P. v. Anderson

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Filed 6/5/07 P. v. Anderson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yuba)
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THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL THOMAS ANDERSON,
Defendant and Appellant.
C052270
(Super. Ct. No.
CRF05708)
Pursuant to a plea agreement, defendant Michael Thomas
Anderson pled no contest to possession of ephedrine or
pseudoephedrine with the intent to manufacture methamphetamine
(Health & Saf. Code, § 11383, subd. (c)(1)) and admitted a prior
conviction within the meaning of Health and Safety Code
section 11370.2, subdivision (c). The trial court sentenced
defendant to nine years in prison, imposed various fines and
fees including a restitution fine of $1,800, and suspended an
additional restitution fine of $1,800 pending successful
completion of parole.
On appeal, defendant contends the trial court should have
granted his suppression motion, and the imposition of the
$1,800 restitution and parole revocation fines violated the plea
agreement. We reject the contentions and affirm.

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BACKGROUND
The facts are taken from the suppression hearing. On
October 12, 2005, around 10:00 p.m., Yuba County Sheriff’s
Deputy Jason Nakamura, while on patrol with other officers as
part of a stolen vehicle task force, responded to a call about a
grey Chevrolet Suburban on Olivehurst Avenue. Nakamura found a
gray Suburban in a parking lot in front of some duplexes.
Deputy Nakamura did not use the emergency lights as his
patrol car approached the Suburban. He and the other officers
left the patrol car and walked toward the Suburban. Looking
inside the vehicle with his flashlight, Nakamura found defendant
“in there, and he was just wet, just drenched wet. Looked like
sweat and kind of curled up, and he was shaking.” This
concerned Nakamura because the night was cool and chilly, so
the deputy knocked on the window in order to determine whether
defendant needed help.
Deputy Nakamura’s efforts were unsuccessful, so another
deputy opened one of the Suburban’s doors and yelled at the
still-sleeping defendant. Once defendant woke up, Nakamura
asked him if he was all right. Defendant said he was fine, and
the deputy asked if he would step outside and talk “for a
moment.” Defendant said “[y]eah, sure” and left the Suburban,
exiting on the side opposite from Nakamura.
Once defendant left the Suburban, Deputy Nakamura
immediately went around the vehicle to question him. As the
deputy talked to defendant, he “noticed [defendant] was looking
all around and still kind of shaking, playing with his hands,

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smacking his lips, that sort of behavior.” This led the deputy
to suspect that defendant was under the influence of a
stimulant.
Deputy Nakamura asked defendant when he had last used a
controlled substance and if he was currently under the influence
of anything. Defendant replied that he did not think so, and he
had last used drugs about a week earlier. Nakamura asked
defendant if he could evaluate him to make sure he was not under
the influence of anything, and defendant said “sure, yeah.”
Nakamura checked his pulse and “tested his Rhomberg, internal
clock,” both of which were elevated. Defendant’s pupils
constricted and then dilated when light was shined on them.
The evaluation led Deputy Nakamura to conclude that
defendant was under the influence of a controlled substance, so
he arrested him. A warrant check was made during the encounter,
which turned up an outstanding arrest warrant for defendant.
The Suburban was searched after defendant’s arrest, and evidence
was seized from the vehicle. The entire encounter took less
than five minutes.
During the encounter with defendant, Deputy Nakamura held
his gun at his side, and thought he kept it behind his left leg,
as was his practice. The deputy, who was the only witness at
the suppression hearing, stated there were a total of three or
four deputies surrounding the Suburban. Nakamura first
testified that he believed the other deputies had their weapons
out during the encounter. He subsequently testified that he did
not know whether the other deputies’ guns were drawn.

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The trial court denied the suppression motion, finding
Deputy Nakamura had held his gun behind his leg during the
encounter and concluding defendant was subjected to a consensual
encounter rather than a detention.
DISCUSSION
I. The Suppression Motion
Defendant contends the trial court should have granted the
suppression motion because the sheriff’s deputies had detained
defendant since the start of the encounter. We conclude
defendant was not detained and therefore his arrest and
subsequent search were legal.
We review “the trial court’s denial of a motion to
suppress . . . in the light most favorable to the trial court’s
ruling, deferring to those express or implied findings of fact
supported by substantial evidence. [Citations.] We
independently review the trial court’s application of the law to
the facts. [Citation.]” (People v. Jenkins (2000) 22 Cal.4th
900, 969.) When reviewing questions of law, such as the
reasonableness of an officer’s actions, we exercise our
independent judgment. (People v. Camacho (2000) 23 Cal.4th 824,
830.)
“A seizure of the person within the meaning of the Fourth
and Fourteenth Amendments occurs when, ‘taking into account all
of the circumstances surrounding the encounter, the police
conduct would “have communicated to a reasonable person that he
was not at liberty to ignore the police presence and go about
his business.”’ [Citation.] This test is derived from Justice

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Stewart’s opinion in United States v Mendenhall, 446 US 544,
64 L Ed 2d 497, 100 S Ct 1870 (1980), see California v
Hodari D., 499 US 621, 627-628, 113 L Ed 2d 690, 111 S Ct 1547
(1991), which gave several ‘[e]xamples of circumstances that
might indicate a seizure, even where the person did not attempt
to leave,’ including ‘the threatening presence of several
officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language or
tone of voice indicating that compliance with the officer’s
request might be compelled.’ [Citation.]” (Kaupp v. Texas
(2003) 538 U.S. 626, 629-630 [155 L.Ed.2d 814, 819-820].)
In contrast, a seizure “does not occur simply because a
police officer approaches an individual and asks a few
questions. So long as a reasonable person would feel free ‘to
disregard the police and go about his business,’ [citation], the
encounter is consensual and no reasonable suspicion [of criminal
activity] is required. The encounter will not trigger Fourth
Amendment scrutiny unless it loses its consensual nature. . . .
‘Only when the officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen
may we conclude that a “seizure” has occurred.’” (Florida v.
Bostick (1991) 501 U.S. 429, 434 [115 L.Ed.2d 389, 398].)
Defendant’s claim that he was detained before he was
arrested centers on two factors, the number of officers at the
scene and the presence of drawn weapons. He argues that
“because the police had drawn weapons when they first
encountered [defendant],” he “was detained at that moment.”

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Since the deputies had no articulable suspicion of wrongdoing
when they first encountered defendant, defendant concludes that
his arrest and the subsequent search must be suppressed as the
fruits of an illegal detention.
The trial court found that Deputy Nakamura did not point
his gun at defendant and implicitly found that the other
deputies also did not point their weapons at defendant.1 These
conclusions are supported by substantial evidence. Nakamura
testified he held his gun at his side and probably behind his
leg. Although the deputy initially testified that the other
officers had their weapons out, in his later testimony, Nakamura
stated he did not know whether their weapons were drawn. The
deputy also noted his attention was solely focused on defendant
rather than on the other deputies. Based on this evidence, the
trial court could reasonably conclude that Nakamura did not know
whether the other deputies had their guns out.
Deferring to the trial court’s implied finding that none of
the deputies present were pointing their guns at defendant, we
conclude defendant was not detained before his arrest. Although
several officers were present, all other relevant factors point
1 The trial court’s denial of the suppression motion was based
on its finding that Deputy Nakamura did not point his weapon at
defendant. Had the trial court concluded that the other
deputies pointed their weapons at defendant, it presumably would
have held that defendant was detained throughout the encounter.
Since the trial court held that defendant was not detained
before his arrest, it implicitly found the other officers did
not point their weapons at him.

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to a consensual encounter rather than a detention. No emergency
lights were employed, and Deputy Nakamura initiated the
conversation by expressing concern for defendant’s welfare.
Defendant was never ordered to do anything by Nakamura or any
other law enforcement personnel. Instead, the deputy asked
defendant if he would get out of the vehicle and if he would
submit to a field test for drugs. Finally, the encounter was
brief, taking no more than a few minutes. We conclude from the
circumstances surrounding the encounter that a reasonable person
in this situation would feel free to go about his or her
business.
Since defendant does not contest the probable cause
supporting his arrest or the deputies’ authority to search the
Suburban incident to a valid arrest, we affirm the trial court’s
denial of the suppression motion.
II. Fines and the Plea Agreement
Defendant contends that the imposition of restitution and
parole revocation fines above the statutory minimum violated the
plea agreement. Finding the plea agreement did not address
these mandatory fines, we reject the contention.
Under the terms of the plea agreement, defendant would
plead no contest to one count of possession of ephedrine or
pseudoephedrine with the intent to manufacture methamphetamine
and admit a prior conviction within the meaning of Health and
Safety Code section 11370.2, subdivision (c) in exchange for
dismissal of the other counts and allegations. The trial court
advised defendant that as a consequence of pleading no contest

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he would be subject to restitution and parole revocation fines,
with each fine ranging between $200 and $10,000. Defendant
acknowledged understanding the trial court’s explanation. The
court did not advise defendant of his right to withdraw the plea
pursuant to Penal Code section 1192.5 if the court did not
sentence him in accordance with the plea agreement. Defendant
did not object to the fines at sentencing.
Relying on People v. Walker (1991) 54 Cal.3d 1013 (Walker),
defendant contends the trial court violated the plea agreement
when it imposed a restitution fine of $1,800. In that case, the
defendant signed a change of plea form, initialing his
understanding of the agreement. (Id. at p. 1019.) He agreed to
be sentenced to prison for five years. The court orally
explained that “‘the maximum penalties provided by law for this
offense are either 3 years, 5 years, or 7 years in state prison
and a fine of up to $10,000,’ followed by a period of parole.”
(Ibid.) The court sentenced the defendant to a five-year prison
term but also imposed a restitution fine of $5,000, even though
the plea agreement did not mention such a fine. (Ibid.) The
defendant did not object to the fine at sentencing, but on
appeal he argued that the restitution fine should be stricken
because it was not a part of the plea bargain. (Ibid.)
The Supreme Court explained that there were two principles
at work. The first was a defendant’s right to be advised of the
direct consequences of the plea, a “‘judicially declared rule of
criminal procedure,’” which may be forfeited absent a timely
objection and which requires a showing of prejudice by the

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appellant. (Walker, supra, 54 Cal.3d at pp. 1020, 1022-1023.)
The second was the principle that the parties must adhere to the
terms of a plea bargain. (Id. at p. 1020.) Violation of the
bargain raises a constitutional right to a remedy. (Id. at
p. 1024.) This latter right cannot be forfeited by mere failure
to object at sentencing, unless the trial court specifically
informed the defendant pursuant to Penal Code section 1192.5
prior to making the plea that its approval is not binding; the
court may withdraw its approval at the time of application for
probation or pronouncement of judgment; and in such case, the
defendant could withdraw the plea. (Walker, at pp. 1024-1025.)
A violation of a plea bargain is not subject to a harmless error
analysis. (Id. at p. 1026.) The remedy is to reduce the fine
to the statutory minimum. (Id. at p. 1027.)
Defendant’s claim is precluded by the recently decided case
of People v. Crandell (April 30, 2007, S134883) 40 Cal.4th 1301
[2007 Cal. Lexis 4271] (Crandell). In Crandell, the trial court
imposed a $2,600 restitution fine that had not been mentioned by
the prosecutor in the recitation of the plea agreement. (Id. at
p. *1.) Relying on Walker, the defendant contended that the
fine violated his plea bargain and should be reduced to the $200
statutory minimum. (Id. at pp. *1-2.)
The Supreme Court rejected the defendant’s argument,
finding no error under Walker. (Crandell, supra, 40 Cal.4th at
p. *2.) In Crandall, the record showed that “the trial court,
before taking defendant’s plea, accurately advised him he would
‘have to pay a restitution fund fine of a minimum of $200, a

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maximum of $10,000’ and ascertained that the prosecution had not
made ‘any other promises’ beyond that the defendant would be
sentenced to 13 years in prison,” effectively distinguishing the
case from Walker. (Crandell, at p. *14.) The Supreme Court
concluded that under “these circumstances, it is clear that when
defendant entered his plea, he could not reasonably have
understood his negotiated disposition to signify that no
substantial restitution fine would be imposed.” (Id. at
p. *15.)
The factors present in Crandell are also present here.
Defendant was advised that the fines were a consequence of his
plea and he represented that no one had made any other promises
to him than those recited in the terms of the plea agreement.
Accordingly, we conclude defendant could not have reasonably
understood that his plea precluded the imposition of a
substantial restitution fine.
DISPOSITION
The judgment is affirmed.
RAYE , J.
I concur in the judgment and opinion except as to part I of the
Discussion, as to which I concur in the result.
BLEASE , Acting P.J.
I concur:
CANTIL-SAKAUYE , J.

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