THE PEOPLE v. SAMUEL LYNN COLLINS

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. SAMUEL LYNN COLLINS, Defendant and Appellant.

B212576

Decided: June 30, 2010

Melanie K. Dorian, 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, Assistant Attorney General, Scott A. Taryle, and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

_

Samuel Collins appeals from a judgment of conviction entered after he pled no contest to one count of sale of cocaine base (Health & Saf.Code, § 11352, subd. (a)).  He argues that the trial court erred in denying his motion to suppress evidence, made pursuant to Penal Code section 1538.5,1 because his detention by officers of the Long Beach Police Department violated his rights under the Fourth Amendment to the United States Constitution (Fourth Amendment).   We disagree, and find his detention was constitutional.

Appellant also claims that the trial court's failure to orally pronounce the imposition of fines and fees requires them to be stricken from the abstract of judgment and the minute order.   The fines are stricken, but because the criminal laboratory fee and court security fee are mandatory, we remand to the trial court with directions to amend the judgment and impose the fees.   Appellant argues finally that the trial court erred in calculating his custody credits in light of recent amendments made to section 4019.   We disagree.

In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL SUMMARY

In May 2008, as part of an undercover prostitution investigation, Detective Armand Castellanos of the Long Beach Police Department went to the apartment of Tabrina Charlene Carlson, who had placed an advertisement on the website craigslist.org. Detective Castellanos was wearing a communications wire and carrying recorded government funds.   He negotiated a deal with Carlson where he would pay her and another woman for sex.   After Detective Castellanos gave Carlson $250 of the recorded money, she told him she needed to go out to make a quick transaction with a friend who was “ ‘making a delivery.’ ”   Presumably, once Carlson left and could no longer hear him, Detective Castellanos called into his wire something to the effect of,”[w]atch her ․ [s]he's coming out with the money” or “She's got my money.”

Meanwhile, on the street outside Carlson's apartment building, Detective Jesus Hernandez of the Long Beach Police Department was in a parked car.   He also was undercover, and was acting as an observer and providing officer safety for the investigation.   At a briefing beforehand, Detective Hernandez had seen a photograph of Carlson from the craigslist.org advertisement.   Less than 10 seconds after Detective Castellanos made the comment into his wire “[s]he's coming out with the money,” Detective Hernandez saw a woman exit the apartment building.   She resembled the woman in the photograph, and was later identified as Carlson.   Carlson walked to a car parked in the middle of the street and entered on the passenger side.   Appellant was in the driver's seat.   Detective Hernandez could see that Carlson and appellant were talking, but could not see below their chest level, and did not observe any transaction between them.   Carlson stayed in the car for about a minute, then got out and walked to the driver's side, kissed appellant, and went back inside the apartment building.   Carlson was arrested when she returned to her apartment, and cocaine base was found on her person.

Appellant drove off.   When Carlson left the car to return to the apartment building, but apparently before she was arrested, Detective Hernandez followed appellant and called for a marked police car to detain him.   Detective Hernandez believed Carlson had handed appellant money as part of a drug transaction, or because he was involved in the prostitution.   He formed this suspicion because of Detective Castellanos's comment into the wire that Carlson was carrying money he had given her, and because of the length of time Carlson was in appellant's car.2  Appellant was detained in a traffic stop and searched.   Officers noticed a large amount of cash in appellant's pockets, some of which was identified as the government funds Detective Castellanos had given to Carlson.   Appellant was arrested and eventually taken to a hospital where, after a struggle with police, cocaine base was found secreted on his person.

Appellant was charged by information with felony possession of cocaine base for sale (Health & Saf.Code, § 11351.5), felony sale of cocaine base (Health & Saf.Code, § 11352, subd. (a)), and misdemeanor resisting of a peace officer (§ 148, subd. (a)(1)).   Four prior convictions resulting in prison terms were alleged pursuant to section 667.5, subdivision (b), and one prior conviction for sale of a controlled substance was alleged pursuant to Health and Safety Code section 11370.2, subdivision (a).   Appellant filed a motion to suppress evidence, including the cocaine base found on his person, arguing that the detention and search of him and his vehicle violated his rights under the Fourth Amendment.   Following an evidentiary hearing, the motion was denied.   Appellant was advised of his constitutional rights, pled no contest to felony sale of a controlled substance, and admitted the prior conviction for sale of a controlled substance.   He was sentenced to a base term of three years, and an additional three years for the prior conviction, for a total sentence of six years, less 219 days of custody credit.   Although the minute order and abstract of judgment reflect the imposition of a number of fines and fees, the record does not show the fines and fees were rendered by the trial court.   Appellant appeals from the denial of his suppression motion, and asks that the fines and fees be stricken and the custody credit recalculated.

DISCUSSION

I

Appellant claims the trial court erred in denying his motion to suppress evidence because his detention was unreasonable under the Fourth Amendment, and any evidence subsequently obtained was “fruit[ ] of the poisonous tree.” 3  We defer to the trial court's factual findings, express or implied, where supported by substantial evidence, but exercise our independent judgment in determining the legality of the detention.  (People v. Glaser (1995) 11 Cal.4th 354, 362.)

A police officer may temporarily detain a suspect based on a reasonable suspicion that the suspect has committed or is about to commit a crime, notwithstanding the Fourth Amendment's requirements of probable cause and a search warrant.  (People v. Durazo (2004) 124 Cal.App.4th 728, 734.)   An ordinary traffic stop is treated as an investigatory detention and is justified if based on a reasonable suspicion that the driver has violated the Vehicle Code or some other law.  (Ibid.) The touchstone of reasonableness is the presence of “ ‘ “specific and articulable facts” ’ ” that warrant the intrusion on personal liberty and property.  (Id. at p. 735.)

Appellant argues that because he “was merely observed sitting in his car with a woman assumed to be the target of a prostitution sting, without any movement or exchange taking place,” his detention was based on a hunch or speculation rather than reasonable suspicion.   Viewed in isolation, appellant's conversation with a woman suspected of prostitution in his car may not have given rise to a reasonable suspicion of criminality.   But “[t]he United States Supreme Court ․ has specifically rejected a ‘divide-and-conquer’ analysis in which individual facts are considered in isolation.  (United States v. Arvizu (2002) 534 U.S. 266, 274.)”  (People v. Perrusquia (2007) 150 Cal.App.4th 228, 233.)   While reasonable suspicion cannot be based solely on factors unrelated to appellant, such as criminal activity in the area, we consider the totality of the circumstances in determining whether Detective Hernandez had a “ ‘ “particularized and objective basis” for suspecting legal wrongdoing.’ ”  (Ibid.)

Detective Hernandez knew that Detective Castellanos went to meet with a woman in the apartment building as part of an undercover prostitution investigation.   Detective Castellanos's statement into his wire, “[s]he's coming out with the money” can be inferred to mean that he had made a deal with Carlson to exchange money for sex.   When Carlson left her apartment, purposefully carrying the money, Detective Castellanos remained behind, indicating that the investigation was ongoing and Carlson's departure was connected to the prostitution.4  Detective Hernandez testified that the length of Carlson's stay in appellant's car led him to suspect that a drug transaction could have taken place, or that appellant was involved in prostitution because “most-sometimes, not all the time, the females during prostitution deals come out and they hand off the money to a pimp, and that could have been the case.”   Appellant argues this supposition was unreasonable because Carlson had independently advertised on craigslist.org. But Detective Hernandez was entitled to make an assessment of the situation in light of his experience and training, drawing inferences from and making deductions about the cumulative information that “ ‘might well elude an untrained person.’ ” 5  (United States v. Arvizu, supra, 534 U.S. at p. 273.)

The short duration of Carlson's stay in appellant's car, taken together with Detective Hernandez's knowledge that Carlson was carrying money she had just acquired from Detective Castellanos, gave rise to a reasonable suspicion that appellant was involved in the prostitution, or had received money from Carlson for another illicit purpose.   Appellant's detention was reasonable under the Fourth Amendment, and the trial court did not err in denying his motion to suppress evidence.

II

Appellant asks us to strike fines and fees reflected in the minute order and abstract of judgment because the trial court did not render them when judgment was orally pronounced.

The trial court advised appellant that he would be subject to a $200 fine during the prosecution's reading of appellant's rights prior to the entry of his plea.   But, when pronouncing judgment, the court did not impose a restitution fine or any other fines or fees, and the prosecution did not object.   The minute order from the hearing shows imposition of a $200 restitution fine, a $200 parole restitution fine stayed pending successful completion of parole, a $50 criminal laboratory fee with $85 in penalty assessments, and a $20 court security fee.   The abstract of judgment includes the $200 restitution fine, the $200 parole restitution fine, and the two fees, but does not include the penalty assessments.

Section 1193 provides in pertinent part:  “(a) If the conviction is for a felony, the defendant shall be personally present when judgment is pronounced against him or her․”  Because “ ‘ “[r]endition of judgment is an oral pronouncement” ’ ” and “ ‘[a] judgment includes a fine, ․ ‘ [Citation.] ․ [¶] ․ [¶][t]he clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment․  [T]he clerk's minutes must accurately reflect what occurred at the hearing.”  (People v. Zackery (2007) 147 Cal.App.4th 380, 387.)

As there was no objection by the prosecution, any right to impose the restitution fines is deemed forfeited on appeal.  (People v. Tillman (2000) 22 Cal.4th 300, 303.)   The parties agree that the imposition of the criminal laboratory fee and the court security fee was mandatory and is not deemed forfeited;  they are correct.  (See People v. Turner (2002) 96 Cal.App.4th 1409, 1414-1416 [finding laboratory fee and related assessments mandatory];  People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328 [ordering judgment amended to impose mandatory court security fee].)

III

DISPOSITION

We strike the fees and fines reflected in the abstract of judgment, and remand to the trial court to modify the judgment to impose the laboratory fee, the court security fee, and any related assessments.   The abstract of judgment shall be amended to reflect the judgment so modified.   In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code, unless otherwise indicated..  FN1. All further statutory references are to the Penal Code, unless otherwise indicated.

FN2. Although Detective Hernandez testified that he could “partially” hear the conversation between Carlson and Detective Castellanos through the communications wire, he did not say that he heard Carlson's statement that she was leaving to conduct a “quick transaction.”   For the purposes of this opinion, we assume that he only heard Detective Castellanos's statement into the wire to the effect that Carlson was leaving the apartment and carrying government funds..  FN2. Although Detective Hernandez testified that he could “partially” hear the conversation between Carlson and Detective Castellanos through the communications wire, he did not say that he heard Carlson's statement that she was leaving to conduct a “quick transaction.”   For the purposes of this opinion, we assume that he only heard Detective Castellanos's statement into the wire to the effect that Carlson was leaving the apartment and carrying government funds.

FN3. In his motion, appellant argued that both his detention and the subsequent search were unreasonable under the Fourth Amendment.   He does not renew his claim that the search was unconstitutional, and we do not discuss it..  FN3. In his motion, appellant argued that both his detention and the subsequent search were unreasonable under the Fourth Amendment.   He does not renew his claim that the search was unconstitutional, and we do not discuss it.

FN4. We note that it was reasonable for Detective Hernandez to assume that the woman he saw leaving the building was Carlson.   The woman who emerged 10 seconds after Detective Castellanos's statement resembled the photograph of Carlson that Detective Hernandez saw at the briefing, and no other woman had exited the building..  FN4. We note that it was reasonable for Detective Hernandez to assume that the woman he saw leaving the building was Carlson.   The woman who emerged 10 seconds after Detective Castellanos's statement resembled the photograph of Carlson that Detective Hernandez saw at the briefing, and no other woman had exited the building.

FN5. Appellant claims that Detective Hernandez did not offer testimony showing that he had any specialized training or experience that would provide the basis for his suspicion.   At the preliminary hearing, Detective Hernandez testified that he had been a police officer for eight years, and was currently assigned to the vice investigation detail.   We give due weight to inferences he drew through the lens of his experience.   (Ornelas v. United States (1996) 517 U.S. 690, 699;  People v. Butler (2003) 111 Cal.App.4th 150, 159-160.).  FN5. Appellant claims that Detective Hernandez did not offer testimony showing that he had any specialized training or experience that would provide the basis for his suspicion.   At the preliminary hearing, Detective Hernandez testified that he had been a police officer for eight years, and was currently assigned to the vice investigation detail.   We give due weight to inferences he drew through the lens of his experience.   (Ornelas v. United States (1996) 517 U.S. 690, 699;  People v. Butler (2003) 111 Cal.App.4th 150, 159-160.)

WILLHITE, J. SUZUKAWA, J.