Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA346546, Michael D. Carter, Judge. Affirmed in part and remanded with directions.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Following the denial of his Penal Code section 1538.5 evidence suppression motion, defendant, Ramon Isaias Reyes, pleaded no contest to counts 1 and 2, both drug violations. (Health & Saf. Code, §§ 11351.5, 11379, subd. (a).) Count 3, a charge of cocaine base sale or transportation in violation of Health and Safety Code section 11352, subdivision (a), was dismissed on the prosecution’s motion. Imposition of sentence was suspended as to count 1 and defendant was placed on three years’ formal probation on the condition that he serve 180 days in the county jail. The trial court neglected to either impose or suspend the imposition of sentence as to count 2. Defendant received credit for 85 days in presentence custody plus 42 days of conduct credit for a total presentence custody credit of 127 days. He was ordered to pay: a $20 court security assessment (Pen. Code, § 1465.8, subd. (a)(1)); a $200 restitution fine (Pen. Code, § 1202.4, subd. (b); a $200 probation revocation restitution fine (Pen. Code, § 1202.44); and a single $50 criminal laboratory analysis fee. (Health & Saf. Code, § 11372.5, subd. (a).) In addition, the trial court ordered defendant to pay any probation services costs and attorney fees in an amount to be determined by the financial evaluator.
II. BACKGROUND
Defendant filed a motion to suppress evidence including “the substance resembling narcotics” that was found in the vehicle he was driving. Defendant’s written motion argued: “[T]he officers did not have a warrant to arrest [defendant] therefore, the prosecution now has the burden of establishing justification for the search. [Citation.] Furthermore, the officers had neither reasonable suspicion nor probable cause to stop and detain [defendant] and therefore his detention was illegal. In turn, any evidence recovered as a result of the illegal stop should be suppressed.” The prosecution did not file any written response to the motion.
At the hearing on defendant’s motion, Los Angeles Police Officer Jillian Van Wert testified she was working in an undercover capacity in the area of Heliotrope in Los Angeles on September 16, 2008. She saw a four-door silver Intrepid sedan traveling southbound on Vermont. The Intrepid was driven by defendant. The Intrepid made a right turn westbound on Rosewood and completely stopped in the middle of the street. Defendant turned on his hazard lights. It was approximately 5:30 p.m. in the afternoon. Traffic went around defendant’s stopped car. A man entered the front passenger side of defendant’s car. Officer Van Wert was approximately two cars back. Defendant then turned the hazard lights off, made an immediate right turn onto Heliotrope and pulled to the curb. Officer Van Wert conducted a stop. She testified, “Based on the [minimum speed violation, Vehicle Code section 22400] and based on my training and experience, I observed [the vehicle’s movement] to be consistent with narcotics trafficking.” Officer Van Wert approached defendant’s Intrepid.
Defendant was in the driver’s seat. Officer Van Wert asked defendant and the passenger to step out of the car. She asked defendant whether he had a driver’s license. At first, he gave her a false name and identification. Following further questioning, however, defendant gave his true name. Officer Van Wert verified that defendant did not have a driver’s license; hence, he was in violation of Vehicle Code section 12500, subdivision (a). Officer Van Wert arrested defendant for driving without a license. Officer Van Wert then conducted an inventory search of the Intrepid for impound purposes. In the driver’s side door panel, she found a baggie with approximately 100 off-white, rock-like substances resembling rock cocaine. Officer Van Wert testified: “[T]he driver’s door was open. We looked in the panel of the driver’s side door and observed a baggie with approximately a hundred off-white, rock-like substances resembling rock cocaine.” Officer Van Wert arrested defendant for possession of narcotics for sale.
On cross-examination, Officer Van Wert explained that at the time of defendant’s arrest she was working as part of an operation that had been set up with other narcotics investigators. She was driving an unmarked police car. She was looking for the silver Intrepid or a car with a specified license plate number. She had been directed to look for that particular license plate by someone who had contacted her. A total of five police cars were looking for that particular automobile. They were in radio communication with each other. The silver Intrepid had traveled three miles from Mariposa to Rosewood Avenues. During that time, the officers were looking for narcotics activity. Officer Van Wert testified: “At that point, we’re looking for narcotics activity. If any traffic violations were made, that’s not going to - - we need a little bit further in order to stop him just for the traffic violation. We wanted to see if he was going to do some kind of narcotics activity.” When defendant stopped to pick up a passenger in the middle of the street, then made a right on Heliotrope and pulled immediately to the curb—that conduct was consistent with narcotics trafficking. Officer Van Wert neglected to include in her written report the fact that cars had to go around defendant’s silver Intrepid after it stopped in the middle of the street. Six officers got out with their guns drawn. Had defendant not been arrested, Officer Van Wert would have cited him for the Vehicle Code violation. The officers asked both parties to step out of the vehicle. The purpose was to detain them for a narcotics investigation.
Deputy District Attorney Nick Swertlow argued: “The People believe that this is a pretext stop which is allowable under the U.S. Supreme Court, and everything flows from the Vehicle Code violation. [¶] Additionally, the officer is an experienced narcotic officer and believed that there was narcotics activity and that a narcotics transaction was taking place based on the information she had received about the vehicle and what she had observed.” Deputy Public Defender Priya Bala argued there was no Vehicle Code violation, hence, no reason to stop defendant’s Intrepid. Ms. Bala noted Officer Van Wert had testified to matters that were not included in the police report prepared in connection with defendant’s arrest. For example, in her testimony, Officer Van Wert referred to the precise Vehicle Code provision for which defendant was arrested. She testified other cars had to go around defendant’s car that was temporarily stopped with its hazard lights on—something not mentioned in her police report. Ms. Bala further argued: Officer Van Wert had not asked defendant why he had stopped and put his hazard lights on; therefore, Officer Van Wert did not know and did not establish there was a Vehicle Code violation; defendant might have stopped because his car broke down or he dropped his cellular telephone; and it is not a violation every time somebody stops a vehicle in the middle of the road and puts on the hazard lights. Ms. Bala concluded: “[F]or the prosecution to rest everything, then, upon the fact that they saw a Vehicle Code violation, which actually is not a Vehicle Code violation, then have their guns drawn and order the individuals out of the car with six police officers for a citation seems ludicrous to me. And then to then therefore call it a pretext stop and say that it’s okay, when the officer, under sworn testimony, said that she believed it was an actual Vehicle Code violation, not that it was a pretext stop. So... there is no Vehicle Code violation. There was no basis to stop that car.”
III. DISCUSSION
A. The Evidence Suppression Motion Ruling
Defendant argues: the prosecution failed to present any evidence the search was conducted in accordance with police department inventory search policy; Officer Van Wert’s own testimony established the inventory search was a ruse to rummage for drugs; and the prosecution failed to prove that the scope of the inventory search was proper. None of these issues was raised in the trial court. The Supreme Court has held, “[W]hen defendants move to suppress evidence under section 1538.5, they must inform the prosecution and the court of the specific basis for their motion.” (People v. Williams (1999) 20 Cal.4th 119, 129; see § 1538.5, subd. (a)(2) [“[a section 1538.5 motion] shall set forth the factual basis and the legal authorities that demonstrate why the motion should be granted”].) A defendant is not required to anticipate what justification the prosecution will offer. (Id. at p. 129.) The defendant may, in the first instance, simply assert the absence of a warrant and await the prosecution’s justification before presenting argument as to why the justification is inadequate. (Id. at pp. 129-130.) But either initially or in response to the prosecution’s justification, the defendant must raise any specific argument he or she has other than the lack of a warrant and give the prosecution an opportunity to offer evidence on that point. (Ibid.) Moreover, the failure to object on a specific ground forfeits the issue on appeal. (Id. at pp. 129-131, 136.) Here, defendant never raised any issue with respect to an inventory search in the trial court. He did not at any time argue Officer Van Wert conducted an inventory search as a pretext for gathering evidence, that she failed to follow police department inventory search policy, or that the scope of the inventory search was improper. As a result those arguments have been forfeited. (People v. Williams, supra, 20 Cal.4th at pp. 129-131, 136; accord, People v. Reyes (2009) 172 Cal.App.4th 671, 687; People v. Smith (2002) 95 Cal.App.4th 283, 295-297; People v. Valenzuela (1999) 74 Cal.App.4th 1202, 1206; see generally, e.g., People v. Anderson (2001) 25 Cal.4th 543, 592, fn. 17; People v. Williams (1999) 21 Cal.4th 335, 348; People v. Williams (1997) 16 Cal.4th 153, 250.)
B. The Failure To Impose Or Suspend The Imposition Of Sentence On Count 2
Defendant was charged with three counts and pleaded no contest to two counts. But he was sentenced as to only one count. The felony complaint charged: count 1—sale of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a); court 2—possession for sale of cocaine base in violation of Health and Safety Code section 11351.5; and count 3—sale or transportation or offer to sell cocaine base in violation of Health and Safety Code section 11352, subdivision (a). Defendant pleaded no contest to counts 1 and 2. At sentencing, the trial court stated: “As to count 1, a violation of Health and Safety Code section 11379, sale of a controlled substance, probation is granted in this case based on the RAP sheet that the People have provided. Therefore, imposition of sentence is suspended and a conditional revocable release into the community is granted for a period of three years....” Count 3 was dismissed on the prosecution’s motion. The trial court did not mention count 2. As a result, the trial court must now suspend the imposition of sentence as to count 2 and impose the appropriate probation conditions. (See Pen. Code, § 12; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588-1589; People v. Floyd P. (1988) 198 Cal.App.3d 608, 612 [“When a defendant is convicted of a crime by either plea or verdict, it is the duty of the court to pass sentence and impose the punishment prescribed”].)
C. Criminal Laboratory Analysis Fee
As noted above, the trial court imposed a $50 criminal laboratory analysis fee. (Health & Saf. Code, § 11372.5, subd. (a).) The criminal laboratory analysis fee is a fine (People v. Martinez (1998) 65 Cal.App.4th 1511, 1522; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332) which is subject to additional assessments, a surcharge and penalties. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153; People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528.) This court may correct the omission even though the issue is raised for the first time on appeal. (People v. Talibdeen, supra, 27 Cal.4th at p. 1157; People v. Stone (1999) 75 Cal.App.4th 707, 717-718; People v. Terrell (1999) 69 Cal.App.4th 1246, 1256-1257.) The $50 criminal laboratory analysis fee is subject to: a $50 penalty assessment under Penal Code section 1464, subdivision (a)(1); a $35 penalty assessment pursuant to Government Code section 76000, subdivision (a)(1); a $10 Government Code section 76000.5, subdivision (a)(1) penalty assessment; a $10 state surcharge under Penal Code section 1465.7, subdivision (a); a $15 Government Code section 70372, subdivision (a)(1) state court construction penalty (the amount payable in Los Angeles County); a $5 deoxyribonucleic acid penalty pursuant to Government Code section 76104.6, subdivision (a)(1); a $5 deoxyribonucleic acid state-only penalty under Government Code section 76104.7, subdivision (a); and a $30 Government Code section 70373, subdivision (a)(1), court facilities assessment. (People v. Castellanos, supra, 175 Cal.App.4th at p. 1528.) The criminal laboratory analysis fee is mandatory and has no ability to pay requirement. (Health & Saf. Code, § 11372.5; People v. Turner (2002) 96 Cal.App.4th 1409, 1413.) Thus, upon remittitur issuance, the judgment must include the additional sums set forth above.
Also, Health and Safety Code section 11372.5, subdivision (a) requires a $50 fee be imposed for each separate offense. Only one Health and Safety Code section 11372.5, subdivision (a) fee was imposed. Upon remittitur issuance, an additional $50 Health and Safety Code section 11372.5, subdivision (a) fee is to be imposed on each count plus the assessments, surcharge, and fees discussed in the immediately preceding paragraph.
D. Court Security Fee
The trial court imposed one $20 court security fee pursuant to section 1465.8, subdivision (a)(1). But defendant was subject to the $20 court security fee for each of the two counts, for a total of $40. (See People v. Walz (2008) 160 Cal.App.4th 1364, 1372-1373; People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) Upon remittitur issuance, the trial court is to impose the section 1465.8, subdivision (a)(1) court security fee on all counts.
IV. DISPOSITION
This matter is remanded with directions as discussed in parts III(B) through (D) of this opinion. The judgment is affirmed in all other respects.
I concur: ARMSTRONG, J.
MOSK, J., Concurring
I concur.
Defendant moved to suppress the evidence pursuant to Penal Code section 1538.5. Defendant asserted that the search and seizure was made without a warrant, and thus the burden was on the prosecution to show proper justification for the search and seizure.
At the hearing that took place in 2008, defendant asserted that the stop of the vehicle was pretextual and that there was no Vehicle Code violation. The trial court said, “the court’s view of the evidence is that there was a Vehicle Code violation. The officers lawfully stopped the car, inquired with the defendant. The defendant did not have a driver’s license, and the defendant was then arrested for operating the motor vehicle without a valid driver’s license, and the search was then pursuant to the impound of the car. And those are the facts that the court is relying on in denying the motion for 1538.5.”
At that time, defendant had no basis for challenging a search incident to an arrest because Arizona v. Gant (2009) ___ U.S. ____ [129 S.Ct. 1710] had not been decided. The attorney general does not argue that the search complied with Arizona v. Gant. Arizona v. Gant does suggest a change in the law. The dissenting justices asserted that the court overruled New York v. Belton (1981) 453 U.S. 454 (Arizona v. Gant, supra, ___ U.S. at p. __ [129 S.Ct. at p. 1726 (Justice Alito dissenting)].) The majority said that Belton “has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility that the arrestee could gain access to the vehicle at the time of the search.” (Id. at p. __ [129 S.Ct. at p. 1718].) Arizona v. Gant does apply retroactively. (See United States v. Gonzalez (2009) 578 F.3d 1130; People v. Leal 178 Cal.App.4th 1051.)
Arizona v. Gant, supra, ___ U.S. ____ [129 S.Ct. 1710] did not consider whether its rule applied to an inventory search or whether evidence illegally obtained under a purported arrest may nevertheless be admissible pursuant to the inevitable discovery during a valid inventory search. The inventory doctrine (South Dakota v. Opperman (1976) 428 U.S. 364) probably is unaffected by Arizona v. Gant. (See United States v. Morillo (E.D.N.Y., Oct. 9, 2009, No. 08 CR 676(NGG) 2009 WL 3254431; U.S. v. Nanquilada (W.D. Wash., Jan. 13, 2009, No. CR08-323Z) 2009 WL 90124.) If the search was an inventory search and such a search is not governed by Arizona v. Gant, the issue would be whether it was conducted pursuant to police procedures. (United States v. Marshall (8th Cir. 1993) 986 F.2d 1171; see U.S. v. Sullivan (D.S.D., July 13, 2009, No. CR 09-40043) 2009 WL 2045978.)
Even though there is no testimony that the automobile legally could be impounded, the trial court said the search was pursuant to an impound. The officer just said she did an inventory search pursuant to an impound, but never gave any facts justifying an impound. The officer said the detention was for a narcotics investigation.
Impoundment without probable cause is lawful only conducted “on the basis of something other than suspicion of evidence of criminal activity.” (Colorado v. Bertine (1987) 479 U.S. 367, 375.) Inventory searches of impounded vehicles are exempt from the warrant and probable cause requirements so long as they are not to further a criminal investigation, but “to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen or vandalized property, and to guard the police from danger.” (Id. at p. 372.)
Defendant did not specifically challenge the supposed impoundment and inventory search, but focused on the detention of the automobile. The inventory search issue is a separate constitutional issue from the detention issue. The rule is that defendants cannot assert federal constitutional errors for the first time on appeal. (People v. Smithey (1999) 20 Cal.4th 936, 995.) The defendant must specify the particular ground as to why a warrantless search and seizure was unreasonable. (People v. Williams (1999) 20 Cal.4th 119, 130.) The grounds asserted by defendant on appeal governing the inventory search were not raised before the trial court and are therefore forfeited.