forfeiture in remotely similar circumstances. Accordingly, his objections to the trial court's reliance on a consensual encounter theory are forfeited. (In re S.C. (2006) 138 Cal.App.4th 396, 408 [argument forfeited by failure to cite supporting authority])
B. The Court Did Not Err in Finding a Consensual Encounter.
Serrano claims that, even if the trial court could consider a consensual encounter theory, there is insufficient evidence to support its finding. To assess this claim, we view the evidence in the light most favorable to the ruling. (People v. Woods (1999) 21 Cal.4th 668, 673-674.) We infer all findings necessary to the ruling and defer to the trial court's "express and implied findings of fact if supported by substantial evidence." (Tacardon, supra, 14 Cal.5th at p. 242; Woods, at p. 673.) Ultimately, we evaluate de novo whether the officer's conduct "violates the Fourth Amendment, applying federal constitutional standards." (Tacardon, at p. 242.)
" 'Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests .... [Citations.] . . . Consensual encounters do not trigger
Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime.' [Citation.] . . . [Citations.] A detention, on the other hand, is a seizure, albeit a limited one, for which reasonable suspicion is required." (People v. Linn (2015) 241 Cal.App.4th 46, 57.)
In Tacardon, supra, 14 Cal. 5th 235, the California Supreme Court recently framed the issue as follows: "The outcome here turns on the distinction between a consensual encounter and a detention. [The officer] did not stop the car. It was already parked on the street when he saw it. Officers can approach people on the street and engage them in consensual conversation. [Citation.] So merely walking up to someone in a parked car is not a detention. The issue presented is whether there are additional circumstances, the totality of which transformed the encounter into a detention." (Id. at p 241.)
An encounter ceases to be consensual and becomes a detention"' "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." '" (Tacardon, supra, 14 Cal.5th at p 241 .)" 'In situations involving a show of authority, a person is seized "if 'in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,'" or" 'otherwise terminate the encounter.'" '" (Ibid.) "We consider the totality of the circumstances in determining whether a detention occurred. [Citations.]
Relevant circumstances may include: the presence of multiple officers, an officer's display of a weapon, the use of siren or overhead emergency lights, physically touching the person, the use of a patrol car to block movement, or the use of language or of a tone of voice indicating that compliance with the officer's request is compelled." (Id. at pp. 241-242.)
Here, Officer Winegar testified that after he arrived at the parking lot, he walked directly to the parked brown sedan to contact the occupant[s]." 'An officer may approach a person in a public place and ask if the person is willing to answer questions.'" (Tacardon, supra, 14 Cal.5th at p. 241.) That is precisely what Officer Winegar did: approach Serrano in the public parking lot of a convenience store and ask why he was parked in the lot, how long he had been there, and if he was on parole or probation.
Serrano argues that an immediate demand to know if a person is on probation or parole is a factor indicating the person has been detained. (See, e.g., People v. Garry (2007) 156 Cal.App.4th 1100, 1111-1112 (Garry).) Here, however, the trial court characterized the question as one commonly posed as a matter of "officer safety," which implies it found that Officer Winegar asked about Serrano's legal status for this reason. In Tacardon, supra, 14 Cal.5th at page 239, the fact that the officer asked a person sitting in a parked vehicle whether he was on probation or parole was insufficient, in the totality of the circumstances, to transform a consensual encounter into a detention. The record thus supports the trial court's finding that the initial encounter, up until the officer discovered Serrano's probationary status, was consensual.
Serrano challenges that ruling in two ways. First, he asserts that it was improper because the prosecution did not elicit specific testimony negating each possible way in which Officer Winegar might theoretically have made a show of police authority, such as drawing or brandishing a weapon, blocking Serrano's car with his patrol car, activating his patrol car's spotlight or emergency lights, touching Serrano, or speaking to him in a demanding or aggressive manner. (See Tacardon, supra, 14 Cal.5th at pp. 241-242.) We reject this argument because Serrano cites no authority holding the prosecutor was required to do so. (In re S.C., supra, 138 Cal.App.4th at p. 408.)
Second, Serrano argues that "[d]espite the sparse record in this case, many of the circumstances that typically demonstrate a detention . . . are present," pointing to the facts that Officer Winegar was in full uniform in a marked patrol car, and another officer arrived in presumably similar attire. Serrano also relies on Officer Winegar's testimony that he immediately "detained" Serrano, and points out that Winegar did not tell Serrano he was free to leave. Some of those circumstances are simply irrelevant; collectively, they fall short of establishing a detention. (See Tacardon, supra, 14 Cal.5th at p. 247; People v. Chamagua (2019) 33 Cal.App.5th 925, 929 (Chamagua).)
To begin with, the presence of two uniformed officers and a marked patrol car does not establish that an encounter is a detention. In Chamagua, supra, 33 Cal.App.5th 925, two sheriff's deputies pulled their marked patrol car alongside a pedestrian, got out of the car, and asked," 'Hey, how are you doing? What's your name? Do you got anything illegal on you?'" (Id. at p. 927.) The encounter was deemed consensual, as the deputies did not use or threaten force or issue commands but "simply asked questions." (Id. at p. 929 ["Asking questions, including incriminating questions, does not turn an encounter into a detention"]; see also People v. Zamudio (2008) 43 Cal.4th 327, 346 [that officers were in uniform has" 'little weight in the analysis'" of whether detention occurred], quoting United States v. Drayton (2002) 536 U.S. 194, 204.) Chamagua relied on Florida v. Bostick (1991) 501 U.S. 429, in which the United States Supreme Court described "the proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions" as "by no means novel," having been "endorsed by the Court any number of times." (Bostick, at p. 439.)
We disagree with Serrano's assertion that the case more closely resembles People v. Garry, supra, 156 Cal.App.4th 1100, in which we held that a detention occurred. In Garry, an officer patrolling a "high crime, high drug" area in Vallejo at 11:23 p.m., saw the defendant standing near a parked car. (Id. at p. 1103.) The officer stopped approximately 35 feet away and illuminated the defendant with his patrol car spotlight. (Id. at p. 1104.) As the officer walked" 'briskly'" toward him, the defendant began walking backwards" '[w]ith a look of . . . nervousness and shock,'" saying"' "I live right there," '" while pointing to a house on his right. (Ibid.) The officer said "Okay, I want to confirm that,'" then asked the defendant if he was on probation or parole. (Ibid.) After the defendant answered affirmatively, the officer grabbed his arm. (Ibid.) In determining that the encounter was a detention, we emphasized that the officer had illuminated the defendant using the spotlight on his patrol car, rushed towards him while pointedly questioning him about his legal status, and disregarded his representation that he was merely standing outside his own home. (Id. at pp. 1111-1112.)
There is no evidence Officer Winegar shone a spotlight on or advanced aggressively toward Serrano. The officer's testimony that he could not see what Serrano was doing as he approached the car supports an implied finding he did not use a spotlight. Nor is there evidence he "rushed" or walked "briskly" toward Serrano's car.
This case is much closer not only to Chamagua, supra, 33 Cal.App.5th 925, but to Tacardon, in which our Supreme Court expressly distinguished Garry. (Tacardon, supra, 14 Cal.5th at p. 251.) In Tacardon, an officer in a marked patrol car made a U-turn after passing a smoke-filled, parked car; pulled up behind the car and illuminated it with his patrol car's spotlight; and approached at a walk. (Id. at pp. 238-239, 247.) The court held he did not thereby detain the driver. (Id. at p. 247.) Tacardon strongly supports the ruling here: the primary way in which Officer Winegar's conduct differed from that of the officer in Tacardon was that he did not use a spotlight, making the encounter here even less like a detention.
Serrano's remaining contentions do not alter our conclusion. He states that Officer Winegar characterized the encounter as a detention during his testimony. However, the officer's state of mind is irrelevant" 'except insofar as his overt actions would communicate that state of mind.'" (Tacardon, supra, 14 Cal.5th at p. 242.) Serrano argues that Officer Winegar's conduct communicated an intent to detain but fails to cite to evidence supporting this argument. The argument has therefore been forfeited. (Air Couriers Internat. v. Employment Development Dept. (2007) 150 Cal.App.4th 923, 928 [arguments not supported by reference to appellate record are forfeited].)
Finally, Serrano asserts that Officer Winegar's failure to tell him he was free to leave is a factor indicating that he was detained. But an officer need not expressly tell a citizen he or she is free to leave. (United States v. Drayton, supra, 536 U.S. at pp. 203-204.) Instead, "the crucial test is, whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" (Florida v. Bostick, supra, 501 U.S. at p. 437.) Here, Officer Winegar spoke to Serrano for less than a minute before Serrano acknowledged that he was on probation. The lack of an advisement that he was free to leave does not undermine the conclusion, based on the totality of the circumstances, that the encounter up to that point was consensual.
II.
The Challenged Probation Terms Are Unconstitutional, and the Forfeiture Doctrine Does Not Preclude Relief on Appeal.
Serrano contends, and the Attorney General does not dispute, that the trial court violated the separation of powers doctrine by imposing probation conditions that delegated its sentencing authority to the probation officer. (People v. Smith (2022) 79 Cal.App.5th 897, 903.) The three conditions at issue required Serrano to participate in three programs-an alcohol and drug problem assessment program, an outpatient or residential treatment program, and the Community Corrections Service Center-only "if required by" or "if directed by" his probation officer. In Smith, our colleagues in Division Five held that a treatment condition violated the separation of powers doctrine because it delegated "discretion to decide whether [the defendant] must attend a residential program, as opposed to an outpatient program." (Smith, at p. 903.) The conditions here delegated not only that discretion, but one that is even more fundamental: the power to decide whether Serrano must participate in the three programs at all. The conditions are thus unconstitutional on their face. (Ibid.)
The record does not indicate the nature of the Community Corrections Center program.
The Attorney General contends Serrano forfeited his objection by not raising it below. Serrano replies that we may address the claim because it raises a pure question of law not dependent on facts developed at sentencing. (See In re Sheena K. (2007) 40 Cal.4th 875, 884-886 (Sheena K.) [declining to extend forfeiture rule to certain facial constitutional challenges to probation conditions].) The Attorney General acknowledges the claim raises a pure question of law but argues that, in Sheena K., two additional factors supported the conclusion that the forfeiture rule should not apply, and neither factor is present here. (See Sheena K., at pp. 886-889 [outlining bases for ruling].)
We need not resolve that dispute. Even if Serrano's claim falls outside Sheena K. and is forfeited, we have discretion to reach it to require correction of a clear constitutional error. (People v. Vera, supra, 15 Cal.4th at pp. 276277.) One reason our Supreme Court held in Sheena K. that it was not "legally imperative, practical, or wise to extend the forfeiture rule" to the sort of facial challenge at issue there was the fact that appellate courts in any event always have discretion to "review a forfeited claim." (Sheena K., supra, 40 Cal.4th at p. 887, fn. 7.) Courts often exercise that discretion because of their "unwillingness to ignore 'correctable legal error.'" (Id. at p. 887.)
For that reason, we exercise our discretion to reach the correctable error Serrano has identified. We remand the matter with directions for the trial court to exercise its discretion to decide whether Serrano must participate in programs of the types specified in the challenged conditionsand, if so, whether any treatment program must be residential or outpatient.
Because the record is silent as to the nature of the Community Corrections Services Center program, we cannot discern whether the trial court properly imposed the condition based on the facts of this case and the purpose of the condition. Nor can we tell whether the condition is duplicative of those requiring Serrano to enroll in an alcohol and drug assessment and a treatment program, if required by his probation officer. On remand, the trial court should reconsider whether to impose this condition and, if so, whether to modify it in light of the facts of this case and the purpose of the requirement.
DISPOSITION
The matter is remanded to the trial court with directions to strike from the judgment, and reconsider, probation conditions 20, 25, and 26. In all other respects, the judgment and formal order of probation are affirmed.
We concur: Richman, Acting P. J., Miller, J.
[*] Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.