People v. Ross

On review of a motion to suppress, we defer to the trial court’s factual findings, where supported by substantial evidence, but must independently assess, as questions of law, whether under the facts as found the challenged search and seizure conforms to the constitutional standard of reasonableness. (People v. Leyba (1981) 29 Cal.3d 591 , 596-597 [ 174 Cal.Rptr. 867 , 629 P.2d 961 ].) It is well established that in the absence of probable cause, police may stop and/or briefly detain a person if they have specific and articulable facts causing them to suspect that criminal activity has taken place, is taking place or is about to occur, and that the person they intend to stop or detain is involved in that activity. (Terry v. Ohio (1968) 392 U.S. 1 , 22 [ 20 L.Ed.2d 889 , 906-907, 88 S.Ct. 1868 ]; In re Tony C. (1978) 21 Cal.3d 888 , 893 [ 148 Cal.Rptr. 366 , 582 P.2d 957 ].) However, not all personal encounters between police and citizens involve a detention or “seizure” of the person. Seizure of the person occurs “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (United States v. Mendenhall (1980) 446 U.S. 544 , 554, fn. omitted [ 64 L.Ed.2d 497 , 509, 100 S.Ct. 1870 ].) What constitutes a restraint on liberty such that a person would conclude that he is not free to leave varies with the particular police conduct at issue and the setting in which the conduct occurs. (Michigan v. Chesternut (1988) 486 U.S. 567 , 573 [ 100 L.Ed.2d 565 , 571-572, 108 S.Ct. 1975 , 1979].) The 'officer’s state of mind is not relevant for resolution of this question except insofar as his overt actions would communicate that state of mind. (People v. Franklin (1987) 192 Cal.App.3d 935 , 940 [ 237 Cal.Rptr. 840 ]; People v. Bailey (1985) 176 Cal.App.3d 402 , 406 [ 222 Cal.Rptr. 235 ].)

In INS v. Delgado (1984) 466 U.S. 210 , 216 [ 80 L.Ed.2d 247 , 255, 104 S.Ct. 1758 ], the United States Supreme Court held that interrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a seizure. Merely asking for, rather than demanding, one’s driver’s license is permissible and does not amount to an intrusion upon any constitutionally protected interest. (Florida v. Royer (1983) 460 U.S. 491 , 501 [ 75 L.Ed.2d 229 , 238-239, 103 S.Ct. 1319 ]; United States v. Mendenhall, supra, 446 U.S. at p. 555 [64 L.Ed.2d at pp. 509-510]; People v. Lopez (1989) 212 Cal.App.3d 289 , 292-293 [ 260 Cal.Rptr. 641 ]; People v. Franklin, supra, 192 Cal.App.3d at p. 941; People v. Gonzales (1985) 164 Cal.App.3d 1194 , 1197 [ 211 Cal.Rptr. 74 ].) Moreover, where a consensual encounter has been found, police may ask a citizen to remove his hands from his pockets and inquire into the contents of pockets. (People v. Franklin, supra, at p. 941; People v. Epperson (1986) 187 Cal.App.3d 115 , 118-120 [ 232 Cal.Rptr. 16 ].) It is the mode or manner in which the request for identification or to remove one’s hands is put to the citizen, and not the

nature of the request, that determines whether compliance was voluntary. (People v. Franklin, supra, 192 Cal.App.3d at p. 941.)

In the instant case we conclude that no detention occurred. As appellant concedes, Officer Ketchum’s asking her name and where she lived was a consensual encounter. His request for identification to verify the information given did not transform the encounter into a detention. Thereafter, while waiting for her to produce identification, the record reveals that Ketchum “asked” but did not demand that appellant remove her hands from her pockets. We conclude that such a request cannot be reasonably construed as a show of authority sufficient to transform the encounter into a detention. (See People v. Franklin, supra, 192 Cal.App.3d at pp. 941-942; People v. Gonzales, supra, 164 Cal.App.3d at p. 1197.) However, even if the request to remove her hands was a detention, Officer Ketchum’s concern for his personal safety justified his conduct. Appellant’s removal of the contraband from her pocket and discarding it in plain view was purely a voluntary action unrelated to Ketchum’s conduct.

Appellant also contends that the imposition of restitution fines was improper and they must be stricken because she was not advised of the possibility of such fines when she entered her plea.

Following denial of her suppression motion, appellant changed her plea to nolo contendere pursuant to a plea bargain, to the lesser offense of possession of cocaine. At sentencing the court imposed restitution fines of $200 (Pen. Code, § 1203.04; restitution fund), $50 (§ 11372.5; lab fee) and $100 (§ 11372.7; drug program fee). However, there is no reference to restitution in the waiver form appellant executed, and the court did not advise her of any restitution requirement at the time appellant entered her plea. The People contend that since the restitution fines were referred to in the probation report, appellant’s failure to object or move to withdraw the plea at the time of sentencing constitutes a waiver. Alternatively, they contend that if no waiver is found, appellant should be permitted to withdraw her plea and reenter the original plea after reinstatement of the original charge.

Appellant relies on People v. Oberreuter (1988) 204 Cal.App.3d 884 , 888 [ 251 Cal.Rptr. 522 ], in which the Fourth District held, “[A] restitution fine, like any other penal consequence, may not be imposed on a plea-bargain participant where it was not included in the negotiated agreement.” In that case, as in the instant one, the written waiver form was silent as to the possibility of any fines being imposed. (Id., at pp. 888-889.) The court

concluded that because the defendant had completed a substantial portion of his prison term, permitting him to withdraw his guilty plea could not restore the status he enjoyed before sentencing. Thus, the court determined that it could modify the judgment by striking the restitution fine rather than remanding the case to the sentencing court. (Id., at pp. 889-890.)

In People v. Davis (1988) 205 Cal.App.3d 1305 , 1310 [ 252 Cal.Rptr. 924 ], the Fifth District disagreed with Oberreuter and held, “A failure to mention restitution, without more, in the course of advising a defendant of the consequences of his guilty plea, neither supports nor compels a finding that the parties have agreed that no restitution fine will be imposed.” In Davis, the restitution fine was ordered pursuant to Penal Code section 1202.4, subdivision (a), which mandates imposition of a restitution fine upon conviction of a felony unless there are compelling and extraordinary reasons why no such fine should be imposed. (Id., at p. 1309.) The court reasoned that because of the statutory mandate and the constitutional mandate implicit in the adoption of Proposition 8, it was improper to presume that failure to discuss restitution as part of a plea bargain prohibits such fine. Davis concluded that the “public policy represented by the mandatory fine “ ‘is too substantial to permit erosion’ by reliance on mere silence in the course of a plea bargain. [Citation.]” (Ibid.)

Davis then ruled that the failure to advise the defendant of the fine did not invalidate his guilty plea. Citing In re Yurko (1974) 10 Cal.3d 857 , 864 [ 112 Cal.Rptr. 513 , 519 P.2d 561 ], Davis concluded that since imposition of a restitution fine is a direct consequence of a guilty plea, and advisement of the direct consequences of a plea is required, the trial court’s failure to advise the defendant about the restitution fine before it accepted his guilty plea was error. (People v. Davis, supra, 205 Cal.App.3d at p. 1310.) Although the defendant contended he would not have accepted the plea with the fine, the Court of Appeal found the error harmless since the record showed that the prosecution’s case against him was strong, that the defendant accepted the plea even though it reduced his maximum sentence exposure by only three years, and because the trial court imposed the minimum statutory fine possible. The court thus concluded the defendant was not entitled to withdraw his guilty plea.

Boykin v. Alabama (1969) 395 U.S. 238 [ 23 L.Ed.2d 274 , 89 S.Ct. 1709 ] and In re Tahl (1969) 1 Cal.3d 122 [ 81 Cal.Rptr. 577 , 460 P.2d 449 ] require as a condition to accepting a plea of guilty or nolo contendere that the accused be advised of, and waive, the rights of self-incrimination, confrontation and jury trial. (In re Tahl, supra, at p. 132.) The accused must also be advised of the nature of the charges and the consequences of a conviction. (Id., at p. 131.) This is a relatively simple task, and one which