IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
October 31, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
NOE SANCHEZ-ESCEVERRE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F7983)
The opinion of the court was delivered by: Hoch , J.
P. v. Sanchez-Esceverre
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Noe Sanchez-Esceverre entered a plea of no contest to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted a prior drug-conviction allegation (Health & Saf. Code, § 11370.2, subd. (a)) in exchange for a stipulated six-year prison term. The court sentenced defendant accordingly.
Defendant appeals. He obtained a certificate of probable cause (Pen. Code, § 1237.5). Defendant's sole contention is that the trial court abused its discretion in denying his discriminatory-prosecution discovery motion. We reject defendant's contention and affirm the judgment.
On October 16, 2009, Sheriff's Deputy Pat Kropholler observed defendant driving nine miles over the posted speed limit northbound on Interstate Highway 5 (I-5), north of Redding. Defendant abruptly changed lanes without signaling and weaved back and forth in his lane. The officer also observed that defendant's car had a cracked windshield. The officer made a traffic stop. Defendant was nervous and his hands were shaking. He gave a false name. He had an international driver's license and claimed he left paperwork for his state license at home. The officer saw a single key in the ignition. When asked for the vehicle's registration and insurance, defendant had difficulty finding the paperwork but finally found a stack of papers which he handed to the officer. The name on the registration was Ricardo Azevedo and on the insurance papers was Chad Lutan. Defendant said the car did not belong to him and he did not know the owner's name. He subsequently said he could not pronounce the owner's name in either Spanish or English. Defendant grabbed an envelope out of the stack of papers which had Lutan's name, looked at the name, and then said the owner was Chad. A narcotics-sniffing dog alerted twice when it walked around the car and alerted again inside the car. A search of the car revealed packages covered with grease and black pepper, both used as masking agents. The packages contained 3.2 pounds of methamphetamine.
Defendant contends the trial court erroneously denied his discriminatory-prosecution discovery motion brought under Murgia v. Municipal Court (1975) 15 Cal.3d 286 (Murgia).*fn1 Defendant argues that the statistical evidence he submitted to the trial court constituted "some evidence" of discriminatory effect and intent. We reject his contention.
The officers who stopped defendant's vehicle were assigned to a Domestic Highway Enforcement (DHE) unit of Northstate Initiative California Multi-Jurisdictional Methamphetamine Enforcement Team (NSI Cal-MMET (unit)). Defendant filed a motion for discovery of information "material to the defense of discriminatory prosecution in this case." Defendant claimed that "members of the Shasta County Sheriff's Office (SCSO) are acting in an impermissibly discriminatory manner in that they are enforcing the traffic laws of the State of California against certain minorities, largely Hispanics, while similarly situated Whites are not being singled out for prosecution and/or the same officers are initiating traffic stops of a suspect class of people without probable cause." Defendant sought discovery of numerous items, including copies of traffic citations, DVDs of traffic stops, investigative reports, information about the MMET/DHE program, training materials, policies and procedures for domestic highway operations, memoranda of understanding between law enforcement agencies, and assignments and job duties of law enforcement personnel.
In its response, the People stated that the unit is "specially trained to do highway interdiction" and that the officers monitor I-5, north of Redding, "stopping vehicles for traffic violations and looking for indicators of drug smuggling." In their declarations in support of the People's response, Officer Kropholler and Officer Christopher McQuillan, both assigned to NSI Cal-MMET, described their involvement with the unit, its inception and how it functioned. Based on a United States Justice Department 2009 Drug Market Analysis, attached to the People's response, "[I-5] is routinely exploited by drug traffickers to provide direct access to drug sources located in other areas of California as well as in Mexico and Canada" and in the Central Valley High Intensity Drug Trafficking Area (HIDTA), in which Shasta County is included, the trafficking and abuse of methamphetamine, primarily ice methamphetamine, pose the most significant drug threats. The analysis also stated that Mexican drug trafficking organizations (DTOs) are the primary producers, transporters, and distributors of illicit drugs. "Mexican DTO's also represent the primary organizational threat with regard to cannabis cultivation and marijuana production operations in the Central Valley HIDTA region."
Defendant asserted that the unit reports reflected investigations which all started with traffic stops for similar Vehicle Code violations; violations could only be substantiated by observations by the officers; all reports listed drug smuggling "'indicators'" which raised the officer's suspicions; after the stop, other officers arrived, including the drug-sniffing dog; and the suspect was asked about travel plans and eventually for consent to search the vehicle.
Defendant presented statistical evidence. Based on 78 unit reports dated May 2007 through February 2010, 73 percent of the drivers were Hispanic. Defendant presented United States Census Bureau data which showed that Hispanics constituted 36.6 percent of California's population, but only 8 percent of Shasta County's population, 9.8 percent of the state of Washington's population and 11 percent of Oregon's population. Defendant presented statistical evidence of 2008 and 2009 arrests and citations by Redding area CHP, Shasta County Sheriff's Office, Redding Police Department, Anderson Police Department, and the Shasta County Inter Agency Narcotics Task Force. Defendant calculated that Hispanics represented 6.6 percent of the total arrests made by the Shasta County Sheriff's Office in 2008 and 6.9 percent in 2009 and that Hispanics represented 4.9 percent of all arrests made and citations issued by the Redding Police Department in 2009, and 6.1 percent in 2008. In reply to the People's response, defendant presented a chart that purported to be a statistical breakdown of the warning citations issued along I-5 by the unit showing that 80 percent of the Hispanic males were searched while only 44 percent of the White males were searched.
The People argued that defendant failed to demonstrate that similarly situated non-Hispanic persons were not stopped or prosecuted. The People represented that based on traffic and warning citations issued by the unit from January 2009 through May 2010, 43.49 percent were White, 44.27 percent were Hispanic, 4.69 percent were African-American, and 4.43 percent were Asian. The People claimed such statistics were "not distinctively different from the overall California population demographics as shown in [d]efendant's motion." The People included the declarations of Officers McQuillan and Kropholler who both stated that they have never used race as a reason to conduct an enforcement stop of a vehicle and the declarations of the deputy district attorneys assigned to prosecute the unit cases who stated they had never filed a case or declined to file a case based on race.
Trial Court's Ruling
In denying defendant's motion, the trial court applied the test articulated by the Supreme Court in United States v. Armstrong (1996) 517 U.S. 456 [134 L.Ed.2d 687] (Armstrong) that in order to succeed on a discriminatory-prosecution discovery motion, a defendant must produce "some evidence" that there was a prosecution policy that "'had a discriminatory effect and that it was motivated by a discriminatory purpose.'" (Armstrong, supra, 517 U.S. at p. 465, 468-469 [134 L.Ed.2d at p. 701].) Here, the trial court found that defendant had failed to meet his burden of producing "some evidence" of discriminatory effect and discriminatory intent as required by Armstrong. The trial court rejected defendant's statistical argument, stating: "They argue that because the defendants arrested in these cases were all Hispanic, therefore some evidence exists to support the requested discovery. The problem with this is two fold. First, no statistics are provided to show that non-Hispanic persons are not being pursued. In fact, the People have provided statistics to the contrary. The officers involved in the cases before this court are funded by a grant to a five county task force designated as [NSI Cal-MMET]. People's exhibit 'E' shows that Hispanic drivers make up 44.27% of the total number of drivers stopped by the Cal-MMET officers. This is not at great variance with the percentage of Hispanic's in the general California population (36.6%). (See Exhibit L-1, attached to defendants' motion). In addition, much like the study referred to in Armstrong, supra, the People have provided as exhibit 'G' to their opposition, The Central Valley California High Intensity Drug Trafficking Area Drug Market Analysis 2009, prepared by the United States Department of Justice, National Drug Intelligence Center. This study reveals the vast majority of drug trafficking on the area in question here is controlled by drug trafficking organizations with ties to Mexico."
The court reviewed the items of evidence in support of the motion. With respect to the reports generated by the unit officers and defendant's observation that similar reasons are offered for the stops, the trial court stated: "These observations connote nothing. It is not unusual for law enforcement officers to use techniques that prove successful in repeated, similar investigations. In addition, because it is safe to assume that some traffic violations occur more frequently than other violations, there is nothing unusual about the officers giving similar reasons for the various traffic stops."
With respect to defendant's observation that 73 percent of the reports involved Hispanic drivers, the trial court stated: "Because a contact without an arrest is not likely to result in a police report being written, one would expect that reports documenting arrests would mirror the characteristics of the targeted offenses" and "it appears the I-5 drug trade is predominantly controlled by Mexican drug trafficking operations," so "it would not be unexpected that most of the contacts that result in arrests and reports would involve Hispanic individuals."
With respect to defendant's argument regarding the statistical racial makeup of offenders arrested by local law enforcement agencies in Shasta County, the court determined the People had credibly asserted "that the racial makeup of travelers on [I-5] are more likely to be consistent with the overall population of the state than they are with the population of Shasta County, whose racial makeup is quite different than the rest of the state."
The trial court considered and rejected defendant's other arguments as deficient. The trial court found the report of the defense investigator to be deficient because his documentation of a limited number of traffic stops was also limited to just a few days and "not fairly representative of the traffic stops made by the agents."
The trial court found the statistics regarding the racial makeup of arrestees by local agencies to be deficient because they "cannot be readily compared" since the unit stops are limited in number, occur only on I-5, and the unit responds to reports from other agencies that observe drug trafficking.
The trial court found no probative value to the fact that CHP terminated its participation in the program.
The trial court rejected defendant's analysis of various police reports and hearing transcripts in support of his claim that the officers fabricated the reasons for a traffic stop and search of a Hispanic driver, finding no evidentiary basis.
The trial court found the declarations of four Hispanics and one Filipino driver deficient to show non-Hispanics are treated differently.
The trial court concluded: "Putting together all the deficient evidence offered in support of this motion does not result in the evidence rising to the level of some evidence that similarly situated non-Hispanic drivers are treated differently than Hispanic drivers. The evidence of the questioned treatment of the designated class does not demonstrate the absence of such treatment towards those outside the class. This remains the fundamental flaw in all the evidence proffered in support of the motion. [¶] Based upon 2009 and 2010 studies referred to in the People's opposition, one would expect that even if vehicles were being stopped precisely according to the racial ratio of the appropriate census pool, a disproportionate number of Hispanics still would be found to be transporting drugs and arrested. Similar to the circumstances addressed in Armstrong, supra, and the study discussed in that case, this result is expected because of the disproportionate share of interstate drug trafficking attributed to the designated class. Even if [it is] true that the majority of arrests for transportation of controlled substances made on I-5 arise from traffic stops of Hispanic drivers, such does not lead to a conclusion that they are being unfairly targeted. It simply corroborates the findings of the 2009 and 2010 studies referred to by the People and cited above."
Defendant contends that the trial court erred in denying his motion. We disagree.
The People's discretion to prosecute and what to charge is constrained by, among other principles, "the equal protection component of the Due Process Clause of the Fifth Amendment." (Armstrong, supra, 517 U.S. at p. 464 [l34 L.Ed.2d at 698]; People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177, 1188 (Baez); Baluyut v. Superior Court (1996) 12 Cal.4th 826, 831-832 (Baluyut).) "The defect lies in the denial of equal protection to persons who are singled out for a prosecution that is 'deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' [Citation.] [¶] Unequal treatment which results simply from laxity of enforcement or which reflects a non-arbitrary basis for selective enforcement of a statute does not deny equal protection and is not constitutionally prohibited discriminatory enforcement. [Citations.]'" (Baluyut, supra, 12 Cal.4th at pp. 831-832.)
Under the Armstrong standard, to succeed on a discriminatory-prosecution discovery motion, a defendant must produce "some evidence" that there was a prosecution policy that "'had a discriminatory effect and that it was motivated by a discriminatory purpose.'" (Armstrong, supra, 517 U.S. at p. 465, 468-469 [134 L.Ed.2d at p. 701]; Baez, supra, 79 Cal.App.4th at pp. 1189-1190; Pen. Code, § 1054, subd. (e).) In other words, a defendant must make a "credible showing of different treatment of similarly situated persons." (Armstrong, supra, 517 U.S. at p. 470 [134 L.Ed.2d at p. 702].) "The defendant may satisfy the 'credible showing' requirement by identifying a similarly-situated individual or through the use of statistical evidence." (United States v. James (10th Cir. 2001) 257 F.3d 1173, 1179; Armstrong, supra, 517 U.S. at p. 470 ["study failed to identify individuals who were not black and could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted"].) We review a trial court's denial of the motion for abuse of discretion. (Baez, supra, 79 Cal.App.4th at pp. 1185-1186.)
Defendant recognizes that he was required to show that similarly situated non-Hispanic drivers were not being stopped, detained and searched by unit officers, and argues he did just that. Noting that 73 percent of the drivers involved in the unit reports examined by the public defender's office were Hispanic, and thus 27 percent were non-Hispanics, he argues, "The fact that the percentage of non-Hispanics involved in the 78 reports was so low relative to the percentage of non-Hispanics in the general population is 'some evidence' that non-Hispanic motorists were not being stopped, detained, and searched." Because non-Hispanics make up 92 percent of the population of Shasta County and 63.4 percent of the population of California, he asserts "one would expect to see a much higher percentage of non-Hispanics stopped, detained, and searched than just 27%." We reject defendant's claim as did the trial court.
The People's evidence reflects that the I-5 methamphetamine drug trade is predominantly controlled by Mexican DTOs. Apparently, a unit report is prepared when there is an arrest. The unit reports do not constitute some evidence that similarly situated defendants of other races were not arrested. Defendant's statistical evidence did not demonstrate that persons observed by unit officers violating traffic laws on I-5 and later found to have illegal drugs in their possession were not prosecuted because of their race. Unit officers and prosecutors declared that they had never based their actions or charging decisions on race and their declarations were properly considered in response to defendant's discriminatory-prosecution claim. (See Murgia, supra, 15 Cal.3d at pp. 292-293; Baez, supra, 79 Cal.App.4th at p. 1191; People v. Williams (1996) 46 Cal.App.4th 1767, 1774-1775, 1776.) We reject defendant's speculation that drug traffickers drive "more carefully than the average motorist" to avoid a traffic stop and search.
Defendant takes issue with the trial court's reasoning related to the statistics of the racial make-up of all motorists stopped for traffic violations along the relevant stretch of I-5. The traffic and warning citations, separate from the unit reports, established that approximately 44 percent of motorists stopped on I-5 by the unit were Hispanic. The trial judge found the relevant statistic was the number of Hispanics in California (36.6 percent in the general population), not the percentage of Hispanics in Shasta County. Defendant argues that the trial judge's use of this statistic was erroneous "because the percentage of Hispanic drivers using [I-5] in Shasta County is probably far less than 36.6% given that Shasta County is only 8% Hispanic. Most likely, the actual figure is somewhere in between." (Italics added.)
Neither the general population statistic nor the Shasta County population statistic shows the population driving on I-5, let alone the relevant stretch of I-5 where these traffic stops occurred. Defendant and the People did not present any evidence of the racial makeup of all motorists on California highways. (See Chavez v. Ill. State Police (7th Cir. 2001) 251 F.3d 612, 643-645 [population benchmarks, i.e., 1990 census and transportation survey, were "insufficient to determine the racial makeup of motorists on Illinois highways" and "without reliable data on whom Valkyrie officers stop, detain, and search, and without reliable data indicating the population on the highways where motorists are stopped, detained, and searched, we cannot find that the statistics prove that the Valkyrie officers' actions had a discriminatory effect on the plaintiffs"].)
Defendant argues that the trial court's "myopic focus on the state's population of Hispanics . . . ignores the fact that a disproportionate number of Hispanics were searched following the initial traffic stop." Defendant claims "the fact that 36.6% of the population in California is Hispanic does not explain why 80% of the male Hispanic drivers that were stopped were subsequently searched while only 44% of the male Caucasian drivers were subsequently searched." He asserts that this statistic is "some evidence" of discriminatory intent and effect.
The statistical evidence that defendant presented shows a disparity but it is not some evidence that similarly situated persons are treated differently. Defendant's search statistics do not demonstrate that similarly situated persons of other races are not being searched. That people trafficking illegal drugs show "indicators" that raise an officer's suspicions leading to a search or request to search a vehicle is not "some evidence" nor is the fact that Hispanic drivers more often consented to a search than White drivers. Because defendant's showing of a discriminatory effect was inadequate, we need not discuss the other prong, discriminatory purpose. The trial court properly denied defendant's discovery motion.
The judgment is affirmed.
We concur: RAYE , P. J. NICHOLSON , J.