Filed 12/9/19 P. v. Clements 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(El Dorado)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

KARL DANE CLEMENTS,

Defendant and Appellant.

C087162

(Super. Ct. No. P14CRF0306)

A jury found defendant Karl Dane Clements guilty of possessing a false compartment, carrying a concealed firearm in a vehicle while a convicted felon, and possessing a firearm while a felon. Defendant pleaded no contest to selling methamphetamine and admitted an allegation he was armed with a firearm while in possession of a false compartment, an allegation on which the jury had not returned a finding. On appeal, defendant contends: (1) the trial court erred in denying his motion to suppress evidence obtained in a traffic stop because the officer did not have an objectively reasonable suspicion of criminal activity to stop the car; (2) the trial court erred in failing to stay one of the consecutive sentences for either possession of a concealed firearm in a vehicle or possession of a firearm by a felon under Penal Code section 654; and (3) the trial court erred in accepting defendant’s plea on the firearm enhancement because it subjected him to double jeopardy after the jury impliedly acquitted him of the enhancement. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

California Highway Patrol Officer David L. Rodgers initiated a traffic stop during which defendant did not produce a driver’s license and provided a name for the registered owner of the car that did not match registration documents. Officer Rodgers noticed a marijuana smell and commenced a canine drug sniff with his on-duty dog. The dog alerted to an Ajax™ container in the backseat that did not have any narcotics in it but contained a false compartment with plastic bags. The officer also found a backpack with a scale, syringes, a methamphetamine smoking pipe, and paperwork addressed to defendant. The officer observed multiple loose panels in the car’s interior where the plastic was pulled away from the metal, and it appeared the panels had been removed or manipulated.

Based on defendant’s behavior, the canine alert to a container with a false compartment and baggies, the loose panels, and the scale, Officer Rodgers grew suspicious there might be additional drugs in the car. He had the car towed to a California Highway Patrol office where he conducted an additional canine drug sniff process and the dog alerted to the driver’s side air conditioning vent. The vent appeared manipulated and came off easily; there was tape inside the vent and the plastic air duct had been cut. Inside the air duct, there were two plastic bags containing over 30 grams of methamphetamine. The officer also discovered a loaded semiautomatic handgun hidden inside the kick panel. Based on this evidence, he opined defendant possessed the methamphetamine for sale.

Defendant filed a pretrial motion to suppress all evidence discovered in the search of the vehicle, contending the traffic stop was pretextual and unreasonable. Officer Rodgers testified during a hearing on the motion that he observed defendant’s car travelling on the freeway at 50 miles per hour, well below the posted speed limit of 65 miles per hour, with multiple vehicles backed up behind it and applying their brakes. After Officer Rodgers moved behind the car, he observed it weaving within its lane and crossing “the gore point, essentially the painted lines that determine the transition from one roadway to another” near an off ramp. Based on the officer’s training and experience, he concluded the driver could be impaired or sleepy or the vehicle had a mechanical issue.

The trial court denied defendant’s motion to suppress, concluding there was reasonable cause to stop the car because defendant was driving slowly, weaving, and crossed the solid white “gore point” lines. Defendant renewed the motion just before trial, and the court again denied the motion.

Following trial, a jury found defendant guilty of possession of a false compartment (Health & Saf. Code, § 11366.8, subd. (a)) (count 3), having or carrying a concealed firearm in a vehicle by a felon (§ 25400, subd. (a)(1)) (count 5), and possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 6). The jury could not reach a unanimous verdict on several remaining counts, and the court declared a mistrial as to those counts. The jury did not return a finding as to an enhancement allegation related to count 3 that defendant was armed with a firearm (§ 12022, subd. (a)(1)). Defendant pleaded no contest to one of the remaining counts, sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) (count 2) and admitted the firearm allegation as to count 3. Defendant agreed to a specified prison term of seven years. As part of the plea agreement, defendant waived his right to appeal, but the trial court clarified he could still appeal the jury verdict and motion to suppress.

The trial court initially sentenced defendant to serve an aggregate term of seven years in state prison, as follows: the upper term of four years on count 2; one-third the midterm, eight months, on count 3; one additional year for the firearm allegation on count 3; one-third the midterm, eight months, on count 5; and one-third the midterm, eight months, on count 6, all to be served consecutively. The trial court later corrected an error in defendant’s sentence, vacating the one-year term as to count 3, the firearm allegation and imposing a consecutive term of four months, for an aggregate term of six years four months.

DISCUSSION

I

Motion to Suppress

Defendant contends the trial court erred in denying his motion to suppress, arguing Officer Rodgers lacked a reasonable suspicion sufficient to stop defendant’s car. Specifically, he argues defendant’s driving could not evoke a reasonable suspicion of any of the possible specific Vehicle Code violations. The Attorney General argues that regardless of whether defendant committed a specific violation, the totality of these circumstances justified the stop. We agree.

In reviewing the denial of a motion to suppress, we examine the record in the light most favorable to the People, resolving all factual conflicts in favor of the trial court’s factual findings. (People v. Bloom (2010) 185 Cal.App.4th 1496, 1500.) On the legal question of whether a search or seizure was reasonable under the Fourth Amendment, we exercise our “independent judgment.” (Ibid.)

The Fourth Amendment’s prohibition against unreasonable seizures applies to investigative stops of vehicles. (United States v. Sharpe (1985) 470 U.S. 675, 682 [84 L.Ed.2d 605, 613].) A police officer may, however, stop and detain for investigation a motorist on reasonable suspicion the driver has violated the law. (Ornelas v. U.S. (1996) 517 U.S. 690, 693 [134 L.Ed.2d 911, 917].) “[A]n officer may stop and briefly detain a suspect for questioning for a limited investigation even if the circumstances fall short of probable cause to arrest.” (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 509.) Reasonable suspicion requires that the officer “be able to ‘point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.’ [Citation.]” (Ibid.) Our Supreme Court has held: “[I]f the circumstances are ‘consistent with criminal activity,’ they permit—even demand—an investigation . . . . The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his [or her] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . .” (In re Tony C. (1978) 21 Cal.3d 888, 894 (Tony C.).) For example, erratic driving that does not constitute a traffic violation may justify an officer to stop a vehicle to determine whether the driver is intoxicated or unable to drive safely. (People v. Russell (2000) 81 Cal.App.4th 96, 102 (Russell).)

The court’s reasoning in Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480 is persuasive. There, the officer reported the car was weaving within a lane. (Id. at pp. 1484-1485.) The court reasoned, “Weaving within a lane is a widely recognized characteristic of an intoxicated driver and recognizing a weaving driver is undoubtedly within the province of even the most junior officer.” (Id. at p. 1485.) Further, the court concluded the lack of evidence the vehicle was weaving over a substantial or considerable distance did not preclude a finding of reasonable suspicion to stop its driver for investigation. (Id. at pp. 1485-1486; see also Russell, supra, 81 Cal.App.4th at p. 104 [holding that the fact the defendant was “drifting around in his lane” justified an investigatory stop].)

While defendant focuses the bulk of his argument on whether he violated any particular traffic law, he does not address the body of cases reasoning that an investigatory traffic stop is justified when an officer witnesses erratic driving, regardless of whether a particular law is violated. Weaving alone was sufficient to justify the stops in Russell, supra, 81 Cal.App.4th 96 and Arburn supra, 151 Cal.App.4th 1480. Here, the trial court made factual findings that not only was defendant’s car weaving within its lane, he was driving significantly below the speed limit and then crossed the solid painted lines, or gore point, near an off ramp. The totality of the circumstances was consistent with criminal activity, particularly intoxicated driving, such that the officer had an objectively reasonable suspicion to stop the car and investigate further. (See Tony C., supra, 21 Cal.3d at p. 894.) Accordingly, we reject defendant’s argument.

II

Multiple Punishment under Section 654

Defendant argues his consecutive sentences on counts 5 and 6 violated the section 654 prohibition against multiple punishments for the same conduct. The Attorney General contends defendant’s claim is forfeited because he agreed to a specified sentence in his plea agreement. We agree.

In relevant part, section 654 provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) “Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences.” (People v. Deloza (1998) 18 Cal.4th 585, 592.) To avoid multiple punishment, compliance with section 654 requires a stay of execution of the sentence on each count that would otherwise result in multiple punishment. (People v. Jones (2012) 54 Cal.4th 350, 353.)

Here, as the Attorney General concedes, the convictions for carrying the firearm concealed in the vehicle while a felon in count 5 and possession of the firearm while a felon in count 6 stemmed from the single act of defendant keeping the firearm in the vehicle. However, an agreement to a “specified term in prison” to which a defendant is sentenced “abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record.” (Cal. Rules of Court, rule 4.412(b).) Our Supreme Court’s interpretation of this rule is clear and controlling: “The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. . . . [Citations.] While failure to object is not an implicit waiver of section 654 rights, acceptance of the plea bargain here was.” (People v. Hester (2000) 22 Cal.4th 290, 295.) In Hester, the defendant entered a negotiated plea in exchange for a specified term and raised a challenge under section 654 on appeal. (Id. at pp. 293-294.) The Supreme Court held that under rule 4.412(b), when the defendant failed to raise a section 654 objection to any possible concurrent term at the time he entered his negotiated pleas, “he [or she] abandoned ‘any claim that a component of the sentence violate[d] section 654’s prohibition of double punishment.’ ” (Hester, at p. 296.) Here, as in Hester, defendant entered a plea in exchange for a specified sentence and did not raise a section 654 objection below. We are bound to follow our high court’s holding in Hester and reject defendant’s claim. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

III

Double Jeopardy

Defendant contends the jury impliedly acquitted him when it failed to make a finding on the count 3 firearm allegation, and the trial court thus lacked jurisdiction to accept defendant’s admission of this enhancement in the subsequent plea agreement. He claims this violated his right against double jeopardy. The Attorney General contends that because defendant admitted this allegation as part of a plea agreement expressly waiving his right to appeal, he may not raise this claim on appeal. We agree.

The federal Constitution requires that “[n]o person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb.” (U.S. Const., 5th Amend.) Double jeopardy presumptively applies not only to substantive charges but also to special allegations. (People v. Saunders (1993) 5 Cal.4th 580, 593.) An acquittal in the double jeopardy context may be implied in some circumstances, such as when the jury returns a verdict on a lesser included offense that implies an acquittal of the greater offense. (People v. Fields (1996) 13 Cal.4th 289, 299.) The Supreme Court has held the protection against double jeopardy, however, is subject to waiver in an intelligent and voluntary plea bargain. (United States v. Broce (1989) 488 U.S. 563, 568-569 [102 L.Ed.2d 927, 934-935] (Broce).) There, the court reasoned that a guilty plea waives a double jeopardy claim unless the subsequent charge is “facially duplicative” of an earlier charge for which the defendant was convicted and sentenced. (Id. at pp. 575-576.)

Here, defendant expressly waived his right to appeal the firearm enhancement. He does not directly challenge the intelligence or voluntariness of his appellate waiver but contends the trial court was nevertheless precluded by the Constitution from accepting the plea on the enhancement under Blackledge v. Perry (1974) 417 U.S. 21 [40 L.Ed.2d 628] and Menna v. New York (1975) 423 U.S. 61 [46 L.Ed.2d 195]. However, in Broce, the Supreme Court both clarified and limited its holdings in these cases. There, the defendants pleaded guilty to two counts of conspiracy and contended on appeal that because only one conspiracy existed, their convictions on multiple counts violated double jeopardy. (Broce, supra, 488 U.S. at p. 565.) The Supreme Court held that their challenge was foreclosed by their guilty pleas. (Ibid.) The Court reasoned the narrow exception to the rule barring collateral attack on a guilty plea established in Blackledge and Menna was that a guilty plea does not waive a double jeopardy claim where a subsequent charge is “facially duplicative,” such as in Menna, where the indictment to which the defendant pleaded guilty was on its face duplicative of an earlier charge for which the defendant was convicted and sentenced. (Broce, at pp. 575-576, citing Menna, at pp. 62-63.)

Here, in contrast to Blackledge, supra, 417 U.S. 21 and Menna, supra, 423 U.S. 61, the jury did not convict or acquit defendant of the firearm allegation on count 3 but instead was silent. Defendant cites several cases for the proposition that the doctrine of implied acquittal applies to a scenario where “the jury convicted on some counts, deadlocked on others, and was silent as to” one count or enhancement. But even if defendant is correct the doctrine of implied acquittal is applicable here, he does not show how the plea to the enhancement was on its face duplicative of an earlier acquittal such that the Supreme Court’s waiver analysis in Broce would not apply. Because the jury’s silence was not a clear acquittal, requiring defendant to cite a complex rubric of cases to argue he was implicitly acquitted, it is difficult to see how he can claim the trial court should have found the plea to the enhancement facially duplicative of a prior acquittal. Indeed, defendant cites no authority to support the proposition that an implied acquittal can be a basis for the narrow exception to waiver applied in Blackledge and Menna. Thus, we conclude defendant waived his double jeopardy challenge. (Broce, supra, 488 U.S. at pp. 568-569.)

DISPOSITION

The judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

MURRAY, Acting P. J.

/s/

KRAUSE, J.