Opinion
A155509
04-03-2020
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. LEE JACKSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 16CR013196)
Defendant Lee Jackson was sentenced to 55-years-to-life in prison after a jury found him guilty of four crimes, including the first degree murder of Tony Smith. On appeal, he presents the following five arguments: (1) his counsel provided ineffective assistance by failing to seek exclusion of a witness's identification of him as the shooter, an identification he contends the police coerced by threatening the witness she would lose her child if she did not answer their questions; (2) the trial court erred in denying defendant's motion to suppress evidence (including the murder weapon found in his possession) because he was detained without reasonable suspicion and there was no probable cause for the warrantless search that led to discovery of the murder weapon; (3) the trial court abused its discretion in allowing the prosecution to introduce text message exchanges between defendant and another man in which they discussed committing armed robberies; (4) the matter must be remanded for resentencing to allow the trial court to exercise its discretion with regard to a Penal Code section 667, subdivision (a) enhancement in light of a recent amendment to the statute that makes the imposition of the enhancement discretionary; and (5) cumulative error. Defendant has also filed a petition for writ of habeas corpus (A158572) asserting two ineffective assistance of counsel claims.
Defendant's argument regarding resentencing is well taken. All others lack merit. We thus reverse and remand for the sole purpose of allowing the trial court to exercise its discretion to impose or strike the five-year enhancement provided by Penal Code section 667, subdivision (a). In all other regards, we affirm.
BACKGROUND
A. Evidence at Trial
At 4:14 a.m. on September 14, 2016, Oakland's "Shotspotter" system recorded a gunshot in the city's Fruitvale district. Approximately 15 minutes later, 66-year-old Tony Smith was found dead in his car near the intersection of 35th Avenue and International Boulevard. He died from a single gunshot to his torso. The police found a bullet lodged in the car's console and a nine-millimeter spent casing near the corner of 36th Avenue and International Boulevard.
A left palm print lifted from the driver's door of Smith's car was found to match defendant. As a result, in early October, the police began to focus on defendant as a suspect in Smith's murder. They obtained his cell phone records and learned that he was in communication with a woman named Lea Farr, who had been arrested on October 6 on prostitution charges in the same area as the Smith murder.
A records check on defendant revealed that on September 23—nine days after Smith's murder—he had been arrested in Davis. The police report on the arrest related that defendant and Farr were in a car parked on the shoulder of a road leading to a freeway onramp in a dark, isolated area of Davis in the middle of the night. The officers approached the car and spoke to defendant and Farr, detecting the smell of burnt marijuana during the conversation. After defendant told the officers he was on parole, they searched the car and found a nine-millimeter handgun under the front passenger seat. While defendant and Farr were seated in the back of the patrol car, defendant urged Farr to tell the officers the handgun belonged to her.
The car defendant was driving in Davis was a rental car that had been rented by Jessica Ballard, defendant's girlfriend. Ballard had never seen the handgun found in the rental car. Ballistics confirmed that the gun had fired the shell casing found at the scene of Smith's murder and the bullet found in Smith's car.
The police obtained cell phone records for defendant, Farr, and a man named Vincent Renfrow. The records indicated that between 12:11 a.m. and 12:37 a.m. on September 14—the morning of Smith's murder—their three cell phones were in the vicinity of each other in the Sacramento area. Defendant's and Farr's cell phones then exchanged calls at 3:04 a.m., 3:07 a.m., and 3:08 a.m. using a tower "extremely close" to the scene of Smith's murder. Between 3:56 a.m. and 4:18 a.m., defendant's and Farr's phones again pinged off towers near the scene of Smith's murder. The area where Smith was murdered was known for prostitution, and the police believed defendant was Farr's pimp and they were in the area so Farr could engage in prostitution.
The internet history from defendant's cell phone showed searches on September 14 for "September 14th shooting in Oakland," "Man sitting in car shot killed in Oakland," "man shot, killed in car near Fruitvale BART station in Oakland," and other similar searches. Defendant's cell phone also contained a series of texts exchanged from October 1 to November 3, 2016, between him and someone identified in his phone contacts as "Vinny," regarding obtaining a gun and committing armed robberies.
On November 1 and 2, warrants were issued for the arrest of defendant and Farr for Smith's murder. On November 3, they were arrested at a courthouse in Oakland, where Farr was scheduled to appear on her October 6 prostitution case. A car key found on defendant led the police to Farr's car, where they found a loaded revolver.
In a police interview that day, Farr gave the following account of Smith's murder: On September 14, she rode from Sacramento to Oakland in a car with defendant and a man she knew as "V." She was walking the streets when Smith drove by and asked for a date. She ultimately met him around the corner and got into his car to negotiate the price for her services. After she got into the car, she heard defendant's voice on the driver's side. When she looked over, she saw a gun. She did not remember exactly what defendant said but it sounded like someone getting ready to rob someone. Smith tried to shift the car out of park, and Farr heard a gunshot. The car rolled forward, and when it came to a stop, she jumped out and ran back to the car she had arrived in. She, defendant, and V then fled to San Francisco.
At defendant's trial, Farr initially refused to answer questions about her November 3 police interview, despite that she had been granted immunity. Consequently, portions of the video recording of her police interview were shown to the jury.
After a lunch break, Farr was more willing to answer the prosecutor's questions. Her ensuing testimony was largely consistent with what she had told officers in her November 3 interview, up until the point when she described what happened once she was in Smith's car. Rather than repeat her identification of defendant as the gunman, she testified that after she and Smith negotiated the price for her services, she bent down to get a cigarette, and when she looked back up, she saw a gun through the driver's side window. She said she could see the hand that was holding the gun but did not remember whose gun it was. She further said she heard an exchange about money between the gunman and Smith, but she forgot what the gunman said and did not recognize his voice.
On cross-examination, defense counsel took Farr through her August 2017 preliminary hearing testimony, in which she testified that when she was sitting in Smith's car, she saw her ex-pimp—a man named Prince—who had dark skin and was wearing a black hoodie, standing outside the car, and that Prince, not defendant, was the shooter. She also testified at the preliminary hearing that she did not identify Prince as the shooter in the police interview because she was scared of him—more scared of him than of defendant—and the police pressured her to identify defendant as the shooter.
Defendant is a light-complected African American.
Farr further testified on cross-examination that in February 2017 she told a defense investigator that defendant was not the shooter and that she had told the police he was the shooter because she was scared of Prince, who had told her that if she talked to the police something might happen to her and her family.
Still on cross-examination, Farr testified both that she was truthful when she spoke to the police on November 3, and that at the preliminary hearing she did her best to tell the truth. She also responded, "Um, I don't know" when defense counsel asked if she was being truthful when she gave certain answers at the preliminary hearing, including when she identified Prince as the shooter.
On re-direct, Farr testified that she had seen Prince at a strip club in Sacramento earlier in the evening of September 13 but had not seen him in Oakland on the day of Smith's murder. The prosecutor asked, "[A]re you telling this jury that you never saw Prince in Oakland, but Prince was the person that shot this poor customer who is sitting to your left?" Farr responded, "No. I don't know."
B. The Proceedings Below
An amended information charged defendant with one count of murder, two counts of possession of a firearm by a felon, and one count of shooting at an occupied motor vehicle. It also alleged multiple enhancements, including a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a).
All statutory references are to the Penal Code except as otherwise noted.
As will be set forth in greater detail below in connection with defendant's second argument, in March 2018, defendant moved to suppress evidence recovered during the September 23 search of the car in Davis, including the murder weapon. He argued that the police lacked probable cause to search the car because he was not in fact on parole at the time of the search and the smell of burnt marijuana did not constitute probable cause. The court found the police had probable cause to search the car and denied the motion.
The matter proceeded to a jury trial, at the conclusion of which the jury found defendant guilty of first degree murder and all other charges, and all enhancements were found true, defendant having previously admitted two prior felony convictions.
Defendant begins his statement of facts by representing that he "was convicted of first degree murder under the felony murder rule, on the theory that there was an attempted robbery." The jurors were in fact instructed on both malice murder and felony murder, and were further instructed that they did not need to agree on the same theory of first degree murder.
Defendant was sentenced to 55-years-to-life in state prison, which included multiple enhancements, including a five-year enhancement for a prior serious felony conviction pursuant to section 667, subdivision (a). In arriving at that sentence, the court exercised its discretion to strike defendant's prior strikes, acknowledged its discretion to strike a 25-year firearm enhancement but declined to do so because defendant benefitted sufficiently by the court striking his prior strikes, and specifically observed that it did not have discretion to strike the five-year section 667, subdivision (a) enhancement.
Defendant filed a timely appeal.
On May 14, 2019, defendant filed his opening brief, asserting the following five arguments: (1) Farr's statement to the police should have been excluded because it was obtained by coercion, and defense counsel rendered ineffective assistance by failing to seek its exclusion; (2) the trial court erred in denying his suppression motion because the warrantless search of the rental car was not justified as a parole search or by the smell of burnt marijuana; (3) the trial court erred in admitting text messages exchanged between him and "Vinny" regarding plans to commit an armed robbery; (4) the matter must be remanded to allow the trial court to exercise its discretion regarding imposition of the five-year enhancement under Penal Code section 667, subdivision (a); and (5) cumulative prejudice.
On July 25, defendant filed a supplemental opening brief asserting one additional argument: the trial court erred in denying his motion to suppress because the police lacked reasonable suspicion to justify his initial detention.
On October 14, defendant filed a petition for a writ of habeas corpus (A158572), which we ordered considered with this direct appeal. The petition asserts two claims of ineffective counsel: (1) defense counsel rendered ineffective assistance by failing to move to exclude Farr's statement to the police on the ground that it was coerced by their threats that she would lose her son if she did not answer their questions, and (2) defense counsel rendered ineffective assistance by failing to raise the correct ground in support of his motion to suppress, namely, that his initial detention was without reasonable suspicion.
DISCUSSION
A. Defense Counsel Did Not Render Ineffective Assistance by Failing to Seek Exclusion of Farr's Statement to the Police
1. Background
As noted above, Farr was arrested on November 3, 2016. She was interviewed that day by Oakland Police Sergeants Rich Vass and Rob Rosin, an interview that began at 1:40 p.m. and lasted three hours. At the outset, Vass offered Farr coffee, confirmed she was not cold, and asked a few minutes of introductory questions, including whether she had any children. Farr responded that she had one child, a 13-year-old boy. Vass commented that 13 was a "fun age" and asked if he was "into everything." After offering that her son won second place in a talent show, Farr confirmed he lived in Texas with her mother.
Following these introductory questions, Vass twice advised Farr of her rights and then told her they were there to determine whether she was a witness to or suspect in Smith's murder. He said they had "a lot of evidence," and he wanted the truth from her about what happened the night of the murder. Farr did not deny being present at the murder, instead admitting she had been approached by Smith and had gotten into his car to negotiate the rate for her services when "everything just went crazy." She said she was sitting in his car and had looked down when she heard another voice and then a gunshot. Smith drove his car forward a short distance, and she rolled out of the car and ran to the BART station. When pushed to admit she actually got into a car after the shooting, Farr began hesitating. The officers reminded her that they were trying to determine if she was "more of a victim or a witness," and told her to be truthful about what happened that night, including about who had driven her to International Boulevard.
A half hour into the interview, Farr admitted defendant was in the car that had delivered her to International Boulevard that night. And, after additional questioning, she admitted she got back into the same car that had driven her to that location and that defendant's friend "V" was in the car. Farr told the officers V was in the driver's seat and she got in the back seat, but she would not identify who was in the front passenger seat, repeatedly saying she did not know. Eventually, when Vass asked her if defendant was "in this seat right here"—meaning the front passenger seat—Farr responded, "Yeah."
The officers urged Farr to "be an adult" and not protect someone who had jeopardized her life by firing into the car while she was sitting in it. They informed her that while she considered defendant her boyfriend, the woman who rented the car defendant was driving in Davis was in fact "his girl," "where he lays his head most of the time . . . ."
Farr told the officers she thought she was just going to court that day to take care of her prostitution case. Vass responded that defendant is "not going to jail because of prostitution, you know why he's going to jail, right? Right? 'Cause of this. Right? And I'm trying to figure out where you are involved. You have a son that's 13-years-old, that lost his mom." Farr responded, "Mm-hm," and Vass followed up with, "Okay? Let's help put this behind us so we can figure out where we go from here, alright? But this whole thing . . . waiting two hours to speak on his name, that's not gonna work. Alright? I'm telling you, you need to think about yourself."
Approximately an hour into the interview, Farr stated that defendant had been in the front passenger seat. The officers continued to ask questions about the events of that night, repeatedly reminding Farr to move on from defendant and put herself first and eliciting more and more details about the incident—up until the point when Farr saw a gun pointing in through the driver's window. At that point, when asked whose voice she heard and what the man said, Farr again became reluctant to answer. Again urged to think about herself, Farr responded that it was defendant's voice. After more encouragement to be honest and provide the whole picture, Farr reiterated that it was defendant's voice she heard outside the driver's window. Prodded to tell them what he said, she answered that it was "like a person, like, getting—trying to rob somebody," and "it sounds like . . . somebody, like, puts you at gunpoint and tried to rob you or gimme all your money or whatever. . . ."
The officers spent more time questioning Farr about what specifically defendant had said when he approached Smith's car. While she would not answer that question, she answered others, including admitting defendant had known she got into Smith's car because he had been watching her. She also admitted defendant walked up to Smith's car to take his money, claiming that was the first time he had done that. The officers challenged her on this, repeatedly asking how many times defendant had committed a similar robbery in the past and suggesting she knew defendant had a gun with him that night and knew what he was planning to do. The officers then again reminded Farr that defendant did not care about whether she got shot in the car, the bullet he fired having ended up in the console between her and Smith.
Asked what happened after they fled the scene, Farr said they drove to San Francisco but she did not know what was said between defendant and V about what had occurred.
The officers continued to question Farr about the robbery plan, asking her if she was willing to risk everything if they talked to defendant and he gave them a different story. Farr insisted she was not in on a robbery plan and "was only on a date." The officers continued to ask what the plan had been—if she was going to set up the trick and defendant and V were going to come rob him and what defendant had told her about the plan—with Farr offering very little response.
When Farr would not provide further details about defendant's plan, the questioning turned to what Farr knew about defendant's gun. She reiterated that she first saw defendant with the gun was when he was standing next to Smith's car and pointing it through the window. The officers resumed questioning her about what she knew about defendant's plan, but she maintained that she did not have any advance knowledge of the robbery. Vass said he believed Farr was still covering up for defendant, and Rosin added, "[I]f I'm in the situation right here . . . [¶] . . . [¶] I'm gonna go, this is it and everything—he was here, he did this, I didn't have a plan, I did have a plan, it's him, let me go, I got a kid to see, that's it . . . ." Farr denied she was covering up anything.
The questioning then turned to the gun that was found in Farr's car that day after defendant had dropped her off at the courthouse. Farr denied knowing anything about it.
After a short break, the interview turned to the topic of defendant and his girlfriend. Farr said she thought they had broken up but she was starting to put everything together. Rosin confirmed they were still in a relationship and asked Farr if she still had feelings for defendant. She answered, "I did." Rosin said, "If I was your father, what I would tell you is, concentrate on your son," adding, "There's other men out there." Farr responded, "Right." This exchange occurred two hours forty minutes into the interview, and nearly an hour and a half after the first reference to Farr's son.
There followed further questioning about the gun found in Farr's car that day and the one found in the rental car in Davis. The officers obtained Farr's consent to download the contents of her cell phones, and with that, the interview concluded three hours after it began.
At defendant's preliminary hearing, Farr retracted her identification of defendant as the gunman, testifying instead that the shooter was her ex-pimp Prince. She testified she felt like the officers wanted her to say defendant was the shooter "because they were, like, pressuring me and stuff. They just wanted something and I was scared at the time." Asked by defense counsel if she felt like she had to tell them defendant was the shooter, she answered, "I felt like I had to tell them something." Asked why she did not identify Prince as the shooter, she answered, "Because I'm afraid of him."
Defense counsel and Farr also engaged in this exchange at the preliminary hearing:
"Q: Did you have any concerns about what was going to happen to your son if you didn't tell the officers who was the shooter?
"A: Yeah, I was thinking about him a lot.
"Q: What were your concerns about your son?
"A: Him getting tooken [sic] away or they'll find him because he was with my mom at the time.
"Q: Did the officers say anything to you about what would happen to your son during the course of that interview?
"A: No, but they kept bringing my son up, though, like, you know, 'think about your son; think about your son.' "
Farr further testified at the preliminary hearing that she thought she would be arrested for Smith's murder if she did not identify the shooter, and if she were locked up she would not be able to see her son.
2. Analysis
Defendant contends that Farr's statement to the police identifying him as the gunman was coerced—and thus inadmissible—because the police threatened her that she would lose her child if she did not identify the gunman. As such, he argues, defense counsel should have moved for exclusion of her statement and his failure to do so constituted ineffective assistance of counsel.
As a preliminary matter, the People contend defendant lacks standing to challenge the admissibility of Farr's statement. They cite People v. Williams (2010) 49 Cal.4th 405, 452 and People v. Badgett (1995) 10 Cal.4th 330, 343 to support their claim that "If Farr's statement was inadmissible, it was elicited in violation of her due process rights. A criminal defendant may not assert the constitutional rights of another person to challenge the admissibility of evidence." Defendant relies on the same cases, and others, to support his counterargument that "A criminal defendant has standing to move to suppress a statement made by a witness, when it was obtained by unconstitutional coercion. That is because defendant has standing to assert that his own due process rights to a fair trial were violated when a witness's statement was obtained by improper coercion." Defendant's reasoning is correct: while a defendant "generally lacks standing to complain that a police interrogation violated a third party witness's Fifth Amendment privilege against self-incrimination or Sixth Amendment right to counsel," a defendant may assert his "own right to due process of the law and a fair trial based upon third party witness coercion, however, if the defendant can establish that trial evidence was coerced or rendered unreliable by prior coercion and that the admission of this evidence would deprive the defendant of a fair trial." (Williams, at pp. 452-453; accord, Badgett, at pp. 343, 347-348.) That is the claim defendant asserts here: his due process right to a fair trial was violated by the introduction at trial of Farr's coerced statement. Defendant thus has standing to raise this issue. Nevertheless, his argument fails on the merits, as he has not demonstrated the statement was coerced.
The People also argue defendant forfeited this challenge by failing to object below to Farr's statement to the police. Defendant is not arguing the trial court erred in allowing the evidence, in which case an objection below would have been necessary to preserve it for appeal. Rather, he contends that because it was coerced, defense counsel was ineffective for failing to object to it. The forfeiture argument is thus misplaced.
The due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer by coercion. (People v. Neal (2003) 31 Cal.4th 63, 79.) "Coerced" and "involuntary" refer to a statement "obtained by physical or psychological coercion, by promises of leniency or benefit, or when the 'totality of circumstances' indicates the confession was not a product of the defendant's 'free and rational choice.' " (People v. Cahill (1993) 5 Cal.4th 478, 482, fn. 1.) "A confession is voluntary if the accused's decision to speak is entirely 'self-motived' [citation], i.e., if he freely and voluntarily chooses to speak without 'any form of compulsion or promise of reward . . . .' [Citation.] In deciding whether a statement is voluntary, 'it is immaterial whether the pressure or inducement was physical or mental and whether it was express or implied.' [Citation.] If the pressure or inducement was 'a motivating cause' of the decision to confess, the confession is involuntary and inadmissible as a matter of law." (People v. Thompson (1980) 27 Cal.3d 303, 327-328.)
To determine the voluntariness of a confession, courts apply a "totality of circumstances" test. (People v. Massie (1998) 19 Cal.4th 550, 576; accord, People v. Weaver (2001) 26 Cal.4th 876, 920.) Relevant to that test are the "surrounding circumstances including the characteristics of the accused and the nature of the interrogation." (People v. Hall (2000) 78 Cal.App.4th 232, 239.) "On appeal, our role when reviewing the trial court's determination that a confession was voluntary is similar to the standard applied in the Miranda context: we independently examine the record, but, to the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence." (People v. Weaver, supra, 26 Cal.4th at p. 921.) While we are not tasked here with reviewing the trial court's ruling on the voluntariness of Farr's statement, we must answer the same question: whether Farr's identification of defendant as the gunman was involuntary.
Defendant theorizes that the police coerced Farr into identifying him as the gunman because they threatened her with the loss of her son if she did not answer their questions. As he puts it, at the preliminary hearing, "Farr testified that while the police were trying to persuade [her] to talk, they told her several times, 'Think of your son.' She thought the police would arrest her if she did not tell them what they wanted to hear. When the police told her several times, 'Think of your son,' that made her afraid of what would happen to her son if she did not identify the shooter. Her son . . . was then aged 13. The officers' multiple references to 'Think of your son' made her fear that, if the police locked her up, she would not be able to see her son. Thus, the police made Farr be afraid that, if she did not answer the officers' questions, she would be incarcerated and she would lose her [son]." We have carefully reviewed the transcript of the police interview and reject defendant's assessment of the circumstances.
As shown above, the interview began with introductory questions, during which the officers learned Farr had a 13-year-old son. Vass commented that is a fun age and asked if he was "into everything," and Farr offered he had just won second place in a talent show and confirmed he lived in Texas with her mother. There was no further mention of the child until almost an hour into the interview, when Vass said defendant was "not going to jail because of prostitution, you know why he's going to jail, right? Right? 'Cause of this. Right? And I'm trying to figure out where you are involved. You have a son that's 13-years-old, that lost his mom." The next and final mention of Farr's son came nearly two hours and 45 minutes into the interview, when Farr admitted she had feelings for defendant, and Vass told her, "If I was your father, what I would tell you, is concentrate on your son." That is the sum total of the supposed "several times" the police told Farr to "Think of your son." Considered in context, and taking into consideration the "totality of the circumstances," these statements cannot reasonably be construed as threatening Farr with the loss of her child if she did not tell the police what they wanted to hear.
The first substantive reference to Farr's son—"You have a son that's 13-years-old, that lost his mom"—arose an hour into the interview when the officers were trying to determine the extent of Farr's involvement in the robbery that resulted in Smith's death: Was she a knowing participant or an innocent witness? If the former, she could be incarcerated, where she would be without her son. That was nothing more than a simple statement of fact made once in the course of a three-hour interview. (See People v. Ray (1996) 13 Cal.4th 313, 340 ["investigating officers are not precluded from discussing any 'advantage' or other consequence that will 'naturally accrue' in the event the accused speaks truthfully about the crime"].) This was not a "psychological ploy[]" that was so coercive as to render Farr's statement unreliable. (Ibid.)
Rosin made the second reference to Farr's son—"If I was your father, what I would tell you, is concentrate on your son"—at the end of the three-hour interview, well after Farr had described defendant's role in Smith's murder. As such, it could not possibly have influenced her prior identification of him as the gunman. Timing aside, Rosin made the comment as they were talking about defendant's ongoing relationship with his girlfriend Ballard, about whom Farr had just learned. When she admitted she still had feelings for defendant, Rosin gave her fatherly advice: move on from defendant because "[t]here's other men out there" and concentrate on her son. There was nothing threatening or coercive about this.
Defendant cites Lynumn v. Illinois (1963) 372 U.S. 528 (Lynumn), People v. Trout (1960) 54 Cal.2d 576 (Trout), and United States v. Tingle (9th Cir. 1981) 658 F.2d 1332 (Tingle) to support his claim that "When the police threaten a witness or suspect that her child will be taken away from her if she does not answer their questions, that renders the witness' statement involuntary . . . ." While that may be a correct statement of the law, it does not apply here, as neither Vass nor Rosin made any threats suggesting that Farr's son would be taken away from her if she did not answer their questions. Moreover, the facts of Lynumn, Trout, and Tingle are vastly different than what transpired in Farr's police interview.
In Lynumn, 372 U.S. 528, defendant was arrested for possession and sale of marijuana. She first told the arresting officers she had not sold any marijuana and the alleged buyer was merely repaying a loan. After further interaction with the officers, she told them she had in fact sold marijuana to the buyer. (Id. at pp. 529-530.) At trial, she once again denied the sale, describing the following circumstances of her confession: " 'I told [one officer] I hadn't sold [to the buyer]; I didn't know anything about narcotics and I had no source of supply. He kept insisting I had a source of supply and had been dealing in narcotics. I kept telling him I did not and that I knew nothing about it. Then he started telling me I could get 10 years and the children could be taken away, and after I got out they would be taken away and strangers would have them, and if I could cooperate he would see they weren't; and he would recommend leniency and I had better do what they told me if I wanted to see my kids again. The two children are three and four years old. Their father is dead; they live with me. I love my children very much. I have never been arrested for anything in my whole life before. I did not know how much power a policeman had in a recommendation to the State's Attorney or to the Court. I did not know that a Court and a State's Attorney are not bound by a police officer's recommendations. I did not know anything about it. All the officers talked to me about my children and the time I could get for not cooperating. All three officers did. After that conversation I believed that if I cooperated with them and answered the questions the way they wanted me to answer, I believed that I would not be prosecuted. They had said I had better say what they wanted me to, or I would lose the kids. I said I would say anything they wanted me to say. I asked what I was to say. I was told to say "You must admit you gave [the buyer] the package" so I said, "Yes, I gave it to him." ' " (Id. at pp. 531-532.) The officers' trial testimony corroborated defendant's description of the circumstances of her confession. (Id. at pp. 532-534.)
The United States Supreme Court held that the confession had been coerced in violation of defendant's constitutional rights: "It is thus abundantly clear that the [defendant's] oral confession was made only after the police had told her that state financial aid for her infant children would be cut off, and her children taken from her, if she did not 'cooperate.' These threats were made while she was encircled in her apartment by three police officers and a twice convicted felon who had purportedly 'set her up.' There was no friend or adviser to whom she might turn. She had no previous experience with the criminal law, and had no reason not to believe that the police had ample power to carry out their threats. [¶] We think it clear that a confession made under such circumstances must be deemed not voluntary, but coerced." (Lynumn, supra, 372 U.S. at p. 534.)
Trout, supra, 54 Cal.2d 576 involved not threats about the defendant's children, but rather the detention of his wife to coerce his confession. Defendant, who had confessed to being a lookout for an armed robbery, testified at trial that the police had told him multiple times that his wife, who was uninvolved in the robbery but had been arrested with him in their home, would be allowed to go home and be with their children if he confessed. He also testified that his wife had been allowed to briefly talk to him while they were both in custody and had told him she had been taken home for a short while, the baby cried when she left, and she "wanted to go home and 'just couldn't bear it.' " (Id. at p. 580.) The wife testified the police told her she belonged at home with the children and she could go home if her husband told them what he knew and she conveyed " 'that message' " to him. (Id. at p. 581.) The wife's attorney and sister both testified that an officer told them the timing of the wife's release depended entirely on defendant. (Ibid.) The California Supreme Court held that defendant's confession resulted from improper pressure by the police because "the reasonable conclusion to be drawn from the undisputed facts is that the police held [the wife] in custody for the purpose of a securing a confession from defendant . . . ." (Id. at pp. 584-585.)
In Tingle, supra, 658 F.2d 1332, credit union employee Tingle was found bound and gagged at work one morning, the safe open and the money gone. She said she had been attacked by an unknown assailant who had tied her up and stolen the money. A federal agent accused her of lying, telling her he believed she and her boyfriend had staged the robbery. He listed the crimes of which she might be guilty, detailed the potential sentences for each crime, told her it would be in her best interest to cooperate because he would tell the prosecutor whether she did or not, and told her she would not, or might not, see her two-year-old child for a while if she went to prison. She ultimately confessed that her boyfriend and a friend of his had formulated a plan to stage a robbery of the credit union. The trial court denied her motion to suppress the confession. (Id. at pp. 1333-1334.)
The Ninth Circuit reversed, concluding that the interrogating agent's statements were "patently coercive": "We think it clear that the purpose and objective of the interrogation was to cause Tingle to fear that, if she failed to cooperate, she would not see her young child for a long time. We think it equally clear that such would be the conclusion which Tingle could reasonably be expected to draw from the agent's use of this technique. The relationship between parent and child embodies a primordial and fundamental value of our society. When law enforcement officers deliberately prey upon the maternal instinct and inculcate fear in a mother that she will not see her child in order to elicit 'cooperation,' they exert the 'improper influence' proscribed by Malloy[ v. Hogan (1964) 378 U.S. 1]. The warnings that a lengthy prison term could be imposed, that Tingle had a lot at stake, that her cooperation would be communicated to the prosecutor, that her failure to cooperate would be similarly communicated, and that she might not see her two-year-old child for a while must be read together, as they were intended to be, and as they would reasonably be understood. Viewed in that light, [the agent's] statements were patently coercive." (Tingle, supra, 658 F.2d at p. 1336.)
The facts of Lynumn, Trout, and Tingle are a far cry from what happened here. There was no threat that Farr's son would be taken away or she would lose any financial assistance if she did not cooperate; no threat of a potentially long sentence that would keep her from her son if she did not identify defendant as the gunman; no detention of a loved one whose release hinged on her confession; simply no threat in anyway related to her son. In short, the officers did not pray upon Farr's maternal instinct to improperly coerce her into implicating defendant. And because a motion to exclude Farr's statement would have thus been futile, defendant's ineffective assistance of counsel claim necessarily fails. (People v. Thompson (2010) 49 Cal.4th 79, 122 [counsel is not ineffective for failing to make frivolous or futile motion]; People v. Cudjo (1993) 6 Cal.4th 585, 616 [where there is no sound legal basis for objection, counsel's failure to object cannot establish ineffective assistance].)
B. The Trial Court Did Not Err in Denying Defendant's Suppression Motion
1. Background
Defendant moved to suppress all evidence recovered during the September 23, 2016 search of the car in Davis, including the murder weapon, on the ground that there was no applicable exception to the warrant requirement because he was not on parole at the time and the officers "should have taken steps to confirm [his] parole status prior to conducting the search."
The prosecutor filed written opposition, first arguing that the officers had probable cause to search the car once defendant said he was on parole, even though he was mistaken, because they relied in good faith on his representation. Alternatively, he argued the officers had probable cause to search the car for contraband based on the odor of marijuana and defendant's acknowledgement there was marijuana in the car.
Defendant's motion came on for hearing on April 9, 2018. The prosecutor called Davis Police Sergeant Eric Labbe to testify, which testimony was as follows:
On September 23, 2016, then Corporal Labbe was on patrol with his partner, Corporal Mike Moore. At approximately 1:18 a.m. in the morning, they came upon a car stopped on the side of road leading to a freeway onramp in a very dark, rural area of Davis with no nearby businesses. They pulled up and stopped about 20 feet behind the car. They intended to approach it and determine what was going on, since, according to Labbe, he had "contacted many motorists out there that are stranded, flat tires, waiting for AAA, needing us to call a truck for them . . . persons out there for drugs and many other things, stolen vehicles." Once behind the car, Labbe activated his flood lights, and the officers could see there were at least two people in the car.
Labbe and Moore got out and walked up to the car, Labbe on the driver's side, Moore on the passenger side. Labbe, who had activated his body camera just before getting out of his patrol car, made contact with defendant, who was sitting in the driver's seat. Lea Farr was in the front passenger seat. Labbe asked defendant for his driver's license, and while he was looking for it, Labbe asked him if he was on parole or probation. Defendant responded, "Nah." While defendant continued to look for his license, Labbe detected the odor of burnt marijuana coming from the car. He asked defendant about the smell, and defendant said he had not been smoking marijuana. He admitted he does smoke marijuana but not when he is driving. After the discussion about marijuana, defendant stated he was on parole, adding that it was for assault with a machine gun in Solano County. After defendant stated he was on parole, Labbe asked if he had any "dope" in the car. Defendant responded that there was "a little marijuana."
In light of defendant's statement that he was on parole and his admission that there was marijuana in the car, defendant was ordered out of the car, handcuffed, and placed in the backseat of the patrol car, along with Farr. Labbe and Moore searched the car and found a marijuana cigarette, a nine-millimeter handgun under the front passenger seat, and ammunition in the trunk.
On cross-examination, defense counsel asked Labbe about protocol for determining if someone is on parole or probation. Labbe explained that he calls the dispatch center and provides the individual's name and date of birth or driver's license number, and dispatch runs a records check. On average, it takes one or two minutes to get a response. If the individual says he or she is not on parole, Labbe generally does not run a check through dispatch unless there were other indications giving him probable cause to search a vehicle, such as the smell of burnt marijuana. Labbe does not need a driver's license number to run the search, as a name and date of birth is the minimum information needed, but having a driver's license number makes it "a little bit easier, a little quicker . . . ."
When defendant told Labbe he was not on parole or probation, the officer considered confirming that with dispatch because defendant appeared "really nervous" and "was doing a lot of reaching around." According to Labbe, "At this point, I could smell the odor of burned marijuana. I felt there was more going on there, so I wanted to call his name in to find out if he did have any search status; if he was on parole, probation, and then further determine what the status was for." "[S]everal minutes" after defendant told Labbe he was on parole, Labbe learned from dispatch that he was not in fact on parole. In the interim, Labbe and Moore had searched the car. The video captured by Labbe's body camera confirmed the chronology.
Argument followed Labbe's testimony, with the prosecutor first arguing that the officers had two bases for searching the car: the smell of marijuana combined with defendant's confirmation that there was marijuana in the car, and defendant advising the officers that not only was he on parole but identifying the offense and county. According to the prosecutor, the fact defendant was wrong about his parole status did not render the search improper since the officers relied in good faith on the information provided by defendant.
Defense counsel argued that because this was a warrantless search, it required an exception to the warrant requirement, and the good faith exception advocated by the prosecutor did not apply. He contended that the officers should have exercised due diligence in confirming defendant's parole status given his inconsistent answers.
The court then ruled, first noting that the purpose of the Fourth Amendment is to deter illegal police conduct and thus the question was whether the officers did anything illegal. It rejected defendant's assertion that there was anything improper in the officers taking defendant at his word, concluding they acted in good faith in accepting his representation that he was on parole. Alternatively, the court concluded there were other factors that might have justified the search of the car, namely that the car was stopped on the side of a freeway entrance in the middle of the night and, once contacted by the officers, defendant appeared to be reaching around in the car, which raised security concerns, and the officers then detected the smell of burnt marijuana. The court also found that given defendant's statement that he was on parole for assault with a machine gun and the other circumstances, the officers were justified in handcuffing him during the search.
2. Analysis
Defendant argues in his opening brief that the warrantless search of the car was not justified as a parole search because he was not on parole at the time, nor was it justified by the smell of burnt marijuana. In a supplemental opening brief, he adds another theory: the initial detention was unsupported by a reasonable suspicion of criminal activity. We begin with the detention issue, addressing it over the People's objection that defendant forfeited it by failing to raise it below since that failure forms one of the bases for his ineffective assistance of counsel claim.
a. Standard of Review
The standard of review applicable to a ruling on a suppression motion is well established: "We 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; accord, People v. Long (1987) 189 Cal.App.3d 77, 82-83.)
b. Defendant Was Not Detained at the Outset of His Interaction with the Police
The detention of an individual in the context of the Fourth Amendment "involves a seizure of the individual for a limited duration and for limited purposes." (People v. Bailey (1985) 176 Cal.App.3d 402, 405 (Bailey).) In People v. Wilkins (1986) 186 Cal.App.3d 804 (Wilkins), the court summarized the law regarding what constitutes a detention: "It is well established that certain temporary seizures short of arrest based upon probable cause are justifiable under the Fourth Amendment where the officer subjectively has a reasonable and articulable suspicion based upon objective facts that the person to be detained is involved in crime which has occurred, is occurring, or is about to occur. [Citations.] 'Obviously, not all personal intercourse between police[ officers] and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.' [Citation.] '[Whenever] a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person.' [Citation.] A person has been 'seized' within the meaning of the Fourth Amendment when, in view of all of the surrounding circumstances, a reasonable person would have believed that he was not free to leave." (Id. at pp. 808-809.)
Our Supreme Court has provided guidance on this as well: "The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty, does a seizure occur. [Citations.] '[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.' [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer's display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer's request might be compelled. [Citations.] The officer's uncommunicated state of mind and the individual citizen's subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred." (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
We previously considered police detention in a "spotlight" case in People v. Garry (2007) 156 Cal.App.4th 1100 (Garry), where we applied the above legal framework to the following circumstances: A police officer was on patrol on a residential street when he saw defendant standing next to a parked car. He stopped his patrol car about 35 feet away from defendant, turned on the patrol car's spotlight, got out of his car, and "briskly" walked toward defendant—covering the 35 feet in " 'two and a half, three seconds . . . .' " As the officer was walking toward defendant, defendant, who looked nervous and shocked, started to back up and volunteered that he lived " 'right there,' " pointing to a nearby house. The officer responded that he wanted to confirm that and asked if he was on probation or parole. (Id. at p. 1104.) We concluded that under those circumstances, a detention occurred: "[Officer] Crutcher's testimony makes clear that his actions, taken as a whole, would be very intimidating to any reasonable person. Crutcher testified that after only five to eight seconds of observing defendant from his marked police vehicle, Crutcher bathed defendant in light, exited his police vehicle, and, armed and in uniform, 'briskly' walked 35 feet in 'two and a half, three seconds' directly to him while questioning him about his legal status. Furthermore, Crutcher immediately questioned defendant about his probation and parole status, disregarding defendant's indication that he was merely standing outside his home. In other words, rather than engage in a conversation, Crutcher immediately and pointedly inquired about defendant's legal status as he quickly approached. We think only one conclusion is possible from this undisputed evidence: that Crutcher's actions constituted a show of authority so intimidating as to communicate to any reasonable person that he or she was ' "not free to decline [his] requests or otherwise terminate the encounter." ' " (Id. at pp. 1111-1112.)
In reaching our conclusion in Garry, we surveyed a number of spotlight cases, discussing the circumstances under which courts have found detention versus no detention. The cases included People v. Roth (1990) 219 Cal.App.3d 211, 215, People v. Perez (1989) 211 Cal.App.3d 1492 (Perez), People v. Franklin (1987) 192 Cal.App.3d 935, People v. Rico (1979) 97 Cal.App.3d 124, and People v. McKelvy (1972) 23 Cal.App.3d 1027. (Garry, supra, 156 Cal.App.4th at pp. 1107-1110.) We find Perez compellingly analogous to the circumstances here. There, a police officer was in a patrol car when he noticed two people in an unlit car parked in a darkened corner of a motel parking lot known to be a site of drug dealing and prostitution. The officer stopped his patrol car head on to defendant's car, leaving room for defendant to drive away. He turned on the patrol car's high beams and spotlights but not its emergency lights. With the lights on, he was able to see that the car's occupants were slouched over in the front seat. He got out of his car, walked up to driver's window, knocked on the window with his flashlight, shined the flashlight in the car, and asked defendant to roll down the window. Defendant complied, and the officer ultimately arrested him and the passenger for drug possession and use. (Perez, at p. 1494.)
The Court of Appeal found that under these circumstances no detention had occurred. (Perez, supra, 211 Cal.App.3d at p. 1495.) In reaching this conclusion, it discussed two cases—Bailey, supra, 176 Cal.App.3d 402 and Wilkins, supra, 186 Cal.App.3d 804. (Perez, at p. 1495.) Bailey held a detention occurred where an officer in an unmarked police car pulled up behind a car in the parking lot of a closed store and turned on the police car's emergency lights (Bailey at pp. 404-406), while Wilkins held a detention occurred when an officer stopped his marked police car diagonally behind the defendant's car in a way that blocked defendant's car from exiting a parking lot. (Wilkins, at p. 809.) The Perez court then distinguished the circumstances of its case, which supported a finding of no detention: "Unlike Wilkins, the officer parked his patrol vehicle in front of defendant's vehicle and left room for defendant's car to leave. Unlike Bailey, the officer did not activate the vehicle's emergency lights; rather, he turned on the high beams and spotlights only. These differences are substantial because the conduct of the officer here did not manifest police authority to the degree leading a reasonable person to conclude he was not free to leave. While the use of high beams and spotlights might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention. [Citations.] Under these circumstances we, like the trial court, cannot conclude that use of the lights constituted a detention." (Perez, at p. 1496.) This result controls here: like the officer in Perez, Labbe and Moore pulled up to the car in which defendant and Farr were occupants, leaving room for them to drive away; like the officer in Perez, Labbe turned on the police car's spotlights; like the officer in Perez, the officers approached the car to speak to the occupants and ascertain what was going on. And unlike Bailey and Wilkins, Labbe did not turn on the police car's emergency lights or park in such a manner as to obstruct defendant's departure. Under these circumstances, we conclude that Labbe and Moore "did not manifest police authority leading a reasonable person to conclude he was not free to leave." (Perez, at p. 1496.)
The impetus for defendant's supplemental briefing raising his detention claim was the publication of People v. Kidd (2019) 36 Cal.App.5th 12 (Kidd) just over a month after he filed his opening brief. Acknowledging that his supplemental argument "is based in substantial part" on Kidd, he discusses the case at length and submits it compels a conclusion that he was detained without reasonable suspicion of criminal activity. We are not persuaded.
In Kidd, supra, 36 Cal.App.5th 12, at 1:30 a.m., a police officer in a marked police car saw a car with two occupants parked on a residential street with its fog lights on. He drove past the car, made a U-turn, parked about 10 feet behind the car, and pointed two spotlights at it. The officer got out of his car and approached the parked car, detecting a strong marijuana odor as he approached the driver's side of the car. When he reached the driver's window, he shined his flashlight in the car and asked the occupants what they were doing. He ultimately determined the driver was on probation with a search term, and a search of the car uncovered drugs and a pistol, among other items. (Id. at p. 15.) According to the Fourth Appellate District, these circumstances constituted a detention: "Taking into account the totality of the circumstances, we find that Kidd was detained when the officer made a U-turn to pull in behind him and trained spotlights on his car. The officer did not block Kidd's car in, and he did not illuminate his colored emergency lights, so as to unambiguously signal a detention. Nevertheless, motorists are trained to yield immediately when a law enforcement vehicle pulls in behind them and turns on its lights. Regardless of the color of the lights the officer turned on, a reasonable person in Kidd's circumstances 'would expect that if he drove off, the officer would respond by following with red light on and siren sounding . . . .' [Citation.] Moreover, any ambiguity was removed when the officer more or less immediately exited his patrol vehicle and began to approach Kidd's car. Although the officer's approach was, according to record, not made in a particularly aggressive or intimidating manner, a reasonable person in Kidd's circumstances would not have felt free to leave." (Id. at pp. 21-22.)
In reaching the above conclusion, Kidd relied on our opinion in Garry and also cited some of the cases we discussed there. Curiously, though, it makes no mention of Perez, going so far as to state it has "not discovered any case on indistinguishable facts." (Kidd, supra, 36 Cal.App.5th at p. 21.) We are hard pressed to understand how Perez is distinguishable on any meaningful fact: in both cases, an officer driving a marked police car spotted a parked car in a dark area, stopped his car in a position that provided sufficient space for the parked car to leave, shined two spotlights (and high beams in Perez) on the parked car, got out of the patrol car, and approached the car on the driver's side. Kidd and Perez reached contrary results on these indistinguishable facts—Kidd finding a detention, Perez finding no detention. We believe Perez reached the proper conclusion and decline to follow Kidd.
The implication of Kidd is that an officer may not stop a marked police car behind a parked car at night, shine a spotlight on the car, and approach the car without triggering Fourth Amendment concerns. So when a police officer on patrol comes upon a car parked in a dark, isolated area and stops to investigate whether the driver is in need of automotive assistance or has suffered a medical emergency or is a pregnant woman in labor and instead discovers illegal conduct, under Kidd, evidence of that crime may be inadmissible simply because the officer activated his or her spotlight in order to illuminate the car. While we agree a person in such circumstances might feel he or she is the "object of official scrutiny" (Perez, supra, 211 Cal.App.3d at p. 1496), we disagree with Kidd that a detention occurs under such circumstances.
We also believe Kidd's reliance on Garry is misplaced. As noted above, Garry involved a pedestrian, rather than a parked car, and a police officer who "briskly" covered the 35 feet between the patrol car and defendant while speaking to defendant. (Garry, supra, 156 Cal.App.4th at p. 1104.) That was dissimilar to the situation in Kidd and here.
In short, and as Kidd itself recognized, the issue of detention requires a "fact-intensive analysis . . . ." (Kidd, supra, 36 Cal.App.5th at p. 21.) Under the facts here, we conclude defendant was not detained by Officers Labbe and Moore when they approached the car he and Farr occupied.
Because we reject defendant's claim that he was unlawfully detained, his ineffective assistance of counsel claim based on his counsel's failure to assert this detention as the basis for his suppression motion, as asserted in his habeas corpus petition, also fails.
c. The Officers Had Probable Cause to Search the Car
Defendant's alternative theory for suppression of the murder weapon and other evidence found in the rental car is that the officers lacked probable cause to search the car. This argument is twofold: first, the search was not justified as a parole search because defendant was not on parole and, second, it was not justified by the smell of burnt marijuana. We agree with the trial court that the officers relied in good faith on defendant's representation that he was on parole and they thus had probable cause to search the car.
As noted, defendant first told Officer Labbe that he was not on parole and then shortly changed his story and said he was on parole. The officers searched the car and found the murder weapon. Under analogous circumstances, a court has upheld such a search as coming within the good faith exception to the exclusionary rule.
In In re Jeremy G. (1998) 65 Cal.App.4th 553 (Jeremy G.), a minor erroneously told a police detective he was searchable for weapons, and the detective searched the minor's apartment and discovered contraband. It was later stipulated the minor was not in fact subject to a search condition. (Id. at p. 555.) The Court of Appeal held that the trial court improperly granted the minor's suppression motion, reasoning as follows: "The question here is not whether the minor had a searchable condition attached to his release; rather the question is whether Officer Butterfield was reasonable in relying on the minor's statement that he had such a condition. [¶] Officer Butterfield's reliance on the minor's statement that he was searchable for weapons was reasonable. The minor was 16 years old, and nothing in the record shows he exhibited signs of immaturity or lack of normal intelligence. Given this state of the record, Officer Butterfield could reasonably believe the minor was aware of his legal circumstances and would not make a statement against his interest unless it was true. Indeed, it has long been recognized that statements made against one's interests, for that very fact, are reliable. (See Evid. Code, § 1230—declaration against interest constitutes exception to the hearsay rule.) Since Detective Butterfield was reasonable in relying on the minor's statement, and therefore was entitled to conduct the search, the juvenile court erred in granting the suppression motion." (Id. at p. 556.)
Likewise here, defendant represented he was on parole, and it was objectively reasonable for Labbe to believe that defendant, who was apparently under the mistaken belief that he was still on parole, initially lied about his parole status in an effort to avoid a search but then realized his parole status could be confirmed and decided to be truthful.
Defendant's parole had very recently terminated.
Despite the holding of Jeremy G., defendant contends the good faith exception to the exclusionary rule does not apply here. He attempts to distinguish United States v. Leon (1984) 468 U.S. 897, which, together with Illinois v. Krull (1987) 480 U.S. 340 and Arizona v. Evans (1995) 514 U.S. 1, modified the exclusionary rule to allow the admission of evidence seized in reasonable, good-faith reliance on a search warrant, even if the warrant was subsequently found to be defective. As defendant would have it, this good faith exception "applies when an officer relies in good faith on a warrant, or document, or record, which is later shown to be incorrect or invalid. However, that exception does not apply here. Officer Labbe did not rely on any records or documents to establish the claimed right to a parole search." There is no rational reason a representation by a defendant that he is subject to search should be treated any differently than a defective warrant. In both instances, enforcement of the exclusionary rule would serve no purpose since the rule " 'necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct . . . .' " (Leon, at p. 919.) Contrary to defendant's assertion, there is no indication of willful or negligent conduct here. And, as discussed, Jeremy G. recognizes that the good faith exception extends to the circumstances here.
Defendant also attempts to distinguish Jeremy G. on the ground that the minor in Jeremy G. stated only that he was subject to a search condition, while defendant first said he was not on parole before saying he was on parole. According to defendant, "Given the fact that [he] said two opposite things, and given the ease and rapidity with which the officer could have run a records check on [defendant], the officer could not reasonably rely on [defendant's] second statement that he was on parole." We disagree. As recognized by Jeremy G. and the declaration against interest exception to the hearsay rule, it was reasonable for the officers to accept defendant's second statement as reliable since it was against his interest.
Given this conclusion, we need not consider whether the search was justified by scent of burnt marijuana and defendant's admission that there was marijuana in the car.
C. The Trial Court Did Not Err in Admitting Text Messages Exchanged Between Defendant and "Vinny"
1. Background
On April 27, 2018—after jury selection had begun but before the presentation of evidence commenced—the prosecutor filed a motion seeking admission of uncharged acts pursuant to Evidence Code section 1101, subdivision (b). Specifically, because one theory for the motive behind defendant's murder of Smith was robbery, he sought to introduce a series of texts exchanged between defendant and someone listed in defendant's phone contacts as "Vinny" that spanned from September 30 (the day after defendant was released on bail following his September 23 arrest) to November 3, 2016 (the day of his arrest for Smith's murder). In the text messages, defendant and Vinny discussed using a firearm to commit robberies. The text exchanges included the following:
October 1:
Defendant: damn nigga I wish I had a thang on me there's a lot of potential in this town.
Vinny: I can see if h tryna slide out there tomorrow or try to get one
Defendant: Yup we can do that
October 3 and 4:
Defendant: Damn I wish I had hamma right now. . I'm at chase and this nigga just pulled 4200 out
Vinny: bruh waaaat lets beat up wya?
Defendant: haa he gone now I'm in ff but there's hella Mexican pulling 6 n 8
Vinny: hunny?
Defendant: Yup
October 21, 2016:
Defendant: Where u at. wut happened with the hammer
October 26, 2106:
Vinny: wassup wit bruh for the hamma
Defendant: He bought something else for five
October 27, 2016:
Defendant: what we doing? I need it today
Vinny: maan me too whass hannin we gotta plot on sumbody coming out a bank
Defendant: Hell yea I was in natomas yesterday I seen someone pull like 300 I followed him home but he parked the garage hella quick
Vinny: its gone be some people pulling stacks if we go on there
October 30 through November 3, 2016:
Defendant: hit me when you slide back this way
Defendant: Where you at
Defendant: L at the club if you up. it's three of em wit doe tho Imma need a second for it
Vinny: another ham?
Defendant: idk but three ppl and they bloods so. . . .
Vinny nigga we ain't got no other blick and they got at least 2 on them
Defendant Maybe. . but they ain't gonna move once we whip out. . n whoeva move get fed
Defendant: Grab me a bag when you slide out [h]ere
Vinny: call me with the details
In support of the motion, the prosecutor argued that these text exchanges showed defendant's intent to commit a robbery, motive, and a common plan or scheme. The probative value, he contended, outweighed any possible prejudice under Evidence Code section 352.
The motion was heard on May 4, 2018. Defense counsel opposed introduction of the text messages on multiple grounds. First, he contended the prosecutor's attempt to introduce them was untimely since it was now the third day of trial and seven witnesses had already testified. He acknowledged he had previously received a disk containing the contents of defendant's cell phone but the prosecutor had not identified specific messages he intended to introduce. The prosecutor responded that the information had been in the possession of the defense for quite a while, although he acknowledged he had not drawn defense counsel's attention to the specific messages until recently because the contents of defendant's phone were the most "dense" he had ever come across, containing 36,000 photos alone.
Second, defense counsel argued that for prior bad acts to be admissible under Evidence Code section 1101, subdivision (b), they had to be trustworthy enough not to cause undue prejudice to defense, which typically means charges or arrests that can be proven in court. Here, he submitted, the text exchanges were merely conversations that did not "particularly make sense" and lacked trustworthiness.
Third, he argued that because the text exchanges occurred weeks after Smith's murder, they were not probative of defendant's state of mind before or at the time of the crime.
The court ruled the text messages were admissible, analyzing it in terms of undue prejudice under Evidence Code section 352. The conversations, according to the court, had substantial probative value related to motive, intent, and modus operandi, and the question was whether that substantial probative value was substantially outweighed by undue consumption of time or a substantial danger of undue prejudice. Answering both questions in the negative, and finding that the question of whether Vinny was the "V" mentioned by Farr went to the weight of the evidence, it concluded the conversations were admissible.
The court left open the question of whether it would give CALCRIM No. 375, which would instruct the jury that it could not conclude from evidence of uncharged offenses that defendant was a person of bad character regarding prior bad acts. It acknowledged, however, that the conversations did not constitute "offenses."
At trial, an FBI computer forensics technician testified that the above-detailed messages had been recovered from defendant's cell phone.
2. Analysis
We review a trial court's evidentiary rulings for abuse of discretion. (People v. Sãnchez (2016) 63 Cal.4th 411, 453; People v. Cage (2015) 62 Cal.4th 256, 274.) There was no such abuse here.
First, we reject defendant's claim that the prosecutor's disclosure of the texts was untimely. Sections 1054.1 and 1054.7 require the prosecutor to produce to the defense certain categories of materials and information in the possession of the prosecution or investigating agencies. Such discovery disclosures must be made at least 30 days before trial unless good cause is shown why a disclosure should be denied, restricted, or deferred. If a party comes into possession of material or information within 30 days of trial, disclosure must be made immediately unless good cause exists for denial, restriction, or deferral of its disclosure. (§§ 1054.1, subd. (c), 1054.7) When there is an untimely disclosure of evidence, the trial court make an order necessary to enforce the disclosure provisions, including a continuance of the matter or delaying or prohibiting the testimony of a witness or the presentation of real evidence. (§ 1054.5, subd. (b).) There was no discovery violation here, as defense counsel admitted at the May 4 hearing he had previously received disks containing the contents of defendant's cell phone. He contends that was inadequate because "[i]mplicit in this discovery requirement is that the prosecutor must not only supply discovery material 'in bulk' to the defendant, but that the prosecution must inform the defendant, 30 days prior to trial what specific evidence it intends to use, and how it intends to use it." With no citation to supporting authority, his interpretation reads into the discovery statutes a requirement that does not exist.
Further, defense counsel had been aware for nearly a month and a half that the prosecutor was reviewing the text messages to determine whether any were relevant and admissible. At a March 19, 2018 hearing on motions in limine, defense counsel advised the court, "The defendant requests a hearing on the admissibility of the defendant's cellphone messages, text and/or images pursuant to Evidence Code 352. I know that the prosecution is, I believe, currently looking through the messages, text messages and images. And if there were to be any of those selected as being relevant, I would just want to have a hearing on: One, the relevancy; and two, make an argument on prejudicial versus probative value . . . ." Asked whether he intended to introduce defendant's text messages, the prosecutor answered, "The dump and that's I think what Mr. Stallworth [defense counsel] is getting to and I will have that to him before April 9th. And I can even separate from the normal photo binder so he knows exactly where communications and photographs that were retrieved from the cellphone dump, and this is the biggest one I've seen as far as it doesn't even fit on the disk. And the images on it, there's 36,000 photographs that I think I'm through at this point, but it's very labor intensive. Nevertheless, I'll provide Mr. Stallworth April 9th, a separate binder or separate file to say this is the information that's taken off the defendant's phone when he was arrested and this is why I'm seeking to introduce it, and then we can present that to you the week of April 9th." While the record does not reflect whether the prosecutor in fact provided the information by April 9, April 9 was within 30 days of the commencement of trial, and defense counsel lodged no timeliness objection at that point.
In fact, the court and parties anticipated assembling a jury panel on April 10.
Second, we question whether the text messages even fall within the scope of Evidence Code section 1101. That statute concerns the admissibility of a "evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . other than [defendant's] disposition to commit such an act." (Evid. Code, § 1101, subd. (b).) The disputed evidence here—the text messages—was not "a crime, civil wrong, or other act," and neither defendant nor the prosecutor provides any authority suggesting that this is the kind of evidence contemplated by the statute. Instead, we think the evidence is analyzed under the traditional standard for the admissibility of evidence: was it relevant and, if so, was it more probative than prejudicial? (Id., §§ 210, 350-352.)
Third, the trial court's finding that the text exchanges were relevant was well founded. Evidence is relevant if it " 'tends "logically, naturally, and by reasonable inference" to establish material acts such as identity, intent, or motive.' " (People v. Benavides (2005) 35 Cal.4th 69, 90.) Farr told the police that she had ridden with "V" and defendant to the area of Smith's murder and that defendant had approached Smith's car with a gun and communicated with Smith in a manner that suggested he intended to rob him. Nine days after the murder, the murder weapon was found in defendant's possession. He was arrested and bailed out, at which time he began exchanging texts with "Vinny" about obtaining a gun and committing armed robberies, which was what the prosecution theorized was the motive behind defendant's murder of Tony Smith.
Fourth, defendant has not demonstrated that the evidence was more prejudicial than probative. Relevant evidence may be excluded at the trial court's discretion if "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352; People v. Richardson (2008) 43 Cal.4th 959, 1001.) "Undue prejudice" within the meaning of Evidence Code section 352 is not synonymous with "damaging." (People v. Bolin (1998) 18 Cal.4th 297, 320.) All evidence that tends to prove guilt is prejudicial or damaging to the defendant's case. (People v. Cage (2015) 62 Cal.4th 256, 275; People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Rather, the prejudice that Evidence Code section 352 seeks to avoid is that which " ' "uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." ' " (Gionis, supra, 9 Cal.4th at p. 1214.) That was not the case here.
Fifth, and finally, even if the trial court abused its discretion in admitting the text messages, defendant has not demonstrated he was prejudiced by the error. Defendant's defense was one of identity—that he was not the gunman who fired the fatal shot at Tony Smith. There was ample evidence that in fact he was the gunman, including his possession of the murder weapon, Farr's statement to Vass and Rosin identifying him as the gunman, his palm print found on Smith's driver's door, the phone records that placed him in the area of Smith's murder at the time of the murder, and the internet searches on his phone regarding a September 14 murder in Oakland. Even had the text messages been excluded, it is not reasonably probable he would have obtained a more favorable result in light of this evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.)
D. The Matter Must Be Remanded for Resentencing to Permit the Trial Court to Exercise Its Discretion to Either Strike or Impose the Five-Year Enhancement for Defendant's Prior Serious Felony Conviction
Section 667, subdivision (a)(1) provides that a "person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately." At the time of defendant's sentencing in September 2018 the imposition of this five-year enhancement was mandatory. (Former § 1385, subd. (b).) Accordingly, the trial court imposed the mandatory five-year enhancement, stating that it did not have the discretion to strike it. Effective January 1, 2019, however, amendments to the Penal Code gave the trial courts discretion to dismiss a section 667 enhancement. (Stats. 2018, ch. 1013 § 1 (SB 1393); § 1385.) Defendant contends application of the amendment is retroactive and the matter must be remanded so the trial court can exercise its discretion regarding imposition of the prior serious felony enhancement.
The People do not dispute the retroactive application of the amendment. They contend, however, that remand is unwarranted because "the trial court's remarks at sentencing clearly reflect that it would not have dismissed the prior even if it had authority to do so." This is so, according to the People, because the court struck defendant's prior strikes but declined to strike the 25-year, personal-use-of-a-firearm enhancement on the murder charge, noting that it had the discretion to do so but chose not to because it had already granted defendant sufficient relief by striking his strikes.
As has been recognized many times with respect to amendments to other sentencing provisions, remand for resentencing "is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; accord, People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428 ["remand is proper because the record contains no clear indication of an intent by the trial court not to strike one or more of the firearm enhancements"].) As the Supreme Court stated in People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8, "Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record. [Citation.]"
We do not view the record here as definitively as the People. While the trial court indeed declined to exercise its discretion to strike the 25-year, personal-use-of-a-firearm enhancement, expressly stating that it declined to do so because defendant had benefitted sufficiently from it striking his prior strikes, we do not understand this to be a definitive declaration that the court would decline to strike any enhancement. In other words, the record does not foreclose the possibility that the court may have stricken a shorter enhancement if it had the discretion to do so.
E. No Cumulative Prejudice
Because defendant has not demonstrated error, he suffered no cumulative prejudice.
DISPOSITION
The matter is remanded for the sole purpose of allowing the trial court to exercise its discretion to impose or strike the Penal Code section 667 enhancement. The judgment of conviction is affirmed in all other respects. By separate order of today's date, we also deny defendant's petition for writ of habeas corpus.
/s/_________
Richman, J. I concur: /s/_________
Stewart, J. Kline, P.J., Concurring
My misgiving about the majority opinion relates solely to my colleagues' determination that "defendant was not detained by Officers Labbe and Moore when they approached the car he and Farr occupied."
Personally, I consider it fanciful to think a reasonable person in defendant's shoes would believe he or she was free to leave. As I see it, the conduct of the two officers " 'would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.' " (In re Manuel G. (1997) 16 Cal.4th 805, 821.) That belief compels me to think there was an improper detention.
However, though I believe the relevant caselaw is confusing and in need of clarification, I cannot deny its existence and that it supports my colleagues' analysis and determination.
Solely for that reason, I concur in the majority opinion, albeit reluctantly. /s/_________
Kline, P.J