THE PEOPLE v. KURT ANTHONY HASTEN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. KURT ANTHONY HASTEN, Defendant and Appellant.

2d Crim. No. B217465

Decided: June 22, 2010

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Kurt Anthony Hasten appeals from the judgment entered following his plea of nolo contendere to possession for sale of methylendioxymethamphetamine (MDMA), commonly known as ecstasy.  (Health & Saf.Code, § 11378.)   The trial court suspended the imposition of sentence and placed appellant on probation.   One of the conditions of probation was that he serve 180 days in county jail.

Appellant entered his plea after the trial court had denied his motion to set aside the information pursuant to Penal Code section 995.   In the section 995 motion, appellant argued that the magistrate at the preliminary hearing had erroneously denied his Penal Code section 1538.5 motion to suppress evidence.   The evidence had been seized during a search of appellant following a traffic stop.   Appellant contends that the trial court erroneously denied the section 995 motion.   We conclude that the magistrate at the preliminary hearing reached the correct result for the wrong reason.   Accordingly, we affirm.

Suppression Motion Evidence

While driving a Hyundai Sonata, appellant failed to stop at a stop sign.   Deputy Paul Fernandez turned on the red lights of his marked patrol car to effect a traffic stop.   Appellant, who was the sole occupant of the Sonata, “immediately pulled over to the right and exited his vehicle.”   Fernandez stepped out of his patrol car and “called [appellant] back” to the patrol car.   When appellant came to the patrol car, Fernandez said, “Stop there, put your hands behind your back.”   Appellant complied with Fernandez's order.   Fernandez intended to pat down appellant for safety purposes.   When asked on cross-examination why he was concerned for his safety, Fernandez responded:  “Because he immediately exited his vehicle, which is common for people to do when there's something going on.   I'm going to go home at night;  so I search everybody.”   Fernandez later testified, “If they exit the vehicle, I make sure I'm safe.”

Fernandez “asked [appellant] if he had anything illegal on him.”   Appellant said “no, he did not.”   Fernandez then asked appellant if he could “conduct a search of his person.”   Appellant gave his consent.

Fernandez “conducted a pat-down search of [appellant's] clothing and felt what [he] believed was a plastic bag in [appellant's] right front pocket.”   Fernandez asked appellant what was in the bag.   Appellant replied that the bag contained his friend's pills.   Fernandez asked “what kind of pills they were.”   Appellant replied that they were ecstasy pills and that “he was delivering them for a friend.”   Appellant said that he was going to be paid $20 for the delivery.   Fernandez removed the plastic bag from appellant's pocket and found that it contained 18 pills.

After appellant was arrested, Fernandez “ran” him on the patrol car's mobile data transmitter (MDT).  The information received via the MDT was that appellant did not have a driver's license.

Magistrate's Inevitable Discovery Ruling

The magistrate did not expressly consider the legality of the search of appellant's pocket.   The magistrate ruled that, irrespective of the legality of the search, the exclusionary rule was inapplicable because the ecstasy pills would inevitably have been discovered during a search incident to appellant's custodial arrest for driving without a valid license.   The magistrate stated:  “It doesn't matter about the baggie because [Fernandez] would have gotten to the license issue, and [appellant] would have been arrested for no license and searched․  So we're playing trivial games here over nothing.”  “Let's just assume for argument sake the deputy hadn't gone into the pocket and taken the plastic bag out or asked about it.  [Fernandez] was able to arrest [appellant] based on the no license, which means there was a book and search right then ․ incident to arrest.   It's inevitable discovery․  [The ecstasy pills are] going to get found anyway based on custodial arrest for no license;  so the motion to suppress is ․ denied.”

995 Motion Denied on Consentt Theory

In the trial court, appellant made a Penal Code section 995 motion to set aside the information on the ground that the magistrate had erroneously denied his Penal Code section 1538.5 motion to suppress evidence.   The trial court denied the section 995 motion because appellant had expressly consented to a search of his person.

Inevitable Discovery Erroneous/Consent Valid

Appellant does not challenge the legality of the traffic stop.   He challenges the legality of the search of his pocket and the magistrate's application of the inevitable discovery doctrine.  “[I]n an inevitable discovery case, ․ the illegality of the police conduct which led to the actual seizure is assumed.”   (Green v. Superior Court (1985) 40 Cal.3d 126, 137.)  “Evidence need not be suppressed if the prosecution can establish by a preponderance of the evidence that the information would inevitably have been discovered by lawful means.   [Citations.]  As this is essentially a question of fact, we must uphold the [magistrate's] determination if supported by substantial evidence.   [Citations.]”  (People v. Carpenter (1999) 21 Cal.4th 1016, 1040.)

Substantial evidence does not support the magistrate's determination that the ecstasy pills would inevitably have been discovered during a search incident to appellant's “custodial” arrest for the misdemeanor offense of driving without a valid license.  (Veh.Code, §§ 12500, 40000.11, subd. (b).) 1  The vast majority of nonfelony arrests for Vehicle Code violations are not custodial.   The officer prepares a written notice to appear in court, and the arrestee is released upon signing a written promise to appear.  (See § 40500;  People v. McKay (2002) 27 Cal.4th 601, 619-620.)

“This species of arrest does not inevitably result in physical custody and its concomitant, a search.  [Citations.]”  (People v. Monroe (1993) 12 Cal.App.4th 1174, 1181-1182.)

The Vehicle Code contemplates that the cite-and-release procedure will be followed when a person is arrested for driving without a valid license in violation of section 12500.   Section 22651, subdivision (p), provides that a peace officer may remove a vehicle “[w]hen the peace officer issues the driver of [the] vehicle a notice to appear for a violation of Section 12500․”  “The obvious purpose of subdivision (p) of section 22651 is to prevent the offender who is cited on a public street for driving without a valid license from reoffending when the officer has completed the citation process and departed.”  (People v. Auer (1991) 1 Cal.App.4th 1664, 1669.)

“[S]ection 40303 leaves it completely to ‘the judgment of the arresting officer’ whether to employ the cite-and-release procedure or to effect a custodial arrest for the offenses listed in subdivisions (a) through (q) [now subdivision (b) ].” (People v. McKay, supra, 27 Cal.4th at p. 622.)   The offenses listed in section 40303 do not include driving without a valid license in violation of section 12500.   Therefore, when an officer arrests a driver for violating section 12500, “the officer must follow the cite-and-release procedure, unless the offender fails to present a driver's license or other satisfactory evidence of identity for examination, refuses to give a written promise to appear in court, or demands an immediate appearance before a magistrate in which case the officer must take the offender to the magistrate.  [Citations.]”  (People v. McKay, supra, 27 Cal.4th at p. 620;  see also § 40302.2 )

The record contains no evidence showing that appellant fell within one of the exceptions to the cite-and-release procedure.   Although appellant did not have a valid license, he may have been able to produce “other satisfactory evidence of his identity for examination.” (§ 40302, subd. (a).)  Fernandez was never asked whether appellant possessed reliable documentary evidence of identification.3  Even if appellant had not possessed such documentary evidence, Deputy Fernandez would still have had discretion “to accept or reject other evidence-including oral evidence-of identification.”  (People v. McKay, supra, 27 Cal.4th at p. 622.)  “It would be absurd to require an officer to effect a custodial arrest of an offender who is able to convince the officer, by any means, of his or her identity and willingness to appear in answer to the citation.”  (Ibid.) Thus, if Fernandez had not searched appellant's pocket and found the ecstasy pills, he may have cited and released appellant for driving without a valid driver's license.

The magistrate therefore erroneously relied on the inevitable discovery doctrine in denying appellant's motion to suppress.   But we are not bound by the magistrate's reasons for its ruling.  “ ‘ “No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in laws, will not be disturbed on appeal merely because given for the wrong reason.   If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.  “ ‘ ․ [¶] That principle does not apply, however, when the ‘new theory was not supported by the record made at the first hearing and would have necessitated the taking of considerably more evidence, [or when] the defendant had no notice of the new theory and thus no opportunity to present evidence in opposition.’  [Citations.]”  (People v. Brown (2004) 33 Cal.4th 892, 901.)

The People contend, and the 995 judge ruled, that the search of appellant's pocket was lawful because he consented to the search.   The People advanced this theory at the preliminary hearing, and appellant argued against the theory.   Accordingly, the consent theory may be raised on appeal.

“A recognized exception to the Fourth Amendment's proscription against warrantless searches is a search that is based upon consent.  [Citation.]”  (People v. Superior Court (Walker ) (2006) 143 Cal.App.4th 1183, 1198.)   “Consent, to be valid, must be free and voluntary.  [Citation.]”  (People v. Hyde (1974) 12 Cal.3d 158, 162, fn. 2.) Appellant does not contend, and nothing in the record suggests, that his consent was involuntary.   There were no circumstances of coercion.4

Appellant appears to argue that his consent was invalid because Fernandez “had no lawful reason to search him.”   Appellant asserts that a pat-down search was unwarranted because Fernandez “had no specific and articulable facts giving rise to a reasonable suspicion that appellant was armed and dangerous.”   (Underscoring and capitalization omitted.)   We recognize that, “[i]n the context of an ordinary traffic stop, an officer may not pat down a driver and passengers absent a reasonable suspicion they may be armed and dangerous.   [Citation.]”  (People v. Collier (2008) 166 Cal.App.4th 1374, 1377.)   But we need not consider whether Fernandez had such a reasonable suspicion, since it was not a prerequisite to Fernandez's request to search appellant's person.   During a traffic stop, a peace officer is permitted to ask for consent to search “as long as the detention is not unreasonably prolonged as a result of the request to search.”  (People v. Gallardo (2005) 130 Cal.App.4th 234, 238.)   There is no evidence that Fernandez's request to search appellant unduly prolonged the traffic stop.

Appellant argues that his consent to search was “tainted by Fernandez's unconstitutional personal protocol of searching ‘everybody.’  “ Appellant is referring to Fernandez's testimony that, for safety purposes, he searched [perhaps he meant “patted down”] everybody who immediately exited his or her vehicle upon being stopped for a traffic violation.   Fernandez's testimony concerned his motivation for requesting consent to search appellant.   In Whren v. United States (1996) 517 U.S. 806, 813 [116 S.Ct. 1769, 135 L.Ed.2d 89], the United States Supreme Court rejected “any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.”   The court concluded, “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”  (Ibid.) In People v. Bradford (1997) 15 Cal.4th 1229, 1306, fn. 11, our Supreme Court noted that “the [United States] Supreme Court has commented that subjective intent by itself, ‘ “does not make otherwise lawful conduct illegal or unconstitutional.”  ‘ “ (Quoting from Whren v. United States, supra, 517 U.S. at p. 813.)   Here, Deputy Fernandez lawfully requested consent to search appellant.   His motivation for requesting consent is irrelevant.

Disposition

NOT TO BE PUBLISHED.

We concur:

Charles A. Chung, Judge

Richard Naranjo, JudgeSuperior Court County of Los Angeles

Jennifer Hansen, 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, Susan D. Martynec, Supervising Deputy Attorney General, Lance E. Winters, Deputy Attorney General, for Plaintiff and Respondent.

FOOTNOTES

FN1. All further statutory references are to the Vehicle Code..  FN1. All further statutory references are to the Vehicle Code.

FN2. Section 40302 provides:  “Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made in any of the following cases:  [¶] (a) When the person arrested fails to present his driver's license or other satisfactory evidence of his identity for examination. [¶] (b) When the person arrested refuses to give his written promise to appear in court. [¶] (c) When the person arrested demands an immediate appearance before a magistrate. [¶] (d) When the person arrested is charged with violating Section 23152.”.  FN2. Section 40302 provides:  “Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made in any of the following cases:  [¶] (a) When the person arrested fails to present his driver's license or other satisfactory evidence of his identity for examination. [¶] (b) When the person arrested refuses to give his written promise to appear in court. [¶] (c) When the person arrested demands an immediate appearance before a magistrate. [¶] (d) When the person arrested is charged with violating Section 23152.”

FN3. “[A]t least one category of identification qualifies as ‘other satisfactory evidenceof ․ identity'-those forms of documentary evidence that are the functional equivalent of a driver's license.   This would include a state-issued identification card (§ 13005) and other current, reliable documentary evidence of identity that, like a driver's license, bears the person's photograph, physical description, current mailing address, and signature, and is serially or otherwise numbered.  [Citation.]”  (People v. McKay, supra, 27 Cal.4th at pp. 620-621.).  FN3. “[A]t least one category of identification qualifies as ‘other satisfactory evidenceof ․ identity'-those forms of documentary evidence that are the functional equivalent of a driver's license.   This would include a state-issued identification card (§ 13005) and other current, reliable documentary evidence of identity that, like a driver's license, bears the person's photograph, physical description, current mailing address, and signature, and is serially or otherwise numbered.  [Citation.]”  (People v. McKay, supra, 27 Cal.4th at pp. 620-621.)

FN4. For the first time in his reply brief, appellant contends that Fernandez's testimony regarding the consent to search “was internally inconsistent and not credible.”The contention is forfeited because appellant failed to raise it in his opening brief.(People v. Zamudio (2008) 43 Cal.4th 327, 353-354.)   In any event, the magistrate impliedly found that Fernandez was a credible witness, and we are bound by this implied finding.  “As the finder of fact in a proceeding to suppress evidence (Pen.Code, § 1538.5), the [magistrate] is vested with the power to judge the credibility of the witnesses․”  (People v. Woods (1999) 21 Cal.4th 668, 673.).  FN4. For the first time in his reply brief, appellant contends that Fernandez's testimony regarding the consent to search “was internally inconsistent and not credible.”The contention is forfeited because appellant failed to raise it in his opening brief.(People v. Zamudio (2008) 43 Cal.4th 327, 353-354.)   In any event, the magistrate impliedly found that Fernandez was a credible witness, and we are bound by this implied finding.  “As the finder of fact in a proceeding to suppress evidence (Pen.Code, § 1538.5), the [magistrate] is vested with the power to judge the credibility of the witnesses․”  (People v. Woods (1999) 21 Cal.4th 668, 673.)

COFFEE, J. PERREN, J.