Filed 8/19/14 P. v. Wesley CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C073912
Plaintiff and Respondent, (Super. Ct. No. SF118744A,
SF122830A)
v.
FREDRICK WESLEY,
Defendant and Appellant.
In November 2012, in case No. SF118744A (narcotics case), the trial court heard
and denied defendant Fredrick Wesley’s motion to suppress evidence. In January 2013,
he pled no contest to possession of cocaine base for sale. In exchange, a related count
and enhancing allegations were dismissed.
In March 2013, in case No. SF122830A (firearm case), the trial court heard and
denied defendant’s motion to substitute counsel. (People v. Marsden (1970) 2 Cal.3d
118.) In May 2013, defendant pled no contest to possession of a firearm by a convicted
felon. In exchange, three related counts and enhancing allegations were dismissed.
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Defendant was sentenced to prison for concurrent terms of four years in the
narcotics case and two years in the firearm case. He obtained a certificate of probable
cause.
On appeal, defendant contends: (1) his suppression motion should have been
granted because the officers detained him unreasonably before he admitted that he was on
parole subject to a search condition; and (2) his Marsden motion should have been
granted because he showed that his right to counsel was substantially impaired. We
affirm.
FACTS
Narcotics Case
On October 22, 2011, about 7:00 p.m., Stockton Police Officer Jeffrey Pope
contacted defendant near the intersection of Hunter and Church Streets. Defendant was
found to be in possession of about 11 grams of rock cocaine.
Firearm Case
On January 23, 2013, around 11:20 a.m., defendant was contacted in the area of
Sonora and Hunter Streets in Stockton and was found to be in possession of a .40-caliber
Smith & Wesson handgun. Defendant was prohibited from possessing a firearm as a
result of his 2009 conviction of possession for sale of cocaine.
DISCUSSION
I
Defendant’s Motion To Suppress Evidence
Defendant contends the trial court erred in upholding the warrantless detention and
search that yielded the rock cocaine. He claims Officer Pope and his partner, Stockton
Police Officer Frank McCutcheon, detained him unreasonably before he admitted to the
officers that he was on parole subject to a search condition. In defendant’s view, it was
arbitrary, capricious, and harassing for the officers to focus their suspicions upon him
simply because, unlike other people in this high-crime area, defendant was “ ‘clean’ ” and
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appeared to have “ ‘showered.’ ” Defendant further contends that “blading” him in
public, then putting him face down in the street to look into his pants and to his buttocks
was arbitrary, capricious, and harassing. As a result, the trial court should have
suppressed the narcotics found in the search. We are not persuaded.
Defendant’s suppression motion initially was heard simultaneously with the
preliminary examination. Officer Pope was the only witness. He testified as follows:
On October 22, 2011, at 7:00 p.m., Officers Pope and McCutcheon were on patrol
in a marked police car as part of the “Gang Street Enforcement Team.” They were
patrolling an area of Stockton known for its “high level of narcotics trafficking and
activity.” The officers were familiar with the area because each had five years’
experience with narcotics cases.
As the officers turned onto Hunter Street, Officer Pope noticed two people
walking by who first looked up at the police car and then looked down quickly. The
officers made a U-turn and headed back to the area, planning to speak to the people. As
they approached, the officers saw two other people “squatting next to a building on the
west side of the street.” One of those people, later identified as defendant, did not seem
to fit in because he was wearing clean clothes and appeared to have showered recently,
whereas most people on that block were transients with dirty clothes and an unwashed
appearance. When the police car approached, defendant and his companion stood up and
began walking away, which further raised Officer Pope’s suspicions.
The officers contacted the first two people they had seen and spoke with them for
less than a minute before realizing they “weren’t really up to anything.” The officers
circled the block and located defendant and his companion at Hunter and Sonora Streets.
Because it was getting dark, Officer Pope, who was in the front passenger seat, turned his
spotlight toward the area where the men were standing and asked “[w]hat’s going on” in
a conversational tone of voice. The officers did not activate the patrol car’s emergency
lights, siren, or public address system. One of the men replied, “Nothing. We’re just
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walking.” From the patrol car in the middle of the street, Officer Pope then asked the
men if they were on probation or parole. Defendant did not reply, and the other man said
he was not. Officer Pope looked at defendant and asked again if he was on probation.
Defendant replied, “No, I’m on parole.” Based on this response, Officer Pope got out of
the car and approached defendant.
Defendant told Officer Pope that he was on parole for “possession.” Officer Pope
initiated a “parole compliance search” by having defendant clasp his hands behind his
head. Officer Pope placed one hand on defendant’s clasped hands and used his other
hand to conduct a patsearch for weapons and searched defendant’s pockets. Officer Pope
found no weapons but noticed that defendant was standing with his legs and feet close
together. After repeated requests by Officer Pope, defendant gradually spread his legs far
enough apart so that Officer Pope could search defendant’s lower body by running the
“blade” of his hand up defendant’s legs toward his buttocks. Officer Pope explained that
often people conceal contraband “between their butt cheeks” to prevent officers from
finding it. As Officer Pope “bladed” defendant’s buttocks, he felt a “foreign object or
foreign substance” in the area, which prompted him to handcuff defendant.
Officer Pope placed defendant in the patrol car and told him he would be taken to
the police department for a strip search. Defendant placed both of his handcuffed hands
down the back of his pants. The officers got into the backseat and tried to pull
defendant’s hands out of his pants.
Officer McCutcheon radioed for a backup unit. When that unit arrived, defendant
was removed from the patrol car and placed face down in the street while the backseat
was searched for narcotics. Officer Pope looked down the back of defendant’s pants to
see if anything was there. No object was found in either location. Defendant was
returned to the patrol car and taken to the police department.
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At the police station, defendant’s pants and underwear were removed and he was
told to bend forward. When he did so, a clear plastic baggie fell to the floor. The baggie
contained six smaller baggies that held an aggregate 11.77 grams of rock cocaine.
On cross-examination, Officer Pope acknowledged that he did not confirm
defendant’s statement that he was on parole until after he was arrested. But the officer
said he never had anyone claim to be on parole when he or she were not. Officer Pope
explained that he did not shine his spotlight directly on defendant and that he usually
aims it “just either at the ground in front of them or in the area so [he] can see what’s
going on a little bit better. More for officer safety than anything else.”
In denying the motion to suppress, the magistrate stated that United States
Supreme Court cases allow police officers to conduct searches in cases, such as this, in
which a consensual encounter yields information that the person is on probation or
parole.
Defendant renewed his suppression motion in the trial court pursuant to Penal
Code section 1538.5, subdivision (i). The trial court reviewed the transcript of the
preliminary examination and the parties’ moving papers before hearing arguments on the
motion on November 20, 2012. After reviewing the evidence from the transcript, the trial
court ruled as follows:
“The evidence supports the conclusion made by the magistrate that the defendant,
prior to stating that he was on parole[, was] free to disregard the officers’ questions and
walk away. The officers did not display or use weapons or make any show of force until
the defendant admitted being on parole. The officers did not exit their vehicle or touch or
restrain the defendant. The officers did not block the defendant’s path or chase after him.
They did not walk briskly toward him. The officers did shine a vehicle spotlight in the
defendant’s vicinity due to oncoming darkness, but did not yell at him or command him
to do anything. [¶] There is no indication that the officers spoke to the defendant in a
forceful or hostile manner. [Moreover], immediately preceding the encounter with the
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defendant, the officers had contact with other people on the same block and drove away
after a brief communication. [¶] Approaching the defendant in a public place and asking
him questions were not actions constituting coercive police conduct that would lead a
reasonable person to believe that he or she was not free to leave.”
The trial court found that the search was conducted for the proper purpose of
parole supervision. The court rejected defendant’s contentions, not renewed on appeal,
that there was insufficient evidence of his parole status and that the search violated Penal
Code section 3040.
“A defendant may move to suppress evidence on the ground that ‘[t]he search or
seizure without a warrant was unreasonable.’ [Citation.] A warrantless search is
presumed to be unreasonable, and the prosecution bears the burden of demonstrating a
legal justification for the search. [Citation.] ‘The standard of appellate review of a trial
court’s ruling on a motion to suppress is well established. We defer to the trial court’s
factual findings, express or implied, where supported by substantial evidence. In
determining whether, on the facts so found, the search or seizure was reasonable under
the Fourth Amendment, we exercise our independent judgment.’ ” (People v. Redd
(2010) 48 Cal.4th 691, 719.)
“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 or comparable
restraints on an individual’s liberty. [Citations.] Our present inquiry concerns the
distinction between consensual encounters and detentions. 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.” (In re
Manuel G. (1997) 16 Cal.4th 805, 821.)
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“The United States Supreme Court has made it clear that a detention does not
occur when a police officer merely approaches an individual on the street and asks a few
questions. [Citation.] As long as a reasonable person would feel free to disregard the
police and go about his or her business, the encounter is consensual and no reasonable
suspicion is required on the part of the officer. Only when the officer, by means of
physical force or show of authority, in some manner restrains the individual’s liberty,
does a seizure occur. [Citations.] ‘[I]n order to determine whether a particular encounter
constitutes a seizure, a court must consider all the circumstances surrounding the
encounter to determine whether the police conduct would have communicated to a
reasonable person that the person was not free to decline the officers’ requests or
otherwise terminate the encounter.’ [Citation.] This test assesses the coercive effect of
police conduct as a whole, rather than emphasizing particular details of that conduct in
isolation. [Citation.] Circumstances establishing a seizure might include any of the
following: the presence of several officers, an officer’s display of a weapon, some
physical touching of the person, or the use of language or of a tone of voice indicating
that compliance with the officer’s request might be compelled. [Citations.] The officer’s
uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant
in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.” (In
re Manuel G., supra, 16 Cal.4th at p. 821.)
On the facts presented at the preliminary examination and accepted by the trial
court, the court correctly concluded that defendant’s encounter with the officers was
consensual until he acknowledged that he was on parole. It is undisputed that the officers
had not used any “physical force,” and the evidence does not show a sufficient “show of
authority.” (In re Manuel G., supra, 16 Cal.4th at p. 821.)
Defendant relies primarily upon People v. Garry (2007) 156 Cal.App.4th 1100
(Garry), in which the relevant show of authority consisted of the officer turning on the
patrol car’s spotlight that “illuminated [the] defendant;” the officer exiting the car, which
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was “ ‘probably’ ” about 35 feet away from the defendant; the officer walking
“ ‘briskly’ ” toward the defendant and closing the gap in “ ‘two and a half, three
seconds’ ”; and the officer expressing his desire to “confirm” defendant’s claim that he
lived at a nearby house. (Id. at p. 1104.) Garry held the officer’s “testimony makes clear
that his actions, taken as a whole, would be very intimidating to any reasonable person.
[The officer] testified that after only five to eight seconds of observing [the] defendant
from his marked police vehicle, [the officer] bathed [the] defendant in light, exited his
police vehicle, and, armed and in uniform, ‘briskly’ walked 35 feet in ‘two and a half,
three seconds’ directly to him while questioning him about his legal status. Furthermore,
[the officer] immediately questioned [the] defendant about his probation and parole
status, disregarding [the] defendant’s indication that he was merely standing outside his
home. In other words, rather than engage in a conversation, [the officer] immediately
and pointedly inquired about [the] defendant’s legal status as he quickly approached. We
think only one conclusion is possible from this undisputed evidence: that [the officer’s]
actions constituted a show of authority so intimidating as to communicate to any
reasonable person that he or she was ‘ “not free to decline [his] requests or otherwise
terminate the encounter.” ’ ” (Id. at pp. 1111-1112, fn. omitted.)
Here, in contrast, there was no evidence that defendant was “bathed . . . in light.”
(Garry, supra, 156 Cal.App.4th at p. 1111.) Officer Pope did not shine his spotlight
directly on defendant; per Officer Pope’s custom, he would have aimed it at the ground in
front of defendant “so [Officer Pope] can see what’s going on a little bit better. More for
officer safety than anything else.” Nor did Officer Pope approach defendant on foot,
briskly or otherwise; rather, he remained seated in the patrol car. Officer Pope began
questioning defendant in a conversational tone before asking him about his probation and
parole status. And nothing in the record suggests that Officer Pope disregarded the
assertion by one of the men that they were “just walking.”
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Garry distinguished People v. Franklin (1987) 192 Cal.App.3d 935, 938-940
(Franklin), in which a police officer spotted the defendant, Franklin, walking down the
street in a seedy neighborhood at midnight wearing a coat that seemed too warm for the
weather conditions. When the officer put his patrol car’s spotlight on Franklin, Franklin
tried to hide a white bundle he was carrying. The officer stopped his car directly behind
Franklin and began to use his radio, and Franklin approached the car. The officer got out
and met him in the area of the headlights. Without the officer’s initiating any
conversation, Franklin repeatedly asked, “ ‘What’s going on?’ ” Rejecting Franklin’s
claim that he had been detained as a result of these actions, the appellate court observed
that “the officer did not block appellant’s way; he directed no verbal requests or
commands to appellant. Further, the officer did not alight immediately from his car and
pursue appellant. Coupling the spotlight with the officer’s parking the patrol car,
appellant rightly might feel himself the object of official scrutiny. However, such
directed scrutiny does not amount to a detention.” (Id. at p. 940.)
Franklin suggests that Officer McCutcheon’s parking of the patrol car and Officer
Pope’s shining of the spotlight do not by themselves elevate the encounter to a detention.
Neither does Officer Pope’s mere act of asking a few questions so elevate the encounter.
(See In re Manuel G., supra, 16 Cal.4th at p. 821.) Defendant’s argument that a
reasonable person would not “feel free to continue to ignore the officers and simply walk
away” after being questioned must be directed to a court higher than this one. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Where an encounter is consensual, no reasonable suspicion is required on the part
of the officer. (In re Manuel G., supra, 16 Cal.4th at p. 821.) Thus, the officers were
entitled to commence their consensual encounter with defendant simply because, unlike
most people in the area, he appeared to be “clean” and “showered.”
After defendant admitted his parole status, Officer Pope was entitled to search him
without a particularized suspicion. (People v. Smith (2009) 172 Cal.App.4th 1354, 1361.)
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Officer Pope testified that he did so in order to determine defendant’s compliance with
the provisions of his parole. Thus, the parole search was not arbitrary, capricious, or
harassing, regardless of whether the preceding encounter had been supported by nothing
more than the observations that defendant was “clean” and “showered.”
Defendant counters that the parole search was arbitrary, capricious, and harassing
because the officers did not verify his admission that he was on parole. The argument is
not accompanied by citation of authority or argument as to why defendant’s admission
should not suffice to support the search. No further discussion is required. (People v.
Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4.)
Defendant argues that “blading” him in public, then putting him face down in a
street in order to examine his pants and buttocks was arbitrary, capricious, and harassing.
But the “blading” had been preceded by Officer Pope’s observation that defendant was
standing with his legs and feet close together. The placement in the street and the
examination of the pants and buttocks had been preceded by the officers’ observation of
defendant’s furtive movement in the patrol car, placing his handcuffed hands down the
back of his pants. The officers could reasonably suspect that defendant had concealed
some sort of weapon or other contraband and was trying to access it. Examining the
apparent point of concealment was related to officer safety and was not arbitrary,
capricious, or harassing.
In any event, neither the “blading” nor the examination of the back of defendant’s
pants involved the removal of defendant’s clothing in public. Defendant was strip
searched at the jail, at which time drugs were discovered between his butt cheeks.
In light of our conclusions, it is not necessary to consider the People’s argument
that defendant’s revelation of his parole status attenuated the taint of any illegality in
connection with the initial detention. Defendant’s suppression motion was properly
denied.
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II
Defendant’s Marsden Motion
Defendant contends the trial court abused its discretion when, following a
Marsden hearing in the firearm case, the court failed to find a sufficient showing that
defendant’s right to counsel was substantially impaired. The claim is not properly before
us.
While the narcotics case was pending, defendant was charged on January 24,
2013, with four new offenses, including possession of a firearm by a convicted felon.
Defendant appeared in court on March 5, 2013, with his appointed counsel but the
arraignment was continued to March 20, 2013. Prior to entering his not guilty plea on
that date, defendant made a motion to substitute counsel and a Marsden hearing was held.
Defendant complained that he was unhappy with appointed counsel because she had
pressured him unsuccessfully to accept a plea offer at the March 5, 2013, appearance; she
had not investigated the case -- specifically by interviewing witnesses and viewing a
purported video recording of the scene -- before advising him to accept the offer; and she
had not since learned the details of his case. Defendant also complained that appointed
counsel had not provided him or his family members any discovery, including a copy of
the video recording, which might have been erased automatically after 30 days.
After listening to appointed counsel’s response, the trial court ruled that appointed
counsel had been properly representing defendant; while there had been some
misunderstandings, they would not affect appointed counsel’s ability to represent
defendant now that she knows the full extent of defendant’s thoughts about the case. The
court believed appointed counsel could continue to properly represent defendant; the
Marsden motion was denied.
Defendant entered his no contest plea more than a month later, on May 9, 2013.
In People v. Lobaugh (1987) 188 Cal.App.3d 780 (criticized on another point in
People v. Maultsby (2012) 53 Cal.4th 296, 303), this court held that a defendant’s
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contention that “the trial court erroneously denied his motion[] for appointment of new
counsel” was “not cognizable” because “any errors were waived by his guilty plea.
Defendant makes no contention here that his guilty plea was not intelligently and
voluntarily made. Nor does defendant urge that the advice he received from counsel was
inappropriate concerning his plea resulting in the plea not being intelligently and
voluntarily made. The claimed Marsden error does not go to the legality of the
proceedings resulting in the plea. [Citations.] The defendant is thus foreclosed from
raising that issue on appeal.” (Lobaugh, at p. 786.)
Similarly here, defendant does not make any claim that his plea on May 9, 2013,
more than a month after the Marsden hearing, was somehow involuntary, unintelligent,
or the product of inappropriate advice from counsel. (See People v. Lovings (2004)
118 Cal.App.4th 1305, 1311.) The record, which sheds no light on the attorney-client
relationship following the Marsden hearing, utterly fails to support to such a claim. (Cf.
Lovings, at p. 1312 [“[t]he animosity and poor communications previously suggested or
alleged were not in evidence at the plea hearing”].) Because the denial of the Marsden
motion does not go to the legality of the ensuing plea, the Marsden claim is foreclosed on
appeal.1
Defendant counters that the Marsden issue is preserved because the trial court
issued a certificate of probable cause “on precisely this issue.” But Penal Code section
1237.5, which provides for certificates of probable cause, “is a procedural statute whose
impact ‘ “relates to the procedure in perfecting an appeal from a judgment based on a
plea of guilty, and not to the grounds upon which such an appeal may be taken.” ’ ”
1 Similarly, because the record does not show what investigation appointed counsel
conducted and what advice she rendered to him following the Marsden hearing and prior
to the plea, defendant cannot show that he received prejudicially ineffective assistance.
(E.g., People v. Avena (1996) 13 Cal.4th 394, 418.)
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(People v. Maultsby, supra, 53 Cal.4th at p. 302, quoting People v. Hoffard (1995)
10 Cal.4th 1170, 1178, italics added.) Thus, the trial court’s issuance of a certificate
pursuant to Penal Code section 1237.5 does not preserve a Marsden claim that is
otherwise foreclosed. (See People v. Lovings, supra, 118 Cal.App.4th at p. 1311, citing
Hoffard and explaining that “the lack of a certificate of probable cause played no part in
Lobaugh’s resolution of the Marsden issue.”
Defendant counters that Lovings should be rejected in favor of People v. Eastman
(2007) 146 Cal.App.4th 688, which addressed a Marsden issue after the defendant pled
no contest and obtained a certificate of probable cause. (Eastman, at pp. 690-691.) But
Eastman did not discuss the foregoing authorities or consider whether the certificate
somehow enlarged the grounds for the appeal. The opinion is not authority for
propositions it does not consider. (People v. Knoller (2007) 41 Cal.4th 139, 154-155.) In
any event, Maultsby’s recent reaffirmation of Hoffard deprives Eastman of whatever
persuasive force it otherwise might have had on this point. Defendant’s Marsden claim is
not properly before this court.
DISPOSITION
The judgment is affirmed.
ROBIE , J.
We concur:
RAYE , P. J.
HOCH , J.
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