Opinion
F075162
12-18-2018
THE PEOPLE, Plaintiff and Respondent, v. TYRELL COLLINS, Defendant and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF164089A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Tyrell Collins appeals following his convictions for carrying a concealed, unregistered firearm (Pen. Code, § 25400, subd. (c)(6) [count 1]); carrying a loaded firearm without registration (§ 25850, subd. (c)(6) [count 3]); and driving with a suspended or revoked license (Veh. Code, § 14601.5, subd. (a) [count 4]). Appellant contends the trial court wrongly denied his motion to suppress evidence obtained during a search of his vehicle and incorrectly excluded documentary evidence from his trial demonstrating he was using his cell phone at the time of the relevant traffic stop. He contends these errors require reversing his convictions on counts 1 and 3. For the reasons set forth below, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant was initially charged with five counts. Counts 2 and 5 were set aside or dismissed. Appellant does not appeal his conviction on count 4.
FACTUAL AND PROCEDURAL BACKGROUND
As appellant's main contentions arise from the denial of his suppression motion, we recount the general facts of his offense as they were detailed at that hearing.
On April 28, 2016, Bakersfield Police Department Officers Jacqueline Hernandez and Renee Garcia were in their patrol car traveling along Belle Terrace in Kern County, a high crime area where officers have done many stops for narcotics offenses. Around 4:00 p.m. they passed a silver Impala with improperly tinted windows. They noticed appellant, the driver, was not wearing his seatbelt. As the two cars passed, the officers watched appellant roll down the tinted windows and attempt to put on his seatbelt. Recognizing these infractions, the officers initiated a traffic stop at approximately 4:09 p.m.
Officer Garcia approached the vehicle from the driver side and requested appellant's license, registration, and insurance. Appellant provided all but his license and Officer Garcia returned to the police car to conduct a records check. During this time, Officer Hernandez approached the vehicle from the passenger side. She had a clear view into the car. As Officer Garcia left with appellant's documents, Officer Hernandez observed appellant watch Officer Garcia depart and then reach down into an area between the center console of the vehicle and the floorboards. Officer Hernandez testified appellant manipulated some object in that space. She, at that time, suspected there was illegal contraband hidden in the space. On cross-examination, Officer Hernandez stated appellant had nothing in his hands prior to reaching below the center console, that it was possible a person could drop an item into that space, and that there was nothing illegal about appellant reaching below the center console during the traffic stop.
Following the records check, Officer Garcia learned appellant was driving on a suspended license and had two outstanding misdemeanor warrants for prior traffic offenses. Officer Garcia returned to the vehicle, ordered appellant to exit the vehicle, and placed appellant under arrest. At some point in the process, Officer Hernandez told Officer Garcia how she had seen appellant act. Appellant was then placed in the back of the police vehicle.
After completing the arrest, the officers decided to tow appellant's vehicle and conducted an inventory search of the vehicle. Officer Hernandez explained the basis for seeking to search the vehicle in two different exchanges. First, when asked by the prosecutor why she ultimately searched the vehicle, Officer Hernandez responded: "For two reasons. Like I explained in my report, that area's known for having high-crime and narcotics use. When I saw him reaching down into that area, it's—I noticed it's not an area where people normally would place things. And I suspect that there was illegal contraband in there. The second reason is he was under arrest. And I had to do an inventory search of the vehicle." Upon cross-examination, Officer Hernandez further explained the vehicle "was searched incident—or because of an inventory search. Prior to getting vehicles towed, we have to do an inventory search. I also felt that it was suspicious that he was reaching into an area that is not normally used." No further testimony was elicited as to the location of the car at the time of the stop or as to the reasoning the officers undertook in deciding to tow the car and trigger the inventory search.
Officer Hernandez began the subsequent search by investigating the area under the center console. There, Officer Hernandez located a loaded revolver. As noted, appellant sought to suppress evidence resulting from the traffic stop, including but not limited to the discovery of the gun, pursuant to section 1538.5. The trial court denied this motion, finding the initial stop was legitimate, suggesting Officer Hernandez may have had probable cause to believe criminal activity was occurring, concluding the police had enough justification to arrest appellant and do an inventory search, and stating "it doesn't appear to the Court that there was any evidence, based upon the totality of the circumstances presented by the witnesses, that the stop was—or search was pretextual in any way."
Appellant was eventually tried on charges of carrying a concealed and loaded weapon, as well as driving on a suspended license. As part of his defense, centered on the claim he did not know the gun was in the car, appellant sought to prove what Officer Hernandez witnessed him doing in the car was not manipulating the gun, but using his cell phone to inform people he had been stopped. As part of this strategy, appellant sought to introduce phone records purportedly showing he had incoming phone activity at 4:10 p.m. and outgoing phone activity at 4:11 p.m. The prosecution objected, in part, on the ground that the phone records showed times different from those asserted, and thus would be confusing to the jury. Appellant's counsel explained the times were in the UTC time zone and requested the court take judicial notice of the proper conversion from UTC to PST. The court rejected this request and ruled appellant could not enter the phone records unless a witness was called who could explain the UTC time zone issue. Appellant and another witness he called in his defense both testified to calling or sending messages to each other about the traffic stop while it was occurring.
A jury ultimately convicted appellant of the charged offenses. Appellant was sentenced to a two-year, split-term, total sentence. This appeal timely followed.
DISCUSSION
Appellant raises two complaints. First, appellant claims the trial court erred in denying his suppression motion because the warrantless search of his vehicle was not justified as an inventory search or based upon probable cause. Second, appellant argues the trial court wrongly excluded evidence in the form of cellphone records that would demonstrate he was using his phone at the time Officer Hernandez claimed he was reaching for something under the center console. Search of Appellant's Vehicle
We begin by considering appellant's challenges to the search of his vehicle. Appellant challenges the inventory search of his vehicle on two grounds. First, that the police lack sufficient written procedures to authorize such searches. Second, that the police were improperly utilizing an inventory search in this instance. Appellant contends, on these grounds, that the trial court wrongly denied his suppression motion.
Standard of Review and Applicable Law
" '[I]t is settled that in ruling on a motion [to suppress] under section 1538.5 the superior court sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences, and hence that on review of its ruling by appeal or writ all presumptions are drawn in favor of the factual determinations of the superior court and the appellate court must uphold the superior court's express or implied findings if they are supported by substantial evidence.' [Citation.] The reviewing court then independently reviews the superior court's determination that no Fourth Amendment violation occurred in conducting the search. [Citations.] If the search or seizure violated the Fourth Amendment, then the evidence seized as a result of that search must be excluded." (People v. Needham (2000) 79 Cal.App.4th 260, 265 (Needham).)
Under well-established Fourth Amendment jurisprudence, a warrant is required before a government official can conduct a search or seizure unless a recognized exception to this rule is demonstrated. (See People v. Williams (1999) 20 Cal.4th 119, 125-126 (Williams I).) One of the recognized exceptions to the warrant requirement is known as an inventory search. (Id. at p. 126.) An inventory search is, functionally, an exception that permits the government to inventory the contents of a seized vehicle in order " '[1] to protect an owner's property while it is in the custody of the police, [2] to insure against claims of lost, stolen, or vandalized property, and [3] to guard the police from danger.' " (Needham, supra, 79 Cal.App.4th at p. 266.) Such searches "are typically performed in the course of police impounding a vehicle '[i]n the interests of public safety and as part of . . . "community caretaking functions." ' " (People v. Wallace (2017) 15 Cal.App.5th 82, 90 (Wallace).)
Because inventory searches are conducted in the absence of probable cause and create "the risk that an inventory search will be 'a ruse for a general rummaging,' " (Williams I, supra, 20 Cal.4th at p. 138), the analysis regarding the reasonableness of such a search is also unique. (People v. Torres (2010) 188 Cal.App.4th 775, 787-788 (Torres).) First, "a valid inventory search must adhere to a preexisting policy or practice" and, thus, the prosecution may need "to prove more than the existence of some general policy authorizing inventory searches." (Williams I, supra, 20 Cal.4th at p. 138.) Second, "courts will explore police officers' subjective motivations for impounding vehicles in inventory search cases, even when some objectively reasonable basis exists for the impounding." (Torres, supra, 188 Cal.App.4th at pp. 787-788.) "California courts have rejected claims of purported inventory searches where the evidence does not show the search was conducted in accordance with an established policy or practice governing such searches or indicates the search was conducted for another purpose." (Wallace, supra, 15 Cal.App.5th at p. 90 [citing various examples].)
The Search Was Not a Valid Inventory Search
Appellant first argues the inventory search was invalid because the evidence was insufficient to demonstrate the existence of a preexisting policy or practice regarding inventory searches. We do not agree. Both officers testified to their understanding that an inventory search should be completed whenever a vehicle is being towed, with Officer Garcia explaining such searches should be conducted after an arrest has been made. Appellant's challenges to the inventory search in this case do not raise any issues regarding the scope of the search or how it was conducted. Rather, appellant attacks the underlying rationale for conducting the search. As such, this is not the type of case identified in Williams I where the prosecutor needed to prove anything more than the existence of some general policy authorizing inventory searches under the circumstances presented. (Williams I, supra, 20 Cal.4th at p. 138.) The officers' testimony regarding when they understood an inventory search to be required was sufficient to demonstrate the existence of a policy specific enough to overcome appellant's objections.
Appellant next contends the evidence does not dispel the claim the officers utilized the prospect of an inventory search to conduct a warrantless investigation into what Officer Hernandez believed appellant was manipulating below the center console. Here, we agree. The court's inquiry into the appropriateness of an inventory search looks not only at the search itself, but at the decision to impound the vehicle. This is so because an improper decision to impound the vehicle results in an improper search. (People v. Williams (2006) 145 Cal.App.4th 756, 761 (Williams II) ["When an inventory search is conducted based on a decision to impound a vehicle, we 'focus on the purpose of the impound rather than the purpose of the inventory,' since an inventory search conducted pursuant to an unreasonable impound is itself unreasonable."].)
The evidence in this case sheds no direct light on the reasons why officers chose to impound appellant's vehicle following his arrest. Although the evidence shows inventory searches are conducted on impounded vehicles, there is nothing in the record identifying when a vehicle should be impounded. The officers' testimony provided no information on where the car was located after the stop, whether it created a hazard, or whether there were opportunities to have another person drive the vehicle away. In this way, the evidence shows no community caretaking function supporting the decision to impound the vehicle. (See Torres, supra, 188 Cal.App.4th at p. 790 [rejecting inventory search rationale where officer identified investigatory motive and there was no evidence vehicle "was illegally parked, at an enhanced risk of vandalism, impeding traffic or pedestrians, or could not be driven away by someone other than defendant"]; Williams II, supra, 145 Cal.App.4th at pp. 762-763 [search unreasonable where no community caretaking function identified for impounding vehicle and officer testified he impounded all vehicles when suspect taken into custody].)
In contrast, with respect to the decision to impound and search the vehicle, Officer Hernandez explained her concern over appellant's conduct created a desire to search the vehicle for contraband. Officer Garcia confirmed this motivation was a plausible factor by testifying Officer Hernandez began the inventory search by first searching under the center console where she thought contraband might exist. With no explanation for why the officers made the decision to impound the vehicle, and credible evidence that the officers harbored an intent to further investigate potential criminal activity through the search, we find this case to be most similar to those where searches were found unconstitutional, such as Torres and Williams II. The only evidence in the record as to why the police impounded appellant's car was that they intended to conduct an investigatory search based on observing appellant manipulating an item under the center console. Such motivations are improper in the context of an inventory search and, thus, the presumption the search is improper remains. (See Torres, supra, 188 Cal.App.4th at pp. 789-790 [search unreasonable where record shows investigatory motive despite existence of non-pretextual ground for impounding vehicle].)
The Search Was Supported by Probable Cause
In addition to the inventory search basis, the People seek to justify the search by claiming it was based on probable cause. "Probable cause is defined as ' " 'a fair probability that contraband or evidence of a crime will be found.' " ' [Citations.] Probable cause to search thus exists when the 'known facts and circumstances are sufficient to warrant a [person] of reasonable prudence in the belief that contraband or evidence of a crime will be found ....' [Citations.] The standard is a ' " 'fluid concept—turning on the assessment of probabilities in particular factual contexts,' " ' and is incapable of precise definition. [Citations.] A probable cause determination must be based on objective facts." (People v. Evans (2011) 200 Cal.App.4th 735, 753.) However, furtive movements or gestures alone are insufficient to constitute probable cause to search. (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 826-828.)
In this case, the evidence showed that appellant was stopped in an area known for criminal conduct because he had tinted windows and was not wearing his seatbelt. Officer Hernandez testified that, during the traffic stop, she observed appellant watch for Officer Garcia to leave before reaching down into an area of the car where items would not normally be kept and manipulated something. Officer Hernandez testified this conduct caused her to believe there was contraband hidden in the vehicle. The reasonable inference from this conduct is that appellant was seeking to hide that contraband from Officer Garcia while unaware he was being observed by another officer. While it is a close call, these facts distinguish this case from Kiefer, where the officer watched someone moving about in a vehicle before the car was stopped but could create no connection between that movement and any potential criminal activity. Here Officer Hernandez's testimony is sufficient to demonstrate not only that appellant was moving suspiciously, but that those movements were timed to avoid detection by officers. We conclude these observations are sufficient to demonstrate probable cause in this case. Given that the trial court expressed its view that Officer Hernandez may have had probable cause to search when ruling on the suppression motion, we reject appellant's claim at oral argument that this issue was not raised below and cannot support the trial court's ruling. Any Error in Excluding the Phone Records Was Harmless
Appellant also argues the trial court erred by refusing to admit certain phone records on the ground that they could not be introduced without a witness to explain the meaning of the UTC time codes on the records. In line with this position, appellant contends the trial court abused its discretion in failing to take judicial notice of the difference in time between UTC and PST time codes. Appellant says these errors were prejudicial.
It is well settled that the trial court can take judicial notice of any facts "that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." (Evid. Code, § 452, subd. (h).) And it has long been recognized that courts can take judicial notice of differences in time zones. (See People v. Mayes (1896) 113 Cal. 618, 625.) We review the decision to take judicial notice, as we do the decision to exclude evidence, for an abuse of discretion. (See People v. Masters (2016) 62 Cal.4th 1019, 1056 [exclusion of evidence]; Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549 [judicial notice].)
Appellant's arguments cover two acts by the trial court, the denial of appellant's request for judicial notice and the exclusion of potentially relevant evidence following that decision. Under the facts of this case, we agree with appellant that the court abused its discretion in failing to take judicial notice of the difference in time between UTC and PST time codes. This fact is easily determined through sources of reasonably indisputable accuracy. Moreover, the fact of the time difference is not material to any specific charge levied in the case, although potentially helpful to appellant's defense. While the People contend appellant should have offered more facts concerning the meaning of a UTC time code to the trial court in its motion, this contention does not lessen the fact that the court was merely asked to take judicial notice of a well-established fact that it could have readily ascertained and responded by suggesting certain testimony regarding the meaning of UTC time codes was required to admit the documents. Rejecting the request on these grounds constitutes an abuse of discretion.
Given the court should have taken judicial notice of the time change, we must next consider whether the court prejudicially erred by excluding appellant's phone records which were offered to demonstrate he was, in fact, on his phone during the course of the relevant traffic stop. Where an error is shown, we consider whether it is "reasonably probable that a more favorable result would have occurred had the evidence been admitted." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1125.) Appellant argues the evidence of his phone records was relevant and admissible evidence offered to support his defense and critically important to the credibility dispute regarding Officer Hernandez's observations.
Even if we accept the trial court erred by excluding the phone records, we conclude the error was harmless. Appellant was able to testify regarding his use of a cell phone, including by referring to the billing statements themselves while on the stand. Appellant also called a witness that corroborated his testimony by testifying she was attempting to contact him by phone at the time. In this way, appellant was able to present his defense even without the records and the jury was tasked with determining whether it believed Officer Hernandez saw appellant reaching for the identified contraband or merely reaching for a cell phone. In this context, we do not agree that introducing the records themselves would make it reasonably probable the jury would likely discredit Officer Hernandez and credit appellant's testimony. Appellant's version of events was already before the jury and the records were thus cumulative. Moreover, even if he was using his cell phone during part of the stop, the jury could still reasonably credit the officer's testimony that she saw him reaching into a location where a person would not store things, such as the cell phone. Accordingly, we conclude any error in excluding the records was harmless.
DISPOSITION
The judgment is affirmed.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
SMITH, J. /s/_________
SNAUFFER, J.