Filed 2/20/14 P. v. Estrada CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

RUBEN MORA ESTRADA, 

Defendant and Appellant. 

 H038280 

 (Santa Cruz County 

 Super. Ct. No. F20622) 

 Defendant Ruben Mora Estrada was convicted by a jury of possession for sale of a 

controlled substance (Health & Saf. Code, § 11351)1

 and being under the influence of a 

controlled substance (§ 11550, subd. (a)). He was sentenced to 36 months probation and 

300 days in county jail on those charges.2

 

 On appeal, Estrada contends the judgment must be reversed because the 

prosecutor failed to turn over evidence prior to the preliminary hearing which would have 

supported his motion to suppress evidence and this failure amounts to a Brady3

 violation. 

Estrada also argues that the trial court incorrectly calculated his presentence credits, a 

position the People concede. 

 1

 Further unspecified statutory references are to the Health and Safety Code. 

2

 At his sentencing hearing, Estrada also pleaded no contest to various charges in 

separate cases, the details of which are set forth below. 

3 Brady v. Maryland (1963) 373 U.S. 83 (Brady). 
2

 We reject Estrada’s Brady argument, but find the People’s concession regarding 

the credits calculation is appropriate. Accordingly, we shall modify the judgment to 

award Estrada the additional credit claimed and, as modified, affirm the judgment. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

 Estrada was charged by information with possession of heroin for sale (§ 11351) 

and being under the influence of opiates and amphetamine (§ 11550, subd. (a)). 

A. Prosecution’s case 

 On March 13, 2011, Santa Cruz Police Detective Daniel Forbus and a trainee 

officer saw Estrada riding a bicycle the wrong direction on a one-way street. The officers 

turned their patrol car around and activated their lights to stop the bicycle. Estrada pulled 

into a nearby driveway and stopped. 

 Forbus got out of the patrol car and asked Estrada to sit down, informing him he 

was being detained for a Vehicle Code violation. Forbus recognized Estrada because 

three to six weeks earlier, Forbus had observed Estrada riding a bicycle the wrong way on 

a one-way street and at that time had given him a warning. Forbus directed the trainee 

officer to write the citation and they obtained Estrada’s I.D. 

 Forbus then noticed Estrada had a knife inside a sheath on his waistband and told 

Estrada that he wanted to secure the knife during the detention. Forbus advised Estrada 

that he would be taking the knife and cautioned him not to reach for it. Estrada complied 

and as Forbus was securing the knife, he asked if Estrada had any other weapons. 

Estrada said he had another knife in one of his pockets and started to reach for it. Forbus 

had Estrada put his hands behind his back, where he held Estrada’s hands with one hand 

while he conducted a pat search to make sure Estrada had no other weapons on his 

person. Forbus found the second knife in Estrada’s left front pocket, but found no other 

weapons. Both knives were legal. 

 Prior to the pat search, Forbus noticed Estrada’s face had been “scratched and 

picked.” Forbus suspected Estrada’s facial appearance was the result of heroin or 
3

methamphetamine use, which can cause the user’s skin to itch, leading to repeated 

scratching. During the pat search, he observed additional signs of narcotics usage, 

specifically that Estrada was sweating profusely yet his hands were clammy and cold. 

All of these factors led Forbus to believe Estrada was possibly under the influence of a 

controlled substance or narcotic. Forbus asked Estrada where he was riding from and 

what he was doing in order to see if there was another explanation for his appearance, but 

nothing Estrada said accounted for these physiological symptoms. 

 Forbus therefore detained Estrada pursuant to section 11550 to perform an under 

the influence evaluation. Estrada’s pupils reacted only slightly or not at all when Forbus 

shined a flashlight in his eyes, and his pulse was high. Based on these observations, 

Forbus took Estrada into custody for being under the influence of a controlled substance. 

The officers emptied Estrada’s pockets, finding a coin purse, a cellular phone, and a 

notebook. 

 At the police department, Estrada was advised of, and waived, his Miranda4

 rights. 

Forbus administered several physical tests and obtained a urine sample from Estrada, 

which tested positive for opiates, amphetamine, and THC (tetrahydrocannabinol). The 

physical tests also indicated that Estrada was under the influence of narcotics and Forbus 

observed track marks on Estrada’s arms. Based on all these factors, Forbus concluded 

that Estrada abused multiple drugs and was currently under the influence of opiates and 

amphetamines. 

 Forbus searched Estrada’s belongings and inside the coin purse, he found 17 

plastic Ziploc baggies containing what he believed to be heroin. Fourteen of the baggies 

were small with spade-shaped logos on them, weighing between 0.2 and 0.4 grams. The 

remaining three baggies were larger, had no logos and weighed between 0.6 and 0.7 

 4 Miranda v. Arizona (1966) 384 U.S. 436. 
4

grams. Forbus selected one of the 17 baggies at random and the substance inside tested 

positive for the presence of opiates. 

 Forbus found $35 in Estrada’s wallet and $100 inside an envelope in his inner coat 

pocket. Inside the notebook, Forbus found “pay-and-owe sheets” that contained different 

people’s names with a number assigned to each name. These documents indicated to 

Forbus that Estrada was selling drugs and “keeping business records of the client base . . . 

.” 

 After Forbus told Estrada he believed he was under the influence of opiates and 

amphetamines, Estrada said he had used heroin about 9:30 that morning. He said he 

typically uses about 0.3 to 0.5 grams twice a day. Estrada denied that the money 

recovered from his person was from drug sales. 

 A forensic toxicologist testified that subsequent laboratory tests confirmed the 

presence of methamphetamine and amphetamine in Estrada’s urine. A criminalist 

testified that she analyzed the substance found in three of the Ziploc baggies5

 and 

determined that it was heroin with a net weight of 1.03 grams. 

 On November 22, 2011, while Estrada was an inmate at the jail, a correctional 

officer strip searched him. In Estrada’s anal cavity, the officer found a substance 

wrapped in plastic wrap that tested positive for heroin. After Estrada was advised of his 

Miranda rights, he admitted that the substance was heroin. 

 Santa Cruz Police Officer Bill Azua testified as an expert on heroin use and sales 

and opined that Estrada possessed the heroin found on his person for the purpose of sale. 

Azua based his opinion on several factors, including the spade design on some of the 

baggies that identified the type of heroin inside, and the consistency of weight in each of 

the baggies. In addition, the pay-owe sheets in Estrada’s notebook contained numbers 

 5

 The criminalist selected two of the smaller baggies and one of the larger baggies 

for analysis. 
5

consistent with the street price of heroin. Azua also testified that drug sellers usually 

keep money in separate locations on their person, in case they are robbed. He also found 

it significant that Estrada had two knives, believing one was concealed “in case bad 

things happen during the transaction.” 

B. Defense case 

 Santa Cruz County Correctional Officer Sammy Medina testified he conducted a 

strip-search of Estrada on November 22, 2011, as Estrada was being booked into jail. 

Medina noticed a foreign object in Estrada’s anal cavity which he asked Estrada to 

remove. Estrada did so and dropped a round black object, wrapped in clear plastic, on 

the floor. The substance was later found to be heroin. 

 Julian Mendoza testified that Estrada, with whom he has been friends for 25 or 30 

years, sometimes worked for him doing tree work when Estrada needed extra money. He 

said Estrada did some work for him around March 2011. 

C. Verdict and sentencing

 The jury found Estrada guilty as charged. On April 12, 2012, the court imposed a 

sentence of 36 months probation and 300 days in county jail on these charges. At his 

sentencing hearing, Estrada also pleaded no contest to charges filed in a separate case 

(Sup. Ct. Santa Cruz County, 2012, No. F21845) of bringing drugs into the jail facility 

(Pen. Code, § 4573) and being in possession of an illegal controlled substance in a jail 

facility (id., § 4573.6), in exchange for 36 months probation and 180 days jail time that 

could be completed in an outpatient residential treatment program.6

 

 6

 Estrada also pleaded no contest to a trailing charge (Sup. Ct. Santa Cruz County 

No. M60504) of petty theft in exchange for a one day concurrent jail sentence. In 

accordance with the plea agreement, the trial court granted the People’s motion to dismiss 

an additional misdemeanor count in case No. M60504 as well as a second trailing case 

(Sup. Ct. Santa Cruz County No. M63526) in its entirety in the interests of justice. 
6

II. DISCUSSION

 Estrada raises two issues on appeal: (1) the People committed a Brady violation 

by failing to turn over a CAD (computer aided dispatch) log which would have shown his 

initial detention was unduly prolonged and the subsequent arrest and search were thus 

unlawful; and (2) the trial court failed to award conduct credits pursuant to Penal Code 

section 4019. 

A. Facts relevant to Estrada’s motions to suppress

 Prior to the December 2011 preliminary hearing, Estrada filed a motion pursuant 

to Penal Code section 1538.5 to suppress all evidence obtained as a result of his 

warrantless detention, search, and arrest. The motion was premised on Estrada’s 

contention that his detention was unduly prolonged since it exceeded the time necessary 

for him to be cited for a traffic violation. 

 At the preliminary examination, Forbus said somewhere between five and 10 

minutes elapsed as he conducted his infield evaluation of Estrada after noticing the 

symptoms that he was under the influence of a controlled substance. On crossexamination, he said “I don’t think we were out there for honestly more than ten minutes 

but I don’t know.” 

 After the motion to suppress was argued, the trial court denied it, stating “I don’t 

believe based on everything I heard from Officer Forbus that he was on some sort of 

fishing expedition here. This was all happening concurrently and I think--he testified that 

as he encountered the subject he calls in for the warrant check and was waiting for a 

response from dispatch while he was engaged in all of these other activities. There was 

nothing about the communication with dispatch that prolonged anything here.” 

 Prior to trial, Estrada filed a renewed motion to suppress evidence, again arguing 

his detention was unduly prolonged. At the hearing on the motion, Estrada’s counsel 

moved to introduce into evidence a “CAD log of the radio traffic that transpired during 

the detention.” Defense counsel had not received this log until a week and a half prior to 
7

the hearing on the renewed motion and argued it “certainly would have been germane” to 

the initial motion to suppress had it been discovered prior to the hearing on that motion. 

 Estrada’s counsel argued the log demonstrated “that there was a 20-minute span of 

time between the initial contact” and Estrada’s arrest for being under the influence. 

Therefore, it supported the defense theory that “this was an unduly prolonged detention 

given that the officer merely didn’t write a citation for riding a bicycle the wrong way 

down a one way street. . . . I think we can all agree that it wouldn’t take anybody more 

than one minute probably to complete the Information [sic] called for in that citation.” 

 The prosecutor told the trial court the People had not received a specific request 

for the CAD log from defense counsel until January 9, 2012, “well after the preliminary 

hearing.” Estrada’s counsel responded that a general request for discovery was made in 

April 2011 and was “inclusive of any information that is either evidence of guilt or 

innocence” in Estrada’s case. 

 Ultimately, the trial court “decline[d] to receive” the CAD log. The trial court 

found it was a document the defense should have obtained prior to the preliminary 

examination “[g]iven the length of time between the arraignment and the initial 

scheduling of the motion to suppress.”7

 Relying on the preliminary hearing transcript as 

the factual basis, the court denied Estrada’s renewed motion to suppress, finding “there 

was nothing that was done by the officer . . . to prolong the detention for the purposes of 

finding some evidence of criminal conduct.” Rather, “these were all reasonable steps 

taken in connection with the writing of the citation including the Terry[8] pat-down search 

. . . and while all of this was occurring the officer noted objective symptoms of . . . the 

use of narcotics.” 

 7

 While the trial court declined to receive the CAD log, it agreed that the log, 

marked as exhibit A, would be a part of the trial court record. The log was made a part of 

the record on appeal by way of augmentation. 

8 Terry v. Ohio (1968) 392 U.S. 1. 
8

B. Overview of Brady 

 The Due Process Clause of the federal Constitution requires that the prosecution 

disclose to the defendant information that is both material and exculpatory. (Brady,

supra, 373 U.S. at p. 87.) “There are three components of a true Brady violation: The 

evidence at issue must be favorable to the accused, either because it is exculpatory, or 

because it is impeaching; that evidence must have been suppressed by the State, either 

willfully or inadvertently; and prejudice must have ensued.” (Strickler v. Greene (1999) 

527 U.S. 263, 281-282.) The Brady rule “encompasses evidence ‘known only to police 

investigators and not to the prosecutor.’ [Citation.] In order to comply with Brady, 

therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known 

to the others acting on the government’s behalf in the case, including the police.’ ” (Id. at 

pp. 280-281.) 

 The People have a duty to disclose any favorable and material evidence even 

without a request by the accused. (Brady, supra, 373 U.S. at p. 87; In re Sassounian

(1995) 9 Cal.4th 535, 543.) Evidence is “ ‘favorable’ ” under Brady “if it either helps the 

defendant or hurts the prosecution, as by impeaching one of its witnesses.” (In re 

Sassounian, supra, at p. 544.) Evidence is material, where there is “a reasonable 

probability that, had the evidence been disclosed to the defense, the result of the 

proceeding would have been different. A ‘reasonable probability’ is a probability 

sufficient to undermine confidence in the outcome.” (United States v. Bagley (1985) 473 

U.S. 667, 682.) 

 On appeal, the defendant has the burden to establish the elements of a Brady

violation. (Strickler v. Greene, supra, 527 U.S. at pp. 289, 291.) A court reviewing a 

suspected Brady violation independently reviews the question of whether a Brady 

violation has occurred but gives “great weight to any trial court findings of fact that are 

supported by substantial evidence.” (People v. Letner (2010) 50 Cal.4th 99, 176.) 
9

C. The People’s disclosure obligations prior to the preliminary examination

 In their responding brief, the People cite United States v. Ruiz (2002) 536 U.S. 622 

(Ruiz), for the proposition that Brady does not require the production of impeachment 

evidence to the defense before the preliminary examination and hearing on the 

suppression motion. 

Ruiz is distinguishable, as it addressed the question of whether prosecutors were 

obligated to provide impeachment evidence to a defendant before entering into a plea 

agreement. (Ruiz, supra, 536 U.S. at p. 625.) In this case we are confronted with 

whether or not impeachment evidence should be turned over to a defendant prior to a 

preliminary examination and/or a hearing on a motion to suppress. 

 This distinction is important. “A defendant who has pleaded not guilty and will 

have a preliminary hearing occupies a vastly different position than one who is 

considering waiving his or her constitutional rights and admitting guilt pursuant to a 

preindictment plea offer.” (Bridgeforth v. Superior Court (2013) 214 Cal.App.4th 1074, 

1086 (Bridgeforth).) “Preliminary hearings . . . serve to protect both the liberty interest 

of the accused and the judicial system’s and society’s interest in fairness and the 

expeditious dismissal of groundless or unsupported charges, thereby avoiding a waste of 

scarce public resources. Requiring prosecutorial disclosure of information that is both 

favorable to the defense and material to the magistrate’s determination of ‘whether there 

exists probable cause to believe that the defendant has committed a felony’ ([Pen. Code,] 

§ 866, subd. (b)) provides a valuable additional safeguard for these extremely important 

interests.” (Id. at p. 1087.) 

 As Bridgeforth notes, however, the right to disclosure of information prior to the 

preliminary examination is not without limitation. Rather, “the precise scope of a 

defendant’s due process right to disclosure and the determination of whether that right 

has been violated are necessarily tailored to the context and purpose of the preliminary 

hearing. [Citations.] Accordingly, the standard of materiality is whether there is a 
10

reasonable probability that disclosure of the exculpatory or impeaching evidence would 

have altered the magistrate’s probable cause determination with respect to any charge or 

allegation.” (Bridgeforth, supra, 214 Cal.App.4th at p. 1087.) 

 The People also suggest that Estrada’s Brady claim must fail because the 

information regarding the length of the encounter was either already in Estrada’s 

possession (because Estrada likely had first-hand recollection of its duration) or was 

readily available to the defense had it acted with due diligence. We think these 

suggestions improperly place too much of a burden on the defense. It should not be 

incumbent on the defendant to take the witness stand in order to rebut a police officer’s 

testimony regarding the length of their encounter, especially when documentary evidence 

reflecting the length of that encounter is in the possession of the prosecutor or others 

acting on behalf of the prosecution in the case. 

D. The CAD log was not material and no prejudice resulted from its 

nondisclosure before the preliminary examination 

 In this case, we are not deciding if the CAD log would have directly called into 

question the magistrate’s probable cause determination. Instead, we are considering a 

prior, foundational question--namely whether the CAD log either shows an unduly 

prolonged detention on its face or if it sufficiently impeaches Forbus’ testimony on the 

duration of the encounter such that there is a reasonable probability the magistrate would 

have granted Estrada’s motion to suppress. If so, then the magistrate would necessarily 

have found no probable cause existed to hold Estrada on the charged offenses as there 

would be no admissible evidence of Estrada’s narcotics usage or possession of narcotics 

for sale. 

 Estrada argues that the CAD log establishes his detention was unduly prolonged 

since it shows he was detained for approximately 18 minutes rather than the five to 10 

minutes Forbus testified to at the preliminary examination. Since this 18-minute 

detention exceeded the time required to issue a citation for riding his bicycle the wrong 
11

way, it was illegal and the motion to suppress should have been granted. In support of 

this argument, Estrada relies principally on People v. McGaughran (1979) 25 Cal.3d 577 

(McGaughran). 

 In McGaughran, supra, 25 Cal.3d 577, the officer stopped the defendant for 

driving the wrong direction on a one-way street. (Id. at p. 581.) The initial detention 

lasted three to four minutes, during which time the officer questioned the defendant and 

examined his driver’s license. (Ibid.) The officer did not issue a citation, but returned to 

his patrol car and then radioed for a warrant check which took approximately 10 minutes 

to complete, revealing defendant’s outstanding burglary warrant. (Ibid.) On appeal from 

the denial of his motion to suppress and eventual conviction, the California Supreme 

Court ruled the defendant’s second detention to run the warrant check was unlawful and 

the resulting evidence should have been suppressed. (Id. at p. 586.) 

 This case is readily distinguishable from McGaughran. Estrada was initially 

detained because he was riding his bicycle the wrong way on a one-way street. Like the 

traffic violation in McGaughran, the infraction at issue was minor. However, unlike the 

defendant in McGaughran, Estrada was armed, a fact which necessarily prolonged the 

initial encounter with Forbus and his trainee officer. As Forbus secured the first knife 

and then conducted a pat search when Estrada began to reach for his second knife, he 

observed Estrada was sweating profusely, yet his hands were cold and clammy. It was at 

this point that Forbus suspected Estrada was under the influence of narcotics and he 

began questioning him to determine if there was some other explanation for these 

symptoms, questioning which further prolonged the initial detention. The evidence of 

Estrada’s narcotics usage was in plain sight, whereas the police officer in McGaughran

had no objective indication that the defendant had an outstanding warrant. 

 Furthermore, the CAD log’s utility as impeachment evidence is limited. Forbus 

testified at the preliminary examination that it took “between five and ten minutes” from 

when he noticed Estrada’s physiological symptoms to when he completed his section 
12

11550 evaluation. On cross-examination, Forbus said he did not “think we were out there 

for honestly more than ten minutes but I don’t know.” (Italics added.) According to the 

CAD log, approximately 18 minutes elapsed between the time Estrada is first stopped 

(14:33:06 on the log) and the point at which the log indicates he is detained for being 

under the influence (14:51:41 on the log). This discrepancy of eight or perhaps 10 

minutes is insufficient to establish a reasonable probability that the magistrate would 

have found the detention was unduly prolonged and therefore unlawful. Accordingly, we 

find no Brady violation under these circumstances. 

E. Penal Code section 4019 credits

 The trial court determined that Estrada was entitled to 147 days credit for time 

actually served. The trial court, however, failed to specify conduct credits, nor were 

conduct credits referenced in the probation report. Because Estrada committed his 

offenses in March 2011, he was entitled to two days of conduct credit for every six days 

spent in local presentence custody. (Pen. Code, § 4019; Stats. 2010, ch. 426, § 2, eff. 

Sept. 28, 2010.) The People concede this issue, and we agree the concession is 

appropriate. 

 Because Estrada received 147 days of custody credit, he was entitled to 72 days of 

conduct credit, for a total of 219 days credit. We will direct that the abstract of judgment 

be modified accordingly. 
13

III. DISPOSITION

 The abstract of judgment is modified to reflect that Estrada shall receive 

presentence credits of 147 days of custody credits plus 72 days of conduct credits for 

total presentence credits of 219 days. As modified, the judgment is affirmed. 

 

Premo, J. 

WE CONCUR: 

 

Rushing, P.J. 

 

Elia, J.