California Court of Appeals, First District, Fourth Division
County Nos. CR1500625 & CR15003328 Superior Court Hon.
John T. Feeney Judge
Counsel for Appellant: Roberta Simon, by appointment of the
Court of Appeal under the First District Appellate Project
Independent Case System
Counsel for Respondent: Kamala D. Harris Attorney General of
California Gerald A. Engler Chief Assistant Attorney General,
Jeffrey M. Laurence Senior Assistant Attorney General, Eric
D. Share Supervising Deputy Attorney General, Ronald E. Niver
Deputy Attorney General
RUVOLO, P. J.
Arnold Parrott (appellant) appeals the judgment sentencing
him to five years in state prison following his guilty plea
to two charges of being a felon in possession of a firearm
(Pen. Code, § 29800, subd. (a)), and his admission to
two sentencing enhancements. The plea was part of a
negotiated disposition of two pending criminal cases filed
against him by the Humboldt County District Attorney. On
appeal, appellant contends the trial court erred in denying
his motion to suppress evidence on the ground that his Fourth
Amendment rights were violated by an unlawful search and
seizure resulting in the discovery of one of the firearms. We
disagree, and affirm that ruling.
also contends he was deprived of his Sixth Amendment right to
counsel at sentencing, requiring this case to be remanded to
the trial court for resentencing. While we agree the record
does not establish appellant properly waived his right to
counsel and unequivocally invoked his right to
self-representation under Faretta,  we conclude
the error was harmless beyond a reasonable doubt. Therefore,
we affirm the trial court's judgment.
AND PROCEDURAL BACKGROUNDS
February 9, 2015,  at approximately 8:29 p.m., two police
officers were driving southbound on Pine Street in Eureka,
California. As the officers approached the intersection of
Pine Street and Wabash Avenue, they observed a small purple
hatchback vehicle without illuminated rear or brake lights,
rolling backwards toward the intersection. Not knowing if
there was a driver in the vehicle, the officers positioned
their patrol car behind the hatchback vehicle to keep it from
rolling further down the street. Seconds later the vehicle
came to a stop, appellant exited from the driver's side
of the vehicle and proceeded to push it to a nearby curb.
Harkness exited his patrol car and contacted appellant as he
began to lift the hood of his vehicle. The officer asked if
he could assist appellant with his disabled vehicle, offering
a tow truck or a ride to someone who could repair the car,
but appellant replied “that he didn't really need
any assistance.” Appellant was wearing a hooded
sweatshirt, with a visibly heavy item bulging from the front
pocket. As the interaction progressed, the officer noticed
appellant appeared nervous and continued to touch the bulging
item in the front pocket of his sweatshirt.
Officer Harkness asked appellant to step out of the roadway
and onto the sidewalk. When on the sidewalk, Harkness asked
for appellant's name and date of birth. Appellant
provided the information, nervously adding that he was not on
probation or parole. The officers then reported
appellant's name to dispatch. Appellant continued to
appear nervous, answering questions rapidly and continuously,
while looking from one officer to the other in “really
quick, targety glances.” At one point, Harkness asked
appellant to refrain from reaching into the front pocket of
his sweatshirt, fearing it might contain a weapon. Appellant
also asked the officers if he could smoke a cigarette, and
Harkness responded by stating “there was no reason that
he couldn't smoke a cigarette.”
few minutes, dispatch informed the officers that
appellant's license was suspended. After learning of
appellant's suspended license, Officer Harkness
“took hold of” appellant's right arm and told
him to put his hands behind his back. When appellant
resisted, the officers took a firm grip on him to prevent him
from moving or reaching into his front pocket. Appellant was
once again told to place his hands behind his back. After
appellant refused to cooperate a second time, the officers
subdued him, placed him on his stomach and handcuffed him.
Officer Soltow patsearched appellant, felt what he believed
to be a gun, and reached into appellant's front
sweatshirt pocket, finding a loaded handgun.
appellant waived a preliminary hearing in Case No. CR1500625,
the Humboldt County District Attorney filed an information on
February 27, 2015, charging appellant with possession of a
firearm by a felon (Pen. Code, § 29800, subd. (a); count
one) and driving without a valid driver's license (Veh.
Code, § 12500, subd. (a); count two.) In connection with
count one, the information also alleged a prior strike (Pen.
Code, § 667, subds. (b)-(i)), and a prior prison term
(Pen. Code, § 667.5).
discuss more fully below, on May 26, appellant filed a motion
to suppress evidence (Pen. Code § 1538.5). On July 1,
the trial court denied that motion.
17, a Eureka police officer contacted appellant, who was
sitting in a vehicle located in the parking lot of a local
mall. After discovering that appellant had an outstanding
warrant, the officer arrested appellant, subsequently
searched the area within appellant's control, and found a
loaded firearm under the driver's seat.
appellant waived a preliminary hearing in Case No. CR1503328,
the Humboldt County District Attorney filed an information on
August 12, charging appellant with possession of a firearm by
a felon (Pen. Code, § 29800, subd. (a); count one) and
possession of ammunition (Pen. Code, § 30305, subd.
(a)(1); count two). In connection with both counts, the
information also alleged appellant was on bail during the
commission of the offenses (Pen. Code, § 12022.1), and
had a prior strike (Pen. Code. § 667, subds. (b)-(i))
and a prior prison term (Pen. Code, § 667.5).
September 9, the two informations were consolidated for trial
Change of Plea Hearing
September 14, pursuant to a negotiated disposition, appellant
pled guilty to count one in Case No. CR1500625, count one in
Case No. CR1503328, and admitted to one strike prior and one
prison prior. In return for the plea, it was agreed that
appellant would be sentenced to five years in state prison
calculated as follows: The mid-term of two years for count
one in Case No. CR1500625, doubled for the admitted prior
strike and one additional year based on the admitted prior
prison term. A two-year term would also be imposed to run
concurrent based on the guilty plea to count one in Case No.
CR1503328. All other counts and enhancements were to be
dismissed by the prosecution. After admonishments to and
waivers by appellant, the court approved the change of plea,
and the remaining counts were dismissed. Appellant was
represented at the change of plea hearing by attorney Michael
P. Acosta, who had been retained by appellant as of April 9.
time of appellant's October 7 sentencing hearing, Mr.
Acosta could not be located in or around the courthouse and
could not be reached by telephone. The trial court then
stated, “Mr. Parrott, I just had the clerk provide you
with a copy of the probation report that was received on
October 1st, 2015. If you would like to have a day or two to
review that, you certainly may have that. You're entitled
to that. Or-, ” to which appellant replied, “He
can be my lawyer at this point. Let's just go.” The
court responded, “Okay. If you would like to at this
point, essentially, represent yourself ...