Opinion
C074977
08-18-2017
THE PEOPLE, Plaintiff and Respondent, v. DONALD DARNELL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF120001730)
A jury convicted defendant Donald Darnell of carrying a loaded, concealed and unregistered firearm. The trial court sentenced him to probation for three years.
Defendant now contends (1) his motion to suppress evidence should have been granted, (2) the trial court should have dismissed all charges as a sanction for police destruction of potentially exonerating evidence, and (3) in the alternative, defendant's trial counsel was ineffective.
We will affirm the judgment.
BACKGROUND
Davis Police Officer Roxanne Owens responded to a tire store after reports that there were individuals meandering in a garden area and might be casing the store to burglarize it. When Officer Owens arrived she found defendant and another man standing near a Ford Expedition. She talked to the men, asked for their identification, and asked why they had been hanging around the closed tire store.
As defendant reached for his identification, Officer Owens observed a metal clip near his pocket. And when his sweatshirt shifted, she saw three knives on his waistband. Officer Owens was at the scene alone at the time and the knives caused her to be concerned for her safety. She directed defendant to keep his hands raised while she removed the knives. Officer Owens asked defendant to wait for another officer to arrive before continuing.
During her contact with defendant Officer Owens noticed he smelled of alcohol and that he was holding an open Coca Cola bottle that also smelled of alcohol. She told him he was violating a city open container ordinance and that she was detaining him to write a citation. Officer Owens asked if defendant had any other weapons on him and he said he did not. She then asked if she could search him for additional weapons and defendant said no.
During the subsequent pat search Officer Owens found an unregistered handgun in defendant's rear waistband. The handgun had a bullet in the chamber and five more bullets in the magazine. A consensual search of the Ford Expedition revealed burglary tools and an open bottle of whiskey. Defendant admitted the Coca Cola bottle in his hand contained alcohol and that he had been drinking. The officer photographed the bottle and dumped it out.
Defendant moved to suppress evidence of the firearm at his preliminary hearing. The trial court denied the motion. The trial court also denied defendant's subsequent motions to set aside the information and to reconsider his motion to suppress. Defendant then moved to dismiss the information because the police did not retain the potentially exculpatory contents of the Coca Cola bottle; he argued the entire case was based on the liquid the police did not preserve. The trial court dismissed the alcohol-related charges, but not the firearm charges.
A jury convicted defendant of carrying a loaded, concealed and unregistered firearm. (Penal Code, §§ 25850, subds. (a)(2), (c)(6), 25400, subds. (a)(2), (c)(6).) The trial court placed him on probation for three years.
Additional facts are included in the discussion.
DISCUSSION
I
Defendant contends his motion to suppress evidence should have been granted. He claims the search was unlawful because Officer Owens detained him when she requested his identification, continued to detain him for a prolonged period without reasonable suspicion of criminal activity, and she had no reason to believe he was armed and dangerous when she conducted the search.
In reviewing the denial of a motion to suppress, we must "defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Officer Owens testified she conducted the search out of concern for her safety. In denying the motion to suppress, the trial court credited the officer's testimony.
Courts have identified three categories of interaction between police and citizens that are relevant to our analysis: (1) consensual encounters which require no objective justification; (2) detentions, which require an articulable suspicion that a person has committed or is about to commit a crime; and (3) formal arrests, which require proof of probable cause. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.) There is no dispute that the initial conversation between Officer Owens and defendant and his friend was a consensual encounter.
Defendant argues he was detained when he submitted his identification to the officer because a reasonable person would not have felt free to leave at that point. But a request for identification does not create a detention when there is no accusation, no force, and no evidence the officer would have refused a request to return the identification card. (People v. Leath (2013) 217 Cal.App.4th 344, 353; see Hiibel v. Sixth Judicial Dist. Court (2004) 542 U.S. 177, 185 [159 L.Ed.2d 292, 302].) The Attorney General asserts the consensual encounter did not become a detention until the officer took the knives from defendant's waistband, and we agree.
There is no bright line rule to measure the reasonable length of an investigative detention; common sense and ordinary experience govern over rigid criteria. (U.S. v. Sharpe (1985) 470 U.S. 675, 685 [84 L.Ed.2d 605, 615].) In considering whether a detention was too long, courts should not engage in second-guessing by asking whether another alternative was available to police, but instead should consider "whether the police acted unreasonably in failing to recognize or to pursue it." (Id. at p. 687 .) Circumstances that develop during a detention may provide reasonable suspicion to prolong it. (People v. Russell (2000) 81 Cal.App.4th 96, 102.)
Here, Officer Owens arrived on the scene at 6:33 p.m., called in defendant's Oregon identification at 6:41 p.m., learned from dispatch that he had a California license at 6:42 p.m., and was joined by a second officer at 6:44 p.m. During that time Officer Owens removed defendant's knives from his waistband, asked him to wait for a second officer, and told him she was going to issue a citation. Defendant argues the waiting time was unreasonable because possessing the knives was not unlawful and there was no other objective sign of criminal activity. But "[w]hen an officer is justified in believing that the individual whose suspicious behavior he [or she] is investigating at close range is armed and presently dangerous to the officer or to others," the officer may "take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." (Terry v. Ohio (1968) 392 U.S. 1, 24 [20 L.Ed.2d 889, 908].) Here, Officer Owens knew defendant was carrying multiple weapons and it was reasonable under the totality of the circumstances for her to confirm whether defendant had any other concealed weapons. The totality of the circumstances included facts such as that there had been more than one report of suspicious behavior, defendant was hanging out around a closed store, he had an open container that smelled of alcohol, and he was carrying and failed to disclose multiple concealed knives easily accessible to him. Under the circumstances there was no Fourth Amendment violation.
II
Defendant also contends the trial court should have dismissed all charges as a sanction for police destruction of the liquid in the Coca Cola bottle. He claims the prosecution violated a constitutional duty to gather, preserve and disclose evidence as defined in California v. Trombetta (1984) 467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S. 51 . However, the applicable evidence under this standard is that which "might be expected to play a significant role in the suspect's defense." (California v. Trombetta, 467 U.S. at p. 488 , fn. omitted.) It must "possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Id. at p. 489 .)
Here, the police did not preserve the liquid in the Coca Cola bottle or test it for alcohol, and hence the trial court dismissed the alcohol-related charges against defendant. But contrary to defendant's arguments, the search was not based on the Coca Cola bottle or the citation. The liquid in the bottle did not play a significant role in his defense to the gun charges.
A trial court has discretion in determining the appropriate sanction for failure to preserve material evidence. (People v. Alvarez (2014) 229 Cal.App.4th 761, 778.) We find no abuse of discretion in the trial court's decision to strike the alcohol-related charges but not the firearm charges.
III
In the alternative, defendant contends his trial counsel was ineffective when he failed to make a renewed motion to dismiss the firearm charges on the basis that the Coca Cola bottle contents were not preserved.
Defendant must show that counsel's performance was so deficient -- so far below an objective standard of prevailing professional norms for defense counsel -- that it prejudiced the case. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) To establish prejudice he must show by a preponderance of the evidence that there is a reasonable probability the result of the proceeding would have been different. (Ledesma, at pp. 217-218, quoting Strickland v. Washington, at pp. 693-694 [80 L.Ed.2d at pp. 697-698].)
We have already concluded that the liquid in the bottle did not play a significant role in defendant's defense of the firearms charges. Thus, it is not reasonably probable that a renewed motion to dismiss the firearms charges based on the liquid in the bottle would have resulted in the trial court dismissing the firearm charges. Accordingly, defendant has not shown that his counsel was deficient. His ineffective assistance of counsel claim lacks merit.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
DUARTE, J.