Opinion
H035617
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. MARTIN MURGIA CORONA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. F17331)
Defendant Martin Murgia Corona appeals following his no contest plea to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a)). On appeal, he asserts the court erred in denying his motion to suppress evidence pursuant to Penal Code section 1538.5. In addition, defendant argues the evidence was insufficient to support the trial court's finding that he had the ability to pay the drug program fee pursuant to Health and Safety Code section 11372.2.
STATEMENT OF THE FACTS AND CASE
In November 2008, Detectives Hansen and Howe were working in Santa Cruz as part of the Narcotics Enforcement Team. At the time, the officers were working separately, but were both looking for Christy Ann Young, who they believed had an active warrant out for her arrest.
While Detective Howe was on patrol, he saw Young get into a Nissan Frontier driven by defendant. Howe began to follow the Frontier, and radioed Detective Hansen that he saw Young get into the car. Hansen then saw the Frontier pull onto Delcosta Street. At the time, Hansen also saw that the Frontier had no front license plate.
Defendant pulled the Frontier to the side of the road and stopped voluntarily. Young got out of the car, and walked over to Hansen, about 50 feet away from the Frontier. As Hansen was making contact with Young, Howe drove up to the scene.
While Hansen was attending to Young, Howe went over to the Frontier and made contact with defendant, who was in the driver's seat. Howe told defendant he was being stopped for failing to have a front license plate, and collected defendant's driver's license, car registration, and proof of insurance. Howe then walked over where Hansen was standing with Young. Howe estimates that he spent two minutes at most talking to defendant before walking over to Hansen.
When Howe walked over to Hansen, Hansen told him there was no outstanding arrest warrant for Young, because she had gone to court the previous day and addressed it. Sheriff's record confirmed that Hansen called regarding the status of Young's warrant at 4:30 p.m.
After calling on Young's warrant status, Hansen walked over to defendant, and asked him about the front license plate of the Frontier. At the time, Hansen intended to issue defendant a citation for the missing license plate. As Hansen was talking to defendant, he noticed that defendant "appeared anxious, nervous, his skin was clammy, sweaty, and he was speaking rapidly." Based on his experience, Hansen believed defendant was under the influence of narcotics. Hansen began asking defendant about drug use, to which defendant responded that he had not used drugs since "[19]99, 2000." Hansen then asked defendant questions about Young, saying: "How about Ms. Young, could she have left anything that could get you in trouble in the vehicle?" Defendant responded: "I don't think so." Hansen said: "Are you sure?" Defendant said: "I don't know." Hansen then said: "Well, you wouldn't mind if I search and make sure? Defendant said: "Yeah, go ahead."
Hansen proceeded to search defendant's car. During the search, Hansen found crystalline chards of what he believed and was later confirmed to be methamphetamine on the driver's seat and driver's side floor. Hansen also found two plastic bindles with white residue in the car.
After the search, Hansen did a full evaluation of defendant to determine if he was under the influence of a controlled substance. After taking defendant's pulse, and checking his eyes, Hansen believed defendant was under the influence. (RT 15) Hansen estimated that he checked defendant for symptoms about 10-15 minutes after the initial traffic stop.
Sheriff's records show Hansen called to check on defendant's license and registration at 4:41 p.m.
In December 2008, defendant was charged by information with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)).
Defendant filed a motion to suppress evidence pursuant to Penal Code section 1538.5. The trial court denied the motion after hearing.
Following the denial of the motion, defendant entered a plea of no contest to possession of methamphetamine, in exchange for the dismissal of being under the influence of a controlled substance, and drug diversion under Proposition 36. The court suspended imposition of judgment, and placed defendant on three years of probation, with the condition that he enter and complete a drug treatment program.
In 2010, this court granted defendant's motion for relief from default, and defendant subsequently filed a notice of appeal.
DISCUSSION
On appeal, defendant asserts the trial court erred in denying his motion to suppress evidence based on a prolonged detention. In addition, defendant argues the evidence is insufficient to support the required finding that defendant had the ability to pay the drug program fee pursuant to Health and Safety Code section 11372.2.
Motion to Suppress
The basis of defendant's motion to suppress is that he was subjected to an unreasonably prolonged detention in violation of the Fourth Amendment.
" ' "An appellate court's review of a trial court's ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] 'The [trial] court's resolution of each of these inquiries is, of course, subject to appellate review.' [Citations.] [¶] The court's resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review." ' [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 255.)
Defendant does not dispute that the officer had reasonable suspicion to initiate the traffic stop after seeing that his truck was lacking a front license plate. Defendant asserts, however, that his motion to suppress should have been granted because his detention was unreasonably prolonged since it exceeded the time that it would normally take to issue a traffic citation or warning for the missing license plate, and that his consent to search the vehicle was invalid because it was obtained during the illegal detention.
The record shows defendant's total detention lasted approximately 13 minutes. Specifically, Howe testified he spent less than two minutes when he first contacted defendant before walking over to Hansen. At that time, which was 4:30, Hansen called the sheriff's department to check on Young's warrant status. After contacting defendant, receiving consent to search the car, and evaluating defendant's symptoms of narcotics intoxication, Hansen called the sheriff's department to check on defendant's warrant status at 4:41, 11 minutes later. This, coupled with the less than two minutes from the initial contact equals 13 minutes of total time.
The record also demonstrates the length of the detention before defendant gave Hansen consent to search the Frontier. Hansen testified that when he had defendant get out of the car so he could conduct the search, defendant had been there a total of seven or eight minutes.
Defendant argues a seven or eight minute detention for a minor traffic violation such as a missing front license plate was unreasonably prolonged under the circumstances.
The California Supreme Court discussed the permissible scope of a traffic stop in People v. McGaughran (1979) 25 Cal.3d 577 (McGaughran). In McGaughran, a police officer stopped a car going the wrong way on a one-way street. After explaining why he had stopped the car, and obtaining and examining identification from the defendant, who was driving the car, and from the defendant's passenger, the officer initiated a warrant check. The warrant check revealed arrest warrants for both men. Searches incident to their arrests turned up evidence that was used to convict the defendant of burglary. (Id., at pp. 581-582.)
"The Supreme Court held that '. . . the officer may temporarily detain the offender at the scene for the period of time necessary to discharge the duties that he [or she] incurs by virtue of the traffic stop.' ([McGaughran, supra,] 25 Cal.3d at p. 584.) For example, the officer could ask for and examine the offender's driver's license and registration; discuss the violation with the offender; listen to his or her explanation; then either give the offender a warning, or write out a citation and obtain the offender's promise to appear. (Ibid.) 'If a warrant check can be completed within that same period, no reason appears to hold it improper: because it would not add to the delay already lawfully experienced by the offender as a result of his violation, it would not represent any further intrusion on his rights.' (Ibid.)" (People v. Bell (1996) 43 Cal.App.4th 754, 765-766 (Bell).)
In McGaughran, the court found that "the officer had performed all these duties up to the point of giving the defendant a warning and releasing him. ([McGaughran, supra,] 25 Cal.3d at p. 585.) However, '[i]nstead of promptly releasing defendant and his companion with such a warning, [he] returned to his patrol car and detained them for an additional period while he placed a call over police radio to inquire whether there were outstanding warrants in either name, and waited for an answer to that call. It is undisputed that this second period of detention lasted "approximately ten minutes." ' (Id., at p. 586.) The 'additional period of detention' was not 'reasonably necessary' to the process of dealing with the initial offense, and hence was unconstitutional. (Id., at p. 587.)" (Bell, supra, 43 Cal.App.4th at p. 766.)
Under McGaughran, an investigatory stop exceeds constitutional limits when it extends beyond what is reasonably necessary under the circumstances to effectuate the purpose of the stop. However, circumstances that develop during a detention may provide reasonable suspicion to prolong the detention. (People v. Warren (1984) 152 Cal.App.3d 991, 995-997; People v. Suennen (1980) 114 Cal.App.3d 192, 200-201 [if additional cause to detain develops after the initial stop, additional time to investigate is allowed].) "There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. [Citations.]" (People v. Russell (2000) 81 Cal.App.4th 96, 102.) "Implicit in the McGaughran analysis is a recognition that the circumstances of each traffic detention are unique and that the reasonableness of each detention period must be judged on its particular circumstances." (Williams v. Superior Court (1985) 168 Cal.App.3d 349, 358.)
In our view, the seven or eight minute period between the time defendant pulled over up to the point he gave consent to search the Frontier was not unreasonably prolonged. Hansen testified that during his initial contact with defendant, he noticed defendant exhibiting symptoms of what he believed was narcotics intoxication. This provided Hansen with additional cause to detain defendant, for the purpose of conducting further observations to determine if defendant was under the influence of narcotics. Since there was additional cause to detain defendant, Hansen was allowed additional time to investigate the traffic violation.
Moreover, defendant's consent to search the Frontier is not vitiated by an unreasonably prolonged detention here. The circumstances here were that defendant was lawfully detained, the detention was not unduly prolonged, and there is no evidence in the record that the situation was in any way coercive.
Accordingly, the trial court did not err when it denied defendant's motion to suppress.
Drug Program Fee
Defendant asserts the trial court erred in imposing the drug program fee in the amount of $150, because there is no evidence that defendant had the ability to pay the fee.
Health and Safety Code section 11372.7, subdivision (a) states in relevant part that "each person who is convicted of a violation of this chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense. The court shall increase the total fine, if necessary, to include this increment, which shall be in addition to any other penalty prescribed by law."
Health and Safety Code section 11372.7, subdivision (b) provides, in relevant part: "The court shall determine whether or not the person who is convicted if a violation of this chapter has the ability to pay a drug program fee."
While there is no requirement that the court make an explicit finding of a defendant's ability to pay the drug program fee (People v. Staley (1992) 10 Cal.App.4th 782, 785), here, there is not substantial evidence to support an implicit finding of ability to pay. The record is entirely silent on defendant's ability to pay the fee, containing no discussion of defendant's employment status, earning potential, debts, et cetera.
Therefore, the court erred in ordering the drug program fee without first determining if defendant had the ability to pay the fee. (Health & Saf. Code, § 11372.7, subd. (b)).
DISPOSITION
The judgment is modified to strike the drug program fee of $150. As modified, the judgment is affirmed.
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RUSHING, P. J.
WE CONCUR:
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Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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