Filed 2/20/14 P. v. Estrada CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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 Estrad a was convicted by a jury of possession for sale of a controlled substance (Hea lth & Saf. Code, § 11351) 1 and being under the influence of a controlled substance (§ 11550, subd. (a)). He was sentenced to 36 months pr obation and 300 days in county jail on those charges. 2 On appeal, Estrada contends the ju dgment must be reversed because the prosecutor failed to turn over evidence prior to the prelimin ary hearing whic h would have supported his motion to suppress evidence and this failure amounts to a Brady 3 violation. Estrada also argues that the trial court incorrectly calculat ed his presentence credits, a position the People concede.

1 Further unspecified statut ory 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. Acco rdingly, we shall modify the judgment to award Estrada the additional credit claimed a nd, as modified, affirm the judgment. I. F ACTUAL AND P ROCEDURAL B ACKGROUND Estrada was charged by info rmation with possession of he roin 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 di rection on a one-way street. The officers turned their patrol car around and activated th eir lights to stop the bicycle. Estrada pulled into a nearby drivew ay and stopped. Forbus got out of the patr ol car and asked Estrada to sit down, informing him he was being detained for a Vehicle Code viol ation. Forbus recognized Estrada because three to six weeks earlier, Forbus had observe d 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 Es trada’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 cautione d him not to reach for it. Estrada complied and as Forbus was securing the knife, he as ked if Estrada had an y other weapons. Estrada said he had another knife in one of hi s pockets and started to reach for it. Forbus had Estrada put his hands behind his back, wh ere 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 seco nd knife in Estrada’s left fr ont pocket, but found no other weapons. Both knives were legal. Prior to the pat search, Fo rbus noticed Estrada’s face had been “scratched and picked.” Forbus suspected Estrada’s facial appearance was the result of heroin or3 methamphetamine use, which can cause the us er’s skin to itch, leading to repeated scratching. During the pat search, he obse rved additional signs of narcotics usage, specifically that Estrada was sweating profus ely 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 narco tic. 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 fo r these physiological symptoms. Forbus therefore detained Estrada pursuant to section 11550 to perform an under the influence evaluation. Estrada’s pupils reac ted only slightly or not at all when Forbus shined a flashlight in his eyes, and his pul se was high. Based on these observations, Forbus took Estrada into cust ody for being under the influenc e of a controlled substance. The officers emptied Estrada’s pockets, findi ng a coin purse, a cellular phone, and a notebook. At the police department, Estrada was advised of, and waived, his Miranda 4 rights. Forbus administered several physical tests and obtained a urine sample from Estrada, which tested positive for op iates, amphetamine, and THC (tetrahydrocannabinol). The physical tests also indicated that Estrada wa s under the influence of narcotics and Forbus observed track marks on Estrada’s arms. Base d on all these factors, Forbus concluded that Estrada abused multiple drugs and was cu rrently under the influence of opiates and amphetamines. Forbus searched Estrada’s belongings and inside the coin purse, he found 17 plastic Ziploc baggies containi ng what he believed to be hero in. 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 baggie s 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 sheet s” that contained different people’s names with a number assigned to ea ch name. These documents indicated to Forbus that Estrada was selling drugs and “keepi ng business records of the client base . . . .” After Forbus told Estrada he believed he was under th e influence of opiates and amphetamines, Estrada said he had used hero in about 9:30 that morning. He said he typically uses about 0.3 to 0.5 grams twic e a day. Estrada denied that the money recovered from his pers on 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 substan ce found in three of the Ziploc baggies 5 and determined that it was he roin with a net weight of 1.03 grams. On November 22, 2011, wh ile 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. Af ter Estrada was advised of his Miranda rights, he admitted that th e substance was heroin. Santa Cruz Police Officer Bill Azua testif ied 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, in cluding the spade design on some of the baggies that identified the type of heroin inside, and the consis tency of weight in each of the baggies. In addition, the pay-owe shee ts in Estrada’s note book contained numbers

5 The criminalist selected two of the sma ller 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 pers on, in case they are robbed. He also found it significant that Estrada had two knives , believing one was conc ealed “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 obje ct in Estrada’s anal cavity which he asked Estrada to remove. Estrada did so and dropped a roun d 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 wo rk 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 probatio n and 300 days in county ja il 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 c ontrolled substance in a jail facility ( id ., § 4573.6), in exch ange for 36 months probation and 180 days jail time that could be completed in an outpatie nt residential treatment program. 6

6 Estrada also pleaded no contest to a tr ailing charge (Sup. Ct. Santa Cruz County No. M60504) of petty theft in exchange fo r a one day concurrent jail sentence. In accordance with the plea agreemen t, the trial court granted th e People’s motion to dismiss an additional misdemeanor coun t in case No. M60504 as we ll as a second trailing case (Sup. Ct. Santa Cruz County No . M63526) in its entirety in th e interests of justice.6 II. D ISCUSSION Estrada raises two issues on ap peal: (1) the People committed a Brady violation by failing to turn over a CAD (computer aide d dispatch) log which would have shown his initial detention was unduly pr olonged and the subs equent arrest and search were thus unlawful; and (2) the trial court failed to aw ard 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 pr olonged 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 infiel d evaluation of Estrada after noticing the symptoms that he was under the influenc e 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, th e trial court denied it, stating “I don’t believe based on everything I heard from Offi cer 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 dispat ch that prolonged anything here.” Prior to trial, Estrada filed a renewed motion to suppress evidence, again arguing his detention was unduly prolonged. At th e hearing on the moti on, Estrada’s counsel moved to introduce into evidence a “CAD log of the radio traffic that transpired during the detention.” Defense counsel had not receiv ed this log until a week and a half prior to7 the hearing on the renewed motion and argued it “certainly would have been germane” to the initial motion to suppress had it been discove red prior to the hearing on that motion. Estrada’s counsel argued the log demonstr ated “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 undul y 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 a ll 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 Pe ople had not received a specific request for the CAD log from defense counsel until Janua ry 9, 2012, “well af ter 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 ha ve 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 prelimin ary 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 detentio n for the purposes of finding some evidence of criminal conduct.” Rather, “these were all reasonable steps taken in connection with the writi ng of the citation including the Terry [8] pat-down search . . . and while all of this was occurring the o fficer noted objective sy mptoms of . . . the use of narcotics.”

7 While the trial court declined to receiv e the CAD log, it agreed that the log, marked as exhibit A, would be a part of the tr ial 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 in formation 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 favor able to the accused, either be cause it is exculpatory, or because it is impeaching; that evidence must have been su ppressed by the State, either willfully or inadvertently; and pr ejudice must have ensued.” ( Strickler v

. Greene (1999) 527 U.S. 263, 281-282.) The Brady rule “encompasses eviden ce ‘known only to police investigators and not to th e 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 gove rnment’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.) Evid ence 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 mate rial, where there is “a reasonable probability that, had the eviden ce been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confid ence in the outcome.” ( United States v

. Bagley (1985) 473 U.S. 667, 682.) On appeal, the defendan t has the burden to esta blish 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 review s 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 pr oduction of impeachment evidence to the defense before the pre liminary 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 ev idence should be turned ove r to a defendant prior to a preliminary examination and/or a he aring on a motion to suppress. This distinction is important. “A de fendant who has pleade d not guilty and will have a preliminary hearing occupies a va stly different positi on than one who is considering waiving his or her constituti onal 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 a nd society’s interest in fairness and the expeditious dismissal of groundless or unsuppo rted 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 de fendant has committed a felony’ ([Pen. Code,] § 866, subd. (b)) provides a va luable additional safeguard fo r these extremely important interests.” ( Id. at p. 1087.) As Bridgeforth notes, however, the right to disclo sure of informa tion prior to the preliminary examination is not without limita tion. Rather, “the precise scope of a defendant’s due process right to disclosure and the determination of whether that right has been violated are necessar ily tailored to the context a nd purpose of the preliminary hearing. [Citations.] Accordingly, the stan dard of materiality is whether there is a10 reasonable probability that disc losure of the exculpatory or impeaching evidence would have altered the magistrate’s probable cause de termination with respec t 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 en counter was either already in Estrada’s possession (because Estrada likel y had first-hand recollecti on of its duration) or was readily available to the defense had it act ed 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 ta ke the witness stand in orde r to rebut a police officer’s testimony regarding the length of their encoun ter, 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 th e CAD log would have directly called into question the magistrate’s probable cause determ ination. Instead, we are considering a prior, foundational question--namely whethe r the CAD log either shows an unduly prolonged detention on its face or if it su fficiently impeaches Fo rbus’ testimony on the duration of the encounter such that there is a reasonable pr obability the magistrate would have granted Estrada’s motion to suppress. If so, then the magistra te would necessarily have found no probable cause existed to hold Estrada on th e charged offenses as there would be no admissible evidence of Estrada’s narcotics usag e or possession of narcotics for sale. Estrada argues that the CAD log estab lishes his detention was unduly prolonged since it shows he was detained for approximat ely 18 minutes rather than the five to 10 minutes Forbus testified to at the prelim inary examination. Since this 18-minute detention exceeded the time required to issue a citation for riding his bicycle the wrong11 way, it was illegal and the motion to suppress sh ould have been grante d. 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 ev entual conviction, th e 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 th e wrong way on a one-wa y street. Like the traffic violation in McGaughran , the infraction at issue wa s 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 Estrad a began to reach for his second knife, he observed Estrada was sweating prof usely, yet his hands were cold and clammy. It was at this point that Forbus susp ected Estrada was under the in fluence of narcotics and he began questioning him to determine if th ere was some other explanation for these symptoms, questioning which further prolonged the initial detention. The evidence of Estrada’s narcotics usage was in plai n sight, whereas the police officer in McGaughran had no objective indication that the defe ndant had an outstanding warrant. Furthermore, the CAD log’s utility as im peachment evidence is limited. Forbus testified at the preliminary examination that it took “between five and ten minutes” from when he noticed Estrada’s physiological sy mptoms to when he completed his section12 11550 evaluation. On cross-examination, For bus said he did not “t hink 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 discrepa ncy of eight or perhaps 10 minutes is insufficient to establish a reas onable 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 Estrad a 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. Be cause Estrada committed his offenses in March 2011, he was entitled to tw o days of conduct cred it for every six days spent in local presentence cu stody. (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 cust ody 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. D ISPOSITION 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.