Opinion
A155226
12-05-2019
THE PEOPLE, Plaintiff and Respondent, v. COREY LAMONTE HAYES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 16NF000438)
Corey Lamonte Hayes challenges the trial court's denial of his motion to suppress (Pen. Code, § 1538.5). We remand for further proceedings.
All undesignated section references are to the Penal Code.
BACKGROUND
Appellant was charged with carrying a loaded firearm in a public place (§ 25850, subd. (c)(6)), pimping (§ 266h, subd. (a)), and pandering (§ 266i, subd. (a)(2)). After the trial court denied his motion to suppress (discussed below), appellant pled no contest to the firearm charge and proceeded to trial on the pimping and pandering charges.
The evidence at trial was as follows. In October 2015, A.W. contacted a woman he found on Backpage.com, a website that posts advertisements for prostitution. The woman was later identified as Danielle G. At the arranged location, A.W. got into Danielle G.'s car, and she subsequently pulled out a black Glock and demanded he pay her. A.W. gave her a $100 bill, took a photograph of her license plate as she drove away, and called the police.
Detective Eric Avila was dispatched to investigate the robbery at approximately 2:30 p.m. Avila found a Backpage.com advertisement listing the phone number provided by A.W. Avila called the number, posing as someone seeking prostitution services, and arranged to meet at a motel later that evening. Around the designated time, a car pulled into the motel parking lot with the same license plate number as was photographed by A.W. earlier that day. Appellant was driving the car. The car stopped, appellant got out, and Danielle G. moved from the passenger's seat to the driver's seat and drove further into the lot. Avila detained her and searched the car, finding seven condoms, business cards for "SexXxy Leila" with the same phone number Avila called to arrange the "date," four cell phones, and paperwork with Danielle G.'s and appellant's names. Danielle G. had no money in her possession and no money was found in the car.
Meanwhile, Detective Nick Morsilli watched appellant after he exited the car. Appellant sat on the curb next to a parked van, then walked to the far side of the van out of Morsilli's view for about 15 seconds before returning to the curb. Morsilli detained appellant and found an unregistered, loaded, black Glock handgun sitting on top of a tire on the far side of the van. Morsilli arrested appellant for possession of a firearm. Appellant had $21 in his pocket and a $100 bill in his sock. He was carrying a cell phone.
In an interview after appellant was taken to the police station, he admitted knowing Danielle G. was a prostitute and driving her to the motel that evening knowing she was meeting a client there, but denied being her pimp. After the interview, police secretly recorded appellant and Danielle G., who had been left alone in the back of a police car. Danielle G. asked appellant if he had "lawyer[ed] up hella fast," and appellant responded that he had not but "I didn't tell them shit." Appellant said he told police he knew what she did but she did not give him money, and Danielle G. responded, "Yeah, and that's what I told him too. I was like, 'I do it because I want to.' "
A recording of the interview was played for the jury and a transcript was provided.
The recording was played for the jury and a transcript was provided.
Morsilli provided expert testimony about relationships between pimps and prostitutes generally and about the meaning of text messages downloaded from appellant's phone. There were numerous text messages between appellant and Danielle G. indicative of a pimp-prostitute relationship, including messages in which appellant asks Danielle G. how many "dates" she has and Danielle G. tells appellant about her "dates" and how much they are for (i.e., " 'one for 200' " and " 'an outcall [when the prostitute goes to the customer's car or home] for 100' "). In another message appellant tells Danielle G. to " '[p]ass out cards [a phrase generally referring to business cards for prostitution services] till about 7:30, 8. Come back in and go back out at like 1 or 2.' "
Morsilli also testified about text messages between appellant and other contacts. In one exchange, appellant asked the recipient for a photograph of herself and she asked if he had made a Backpage account for her. Morsilli testified that pimps generally post advertisements for their prostitutes on Backpage.com, and the posts typically include photographs of the prostitute. Appellant replied that he " 'got that all under control' " and told her, " 'I've been doing this a long time, little mama. You the player and I'm the coach.' "
In an exchange with a contact identified as "Drew," Drew asked appellant, " 'Yo girl going out during the day or nah?' " Appellant responded, " 'Nah, she work the convention in the daytime,' " and Drew replied, " 'I want my bitch to go out during the day.' " Appellant cautioned, " 'if you got her going out night and day watch having her out so long because that's how they notice girls. Then they start 86N bitches from the casinos,' " a reference to casinos kicking out someone who is there for soliciting purposes.
In an exchange with "Karla," appellant wrote, " 'I thought you were good to take 35% because I am going to pay for the room and all the things you know. Yeah, your 35 would still be good money, but me only taking 35% and paying for all of the expenses it wouldn't exactly help me so think about that. I'm gonna be around and there for your needs and so forth.' " Karla objected, writing that her understanding was " 'I was going to give 35% not walk away with that. That basically means I am giving you 65%. Example I make 800 I would only walk away with 280 and I am not comfortable with that.' " Appellant replied that he was " 'not comfortable only taking 280 from 800. That's what it is going to cost to supply your room goods and so forth.' "
"Money Mia" wrote appellant, " 'Someone coming over for 80 for 15 minute,' " meaning a 15-minute date for $80. Appellant replied, " 'Okay. He wasn't the cops, right?' " Later, appellant texted her: " 'Brandi about to be there. She may have a client that wants to see you both. I know you said you're impatient, but it is the first night and your phone's gonna ring way more after one or two. But, yeah, just try to catch a date or two, and I will be there to take you to your destination.' "
The jury found appellant guilty of pimping and pandering. The trial court sentenced appellant to an aggregate prison term of three years.
DISCUSSION
I. Additional Background
Appellant's motion to suppress argued that police conducted a warrantless search of his cell phone without his consent and that a subsequent warrant authorizing a search of the cell phone was tainted by this unlawful prior search. The People's opposition argued that appellant consented to the initial search or, even if he did not give valid consent, the illegal search did not taint the subsequent warrant authorizing a search of appellant's phone. The transcript of appellant's police interview and the search warrant and affidavit were before the trial court on the motion to suppress. No testimony was presented and the audio recording of appellant's police interview was not played for the court.
Appellant's motion and the transcript of his police interview submitted in connection with the motion to suppress were missing from the trial court record, but are before us after appellant obtained an order from the trial court reconstructing the record.
In the transcript of the police interview, which took place shortly after appellant's arrest for firearms possession, Morsilli read appellant his Miranda rights. Appellant told Morsilli he was unemployed but his mother gave him money. He had the gun because he had previously been accosted at gunpoint. He knew Danielle G. from middle school, knew that she was a prostitute and drove her to the motel knowing she was meeting with a client, but did not protect her or take money from her. During the interview, Morsilli removed appellant's handcuffs, apparently after receiving the key from another officer. Shortly after removing the handcuffs, Morsilli asked, "what's gonna be in your phone when we look through your phone," for example, "a picture of your gun" or messages with Danielle G. "about making money?" A little later, the following exchange took place: "Q [Morsilli]: Oh your phone's locked. "Q: Do you know the password? "A [Appellant]: Yeah. "Q: What is it? "A: Um, is that - it's legal for me to give (unintelligible)? "Q: Absolutely (unintelligible). "A: Okay. I'll put it in for you."
Miranda v. Arizona (1966) 384 U.S. 436.
After appellant entered the password, Morsilli searched the phone and found text messages between appellant and Danielle G. suggesting a pimp-prostitute relationship.
The trial court found appellant consented to the search, noting appellant "had been previously [M]irandized" and "the overall situation wasn't so coercive that would vitiate any consent that he had." The court continued, "[appellant's] agreement to give [Morsilli] the password and to enter the password itself -- it seems to me he was the one that says give it to me. I will put it in for you because it is too hard to explain. All this -- against he's acting as a result of duress or coercion and his actions do show he was impliedly consenting to this."
II. Consent
"A consent to search is invalid if not freely and voluntarily given. [Citation.] [¶] The voluntariness of consent is a question of fact to be determined from the totality of circumstances. [Citations.] If the validity of a consent is challenged, the prosecution must prove it was freely and voluntarily given—i.e., 'that it was [not] coerced by threats or force, or granted only in submission to a claim of lawful authority.' " (People v. Boyer (2006) 38 Cal.4th 412, 445-446 (Boyer).) " 'The . . . voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, "The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings—whether express or implied—must be upheld if supported by substantial evidence." ' " (People v. Monterroso (2004) 34 Cal.4th 743, 758.)
We agree with appellant that the trial court's finding of voluntary consent is not supported by substantial evidence. According to the transcript of the interview, immediately after Morsilli asked appellant what his phone password was, appellant asked, "it's legal for me to give (unintelligible)?" and Morsilli responded, "Absolutely (unintelligible)." Neither Morsilli nor appellant testified about what was said in the portions of the transcript marked "unintelligible." Although the prosecutor represented at the hearing that the recording revealed appellant asked, "it's legal for me to give you that," the trial court did not listen to the recording before ruling on the motion to suppress and " '[i]t is axiomatic that the unsworn statements of counsel are not evidence.' " (People v. Wallace (2004) 33 Cal.4th 738, 754, fn. 3.) Thus, any implied finding about the missing words is pure speculation. " ' "[S]peculation is not evidence, less still substantial evidence." ' " (In re Ramirez (2019) 32 Cal.App.5th 384, 405.) Given the People's burden to prove voluntary consent (Boyer, supra, 38 Cal.4th at pp. 445-446) and the critical timing of this exchange—between Morsilli asking what the password was and appellant's entering the password—we fail to see how voluntary consent can be shown in the face of this evidentiary gap.
Because we conclude the trial court's finding was not supported by substantial evidence, we need not decide whether, as appellant contends, we should independently review the ruling.
In addition, as appellant argues, there is authority that asking appellant what his phone password was is not equivalent to asking permission to search his phone. In People v. Fields (1979) 95 Cal.App.3d 972 (Fields), after police pulled over the defendant, two officers approached the car with guns drawn and ordered him out of the car, thinking he might have committed an earlier armed robbery. (Id. at p. 974.) The defendant exited the car, was clearly unarmed, and the police put their guns away. (Ibid.) While police waited for the robbery victim to arrive, one of the officers asked the car's passenger " 'if she would open the trunk.' " (Id. at p. 975.) Officers searched the trunk and found marijuana. (Ibid.) The Court of Appeal reversed the trial court's ruling denying the defendant's motion to suppress the results of the search, finding the passenger did not voluntarily consent: " 'When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescense to a claim of lawful authority.' [Citation.] There is a world of difference between requesting one to open a trunk and asking one's permission to look in a trunk. . . . When the police 'ask' someone to perform an act which facilitates their access, as distinguished from asking permission to search, it cannot be said there has been no implicit assertion of authority. Especially is that so when one's companion is suspected of a robbery and the police have shown their weapons." (Id. at p. 976; see also People v. Ratliff (1986) 41 Cal.3d 675, 686 (Ratliff) [quoting Fields with approval].) Morsilli, like the officer in Fields, asked for access rather than for permission to search. Indeed, Morsilli's question—"What is it [your password]?"—is one that does not allow for a refusal and therefore demanded, rather than requested, access.
Similarly, in People v. Valdez (1987) 196 Cal.App.3d 799 (Valdez), the defendant was detained when the police executed a search warrant of a business. (Id. at pp. 802- 803.) In a pat-down search for weapons, an officer felt a bulge in the defendant's pocket, which he recognized to be a 35-millimeter plastic film canister. (Id. at p. 803.) With his hand on the bulge, the officer asked the defendant, " 'What is this?' [The defendant] removed the canister from his pocket and put it on the hood of the car. [The officer] asked him to open it. [The defendant] responded, 'You can open it if you want to.' " (Ibid.) The Court of Appeal reasoned the defendant did not consent to the search: "The officer's questions were not asking permission to search, but were requesting information and compliance. The circumstances indicate [the defendant] had no choice but to comply with the requests." (Id. at p. 807.)
Appellant had been arrested for illegal gun possession, was being interviewed at the police station, and only recently had his handcuffs removed. Morsilli asked, "what's gonna be in your phone when we look through your phone?"—a question that, if viewed in isolation, could be construed either as an implied assertion of authority to search the phone, or as simply a reference to "the officers' legal remedies should defendant refuse to cooperate," i.e., a search authorized by a subsequently-obtained warrant. (Ratliff, supra, 41 Cal.3d at p. 687.) But shortly after asking this question, Morsilli said, "Oh your phone's locked," indicating he was in fact attempting to "look through [appellant's] phone" during the interview, and thereby removing the possibility that his prior question referred to a future search authorized by warrant. Accordingly, Morsilli's questions—"Do you know the password [to your phone]?" and "What is it?"—were " 'ask[ing]' [appellant] to perform an act which facilitates their access, as distinguished from asking permission to search," which, under the circumstances, constituted an "implicit assertion of authority." (Fields, supra, 95 Cal.App.3d at p. 976; see also Valdez, supra, 196 Cal.App.3d at p. 807.)
In In re D.M.G. (1981) 120 Cal.App.3d 218, relied on by the People, after an apparently accidental shooting in a car occupied by two minors, the noninjured minor told a police officer the gun was in the car. (Id. at p. 223.) The officer asked the minor, " 'Would you open the vehicle[?]' "; she did so and the officer searched the car. (Id. at p. 224.) The Court of Appeal affirmed the finding of consent, distinguishing Fields on the ground that the officer had not drawn a gun and did not suspect the noninjured minor of other crimes. (Id. at p. 226.) The court reasoned, "under the facts of this case there was no demand or claim of right to proceed" and the officer's " 'request' did not amount to coercion." (Ibid.) In re D.M.G. is distinguishable: appellant had been arrested and had not volunteered to police that there was incriminating evidence in his phone.
The People rely on cases finding implied consent based on conduct, and argue appellant's conduct in entering his phone password for Morsilli constituted implied consent to the search. Implied consent focuses on whether the person with authority to consent in fact consented, rather than on whether the consent was voluntary. Thus, for example, when "officers standing outside the open door of the apartment asked [the visibly injured occupant] who had hurt her, [and] she stepped back and pointed to defendant lying on the couch inside, letting officers step into the apartment to see who she was pointing at," the occupant's actions "provide sufficient indication of her consent to the entry." (People v. Frye (1998) 18 Cal.4th 894, 990, disapproved of on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn.22.) Similarly, when an officer approached the defendant's mother outside their shared residence and asked "if she would phone [the defendant] and allow [the officer] to talk to him," and the mother agreed and "unlocked the door to her apartment and [the officer] followed her in," the officer's entry into the apartment "was plainly with the implied consent of [the mother]." (People v. Panah (2005) 35 Cal.4th 395, 466-467.) Had Morsilli asked if he could search appellant's cell phone and appellant, instead of responding verbally, entered the password and handed the phone to Morsilli, implied consent would apply. However, the issue here is whether appellant consented voluntarily.
The People also point to the circumstances that appellant received Miranda warnings and had been unhandcuffed, and that there was no evidence Morsilli displayed a weapon. While those factors are part of the totality of circumstances to be considered, they are not sufficient to provide substantial evidence of voluntary consent here in light of the factors discussed above.
In sum, no substantial evidence supports the trial court's finding that appellant voluntarily consented to the search of his cellphone.
III. Independent Source
In the trial court, the People argued that even if appellant did not give valid consent, the contents of appellant's phone were subsequently obtained through a legal independent source: a search warrant authorizing a search of appellant's phone. On appeal, appellant argues the prosecution failed to establish this alternative ground.
"It has long been established that even if a criminal investigation involved some illegal conduct, courts will admit evidence derived from an 'independent source.' " (People v. Weiss (1999) 20 Cal.4th 1073, 1077 (Weiss).) "Where the affidavit supporting a search warrant contains both information obtained by unlawful conduct as well as untainted information, a two-prong test applies to justify application of the independent source doctrine. [Citation.] First, the affidavit, excised of any illegally-obtained information, must be sufficient to establish probable cause. [Citation.] Second, the evidence must support a finding that 'the police subjectively would have sought the warrant even without the illegal conduct.' " (People v. Robinson (2012) 208 Cal.App.4th 232, 241 (Robinson).)
"[W]e determine de novo whether the search warrant affidavit is sufficient to establish probable cause . . . absent the information obtained by the illegal [conduct]." (Robinson, supra, 208 Cal.App.4th at p. 241.) The search warrant affidavit here included information obtained from the illegal search of appellant's phone. First, it included information that his phone contained "dozens of text messages between [Danielle G.] and [appellant] conversing about 'out calls', 'in calls', and how much money she has made from 'tricks.' " Second, it included statements appellant made to Morsilli after the search (we will assume, as appellant argues, that these statements are tainted by the search): that he had driven Danielle G. to a " 'trick' " earlier that day, waited outside while Danielle G. met with the client, and was subsequently told by Danielle G. that the client tried to rob her so she pulled the gun on him.
However, the affidavit also contained a substantial amount of untainted information: A.W.'s statement, the police investigation into Danielle G.'s identity and her Backpage.com advertisement, the police's arrangement of a "date" with Danielle G., the events after appellant and Danielle G. entered the motel parking lot, and appellant's statements to Morsilli before the phone search. In addition, Detective Avila averred: "Based on my training and experience, I . . . know that persons engaged in prostitution (both the 'pimp' and prostitute) primarily use cellular phones to set-up dates, track monies earned, and discuss their illegal activities." We conclude that, excising the tainted information, the affidavit still contained ample probable cause. Most significantly, appellant admitted knowing Danielle G. was a prostitute, driving her to meet a client, and carrying a gun to the location; the robbery victim gave Danielle G. a $100 bill earlier that day, Danielle G. had no money on her when arrested, and appellant had a $100 bill in his sock; and Avila averred that pimps and prostitutes used cell phones to discuss their illegal activities.
This leaves the question whether "the police subjectively would have sought the warrant even without the illegal conduct . . . ." (Weiss, supra, 20 Cal.4th at p. 1079.) In Murray v. U.S. (1988) 487 U.S. 533, the United States Supreme Court rejected the circuit court of appeals' finding that the illegal conduct " 'was totally irrelevant to the later securing of a warrant' " where the trial court made no such finding, and directed the matter be remanded to the trial court to make such a finding in the first instance. (Id. at p. 543-544.) As in Murray, the trial court made no finding as to whether the officers would have sought the warrant without the illegal conduct, and such a finding can only be made on remand. The People do not argue otherwise.
Appellant argues the People failed to present any evidence on the issue below and we should therefore reject the argument without remand. We disagree. At the hearing below, the court and the parties agreed to first consider consent because, as the court reasoned, if the search "was not illegal, then it kind of moots the argument on the search warrant." Immediately after agreeing on this arrangement, the court asked, "Are we going to have evidence on that?" The prosecutor responded that "Officer Morsilli . . . doesn't recall there being any discussion about the phone outside of what is in the transcript. So I don't know that testimony would necessarily add anything, but I did ask him to be here in case something came up." In declining to present testimony, therefore, the People were considering only the issue of consent. We decline to construe this as a deliberate decision not to present testimony on the issue of the search warrant. Accordingly, a remand is appropriate for the trial court to determine whether the police would have sought a search warrant absent the illegal conduct.
Because of this conclusion, we need not decide whether the affidavit itself could give rise to a reasonable inference that the officers would have sought the warrant absent the illegal conduct.
In the cases relied upon by appellant, unlike here, the People failed to raise the undecided theory at all below. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640 ["If the People had other theories to support their contention that the evidence was not the product of illegal police conduct, the proper place to argue those theories was on the trial level at the suppression hearing. The People offered no such argument at that hearing and may not do so for the first time on appeal."]; People v. Gentry (1992) 7 Cal.App.4th 1255, 1268 ["The People's final position, since we have found the conduct unlawful, is to request that we remand the case to allow them an opportunity to prove that the statements were not the product of the police misconduct. This theory and evidence necessary to support it were not presented below."]; cf. People v. Brooks (1980) 26 Cal.3d 471, 483 ["Where, as here, the trial court elects to bifurcate the suppression hearing, grants the defendant's motion on the first ground presented, and is subsequently reversed on appeal, the reviewing court should remand to the trial court for disposition of the alternate grounds for suppression. . . . Lorenzana is . . . plainly distinguishable on its facts, as the People there sought to raise for the first time on appeal a new ground for the admissibility of evidence."].)
IV. Harmless Error
No remand is necessary if, as the People argue, any error in the denial of appellant's motion to suppress was harmless beyond a reasonable doubt with respect to the pimping and pandering convictions. (People v. Camel (2017) 8 Cal.App.5th 989, 998 [error in denying motion to suppress not reversible if harmless beyond a reasonable doubt].) We agree with appellant that any error would not be harmless beyond a reasonable doubt. As is abundantly clear from our recitation of the evidence presented at trial, a substantial portion of the People's evidence was the incriminating text messages with Danielle G. and others found on appellant's phone.
Appellant only seeks reversal as to these counts.
DISPOSITION
The convictions for pimping and pandering are remanded for further proceedings not inconsistent with this opinion.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.