Opinion
F075001
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANTHONY FACTOR, Defendant and Appellant.
Allan E. Junker, 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, Eric L. Christoffersen and Ivan P. Marrs, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF163340A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey and John S. Somers, Judges. Allan E. Junker, 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, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Ellison, J.†
Judge Humphrey denied defendant's suppression motion; Judge Somers sentenced the defendant.
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Appellant Joseph Anthony Factor pled no contest to being an accessory to a felony (Pen. Code, § 32). On appeal, Factor contends the court erred when it denied his motion to suppress. We affirm.
All statutory references are to the Penal Code.
FACTS
On February 29, 2016, Bakersfield Police Detective John Talbot saw Carlos Perez walk across the front yard of a house on Lewisham Street (the Lewisham house) and get into the backseat of a car being driven by Factor with Armando Tellez as the front seat passenger. Following a traffic stop, Talbot arrested the men after Factor admitted they were looking for a house to burglarize and made statements implicating him in a burglary three days earlier.
Subsequent references to dates are to dates in 2016 unless otherwise stated.
On March 23, the Kern County District Attorney filed an information charging Factor with first degree burglary (§ 460, subd. (a)).
On April 4, Factor filed a motion to suppress alleging Talbot had unlawfully detained him. The court heard and denied Factor's suppression motion on April 28.
On October 28, the prosecutor amended the information to include count 2, which charged Factor with being an accessory to a felony. Factor then entered his no contest plea to count 2 in exchange for the dismissal of the burglary count and a grant of probation, conditioned on Factor serving a year in custody.
On January 6, 2017, pursuant to his negotiated plea, the court placed Factor on probation for three years.
The Suppression Hearing
At the hearing on Factor's suppression motion, Detective Talbot testified that on February 29, at approximately 9:45 a.m., he was patrolling the Seven Oaks area of Bakersfield because of several recent burglaries in the area. A week earlier, Talbot had received a criminal analysis report indicating a silver car had been involved in those burglaries. Talbot was also familiar with reports listing a silver car as the suspect vehicle used in the burglaries and describing the suspects as Hispanic males in their teens.
On Lewisham Street, just past the Lewisham house, Talbot saw a silver Toyota suspiciously parked by a fence, as if the car's occupants were attempting to conceal themselves from anyone who might have been home. He also observed Perez walking from the house, across the lawn, to the Toyota. As Talbot drove past the Toyota, he saw Factor in the driver's seat and Tellez in the front passenger's seat. Both men were reclining and sitting low in their seats in an apparent attempt to avoid being seen. After turning around, Talbot saw Perez get into the backseat and the Toyota immediately drive off.
One of the recent burglaries had occurred two days earlier around the corner from where Talbot saw the Toyota.
Talbot described the three men as Hispanic males who appeared to be in their late teens or early twenties.
Talbot followed the Toyota a few blocks before making an investigative stop. During the stop, Talbot recognized Tellez, whom he had contacted on many prior occasions. Additionally, a year and half to two years earlier Talbot had arrested Tellez for numerous residential burglaries.
After five minutes, when Officer Setser arrived, Talbot had the men get out of the Toyota and the officers handcuffed them. Talbot had Perez and Tellez sit on the curb and placed Factor in the rear of Setser's patrol car. Detective Mills arrived within 10 minutes after Factor was placed in the patrol car. Talbot and Mills then went to the Lewisham house and spent five to ten minutes checking it and some neighboring houses for evidence of forced entry, but did not find any.
When the detectives returned to where the men were detained, Talbot spoke with Factor. Talbot told Factor he did not believe Factor was being honest and Factor may have been involved in the burglary in the same neighborhood a few days earlier. Factor responded by stating something like, "Yeah, but I didn't go inside." Talbot then took the three men to the police station for further investigation. At the station, after being advised of his Miranda rights, Factor continued to make incriminating statements.
Miranda v. Arizona (1966) 384 U.S. 436. --------
Talbot arrested Factor based on his observations at the Lewisham house and Factor's statements to Talbot in the patrol car which led him to believe the men were involved in an attempted burglary and/or prowling (§ 647, subd. (f)). He arrested Tellez and Perez based on their involvement in the attempted burglary and/or prowling at the Lewisham house.
In support of the motion to suppress, defense counsel argued Talbot did not have probable cause or reasonable suspicion to detain Factor and the detention was unduly prolonged. The prosecutor noted Talbot stated the basis for the arrest was the trio's conduct at the Lewisham house and argued the 15- to 20-minute detention was reasonable to investigate a crime occurring at the house involving suspects who may also have been involved in recent burglaries in the neighborhood. In denying Factor's suppression motion, the court found Talbot was justified in stopping Factor to investigate whether the trio was involved in the recent burglaries and the detention was not unduly prolonged.
DISCUSSION
Factor contends that once Talbot returned from the Lewisham house without finding any evidence of a crime, Talbot did not have a lawful reason to continue detaining him. Thus, according to Factor, because the statements he made to the detective while detained in the patrol car and at the station were the product of an unduly prolonged detention, the court erred when it denied his motion to suppress. We disagree.
"An investigatory stop exceeds constitutional bounds when extended beyond what is reasonably necessary under the circumstances that made its initiation permissible. [Citation.] Circumstances which develop during a detention may provide reasonable suspicion to prolong the detention. [Citation.] There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. [Citations.]
"On review of denial of a suppression motion, we defer to the trial court's factual findings where supported by substantial evidence, but exercise independent judgment to determine whether, on the facts found, the search was reasonable under Fourth Amendment standards." (People v. Russell (2000) 81 Cal.App.4th 96, 101-102.)
While on patrol in a neighborhood where several burglaries had occurred, Talbot saw a Hispanic male walk from a house, across the front yard, and get into the backseat of a silver Toyota with two other Hispanic males. The three men appeared to be in their late teens or early twenties and the Toyota was parked past the house in a location where the residents of the house would not see them. Further, Talbot was aware several other burglaries in the area had reportedly involved a silver car and Hispanic males in their teens and a house around the corner had been burglarized within the past two days. As he drove by the Toyota, Factor and Tellez sat low in their seats in an apparent attempt to conceal themselves. As soon as Talbot turned around, Perez was getting into the car and the car drove off. After stopping the car and approaching it, Talbot recognized Tellez from having previously arrested him for numerous residential burglaries. These circumstances caused Talbot to reasonably suspect the men may have been involved in the recent burglaries in the area, including one occurring only days earlier, and they may have been involved in a burglary at the Lewisham house or prowling there.
Moreover, at most, about 30 minutes elapsed from when Talbot stopped Factor until he returned from the Lewisham house. Although at that point Talbot had determined the Lewisham house had not been burglarized, he still needed to interview Factor and his companions about their involvement in the apparent attempted burglary and/or prowling he had observed. Additionally, to complete his investigation, Talbot needed to interview the three men about their potential involvement in the recent burglaries in the area. Therefore, since Talbot diligently pursued his investigation and it was not complete when he returned from the Lewisham house, we conclude Factor's detention was not unduly prolonged (cf. In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385 [30-minute delay was reasonable under the circumstances]) and the court did not err in denying Factor's suppression motion.
DISPOSITION
The judgment is affirmed.
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.