Opinion
A158964
06-21-2021
THE PEOPLE, Plaintiff and Respondent, v. CARL NELSON, Defendant and Appellant.
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. SCN-221970
Petrou, Acting P.J.
Defendant Carl Nelson appeals from a judgment after a jury found him guilty of assault with a deadly weapon, criminal threat, and firearm-related charges. He contends that the trial court erred by (1) denying his motion to suppress the revolver seized during a search of his recreational vehicle (RV) as the automobile exception to the Fourth Amendment's warrant requirement did not apply to the RV; and (2) denying his motion to exclude the statement made during a post-arrest interview as involuntary and in violation of his constitutional rights. We affirm.
Factual and Procedural Background
Defendant was charged with attempted murder with an enhancement for personal discharge of a firearm resulting in great bodily injury (Pen. Code §§ 187, 664, 12022.53, subd. (d)); assault with a deadly weapon with enhancements for personal use of a firearm and infliction of great bodily injury (§§ 245, subd. (a)(2), 12022.5, subd. (a), 12022.7, subd. (a)); two counts of making criminal threats with an enhancement for personal use of a firearm (§§ 422, 12022.5, subd. (a)); four counts of possession of a firearm with prior conviction (§ 29900, subd. (a)); possession of ammunition (§ 30305, subd. (a)(1)); and four counts of possession of a firearm by a felon (§ 29088, subd. (a)(1)). The information alleged that defendant had two prior voluntary manslaughter convictions (§§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)), two prior serious felony convictions (§ 667, subd. (a)(1)), and had served six prior prison terms (§ 667.5, subd. (b)).
Unless otherwise indicated, all further section references will be to the Penal Code.
A. Trial Testimony
The following is a brief summary of the trial evidence.
G.I. testified that, on the night of March 12, 2014, he met his friend C.H. at a bar in San Francisco. In the early morning hours of March 13, they left the bar and drove in separate cars to G.I.'s house but were unable to find parking. G.I. suggested they park on Alemany Boulevard so they could continue talking, because there were no cars or houses nearby. G.I. and C.H. parked their cars on Alemany Boulevard next to a gated parking lot for Excelsior Auto Care. G.I. and C.H. had been talking on the street for approximately 20 minutes when defendant came out of an RV parked in the Excelsior Auto Care lot. Defendant said: “ ‘Shut the fuck up. Get the fuck out of here, motherfuckers.' ” G.I. told defendant to relax, but then noticed that defendant was holding a gun. G.I. then said: “ ‘Relax. You're not going to shoot anybody over this.' ” Defendant shot G.I. in the knee. As G.I. was trying to take cover on the other side of the cars, defendant said: “ ‘I'm going to kill you guys. I'm going to kill you. I'm going to kill you.' ” Defendant also said: “ ‘I've killed before and I could kill again.' ” C.H. began backing up and told defendant they were leaving. With G.I. in the backseat, C.H. drove his car to a nearby store while calling 911.
Pursuant to the California Rules of Court, rule 8.90, governing “Privacy in opinions, ” we refer to the victims by their initials only.
After police arrived at the scene of the shooting, defendant called 911. An audio recording of the call was played for the jury. Defendant told the dispatcher that he would not come out of his RV, as the police had ordered him to do, because he had heard officers say they were going to kill him; he wanted to wait until the owner of Excelsior Auto Care arrived so he would not be shot. Defendant's daughter testified that he called her, told her to turn on the news, and said that he was sorry. Defendant exited the RV several hours later and was taken into custody.
San Francisco Police Lieutenant Sean Perdomo testified that he and Sergeant Matt Sullivan interviewed defendant in custody. Prior to the interview, Perdomo had reviewed defendant's criminal history and learned of his convictions for voluntary manslaughter and assault with a firearm. During the interview, Sullivan told defendant that G.I. was not dead, and that it “could've been much worse” if defendant had killed G.I. Defendant responded: “Now, I would've liked that. I like killing people. Well, I did it before that - you know, brought it to me.” Perdomo described defendant's prior convictions as “a different story” and stated: “So guys were kicking in your door and you used your shotgun. Hey, I understand that. I think anybody can understand that.” Defendant asked if Perdomo and Sullivan knew how he felt. When Sullivan answered, “OG, ” defendant responded: “Thank you. I feel good.” Defendant stated that he “didn't do shit” and that “they got to come and they got the [sic] prove everything” because “you guys are tired and I'm tired.” Defendant then stated that he had been scared of G.I. and C.H. because they “looked like fuckin' skinheads” and “were buying goddamn drugs[.]” He admitted that he had shot G.I. once in the leg, but never intended to kill him. He stated that he had been woken up numerous times with his dog “going crazy.” He described the incident as a “disaster” and that no one was meant to get hurt. He said: “I just wanted my peace of mind and go to sleep. And that dog wouldn't let me and them motherfuckers wouldn't let me.”
Perdomo and Sullivan subsequently returned to the scene and searched defendant's RV pursuant to a warrant. They located three firearms: two handguns and a shotgun. According to Perdomo, however, C.H. had told him that defendant's gun looked like a revolver.
As defendant was being placed in the back of a police car for transport to jail, he asked Perdomo if he would search a false compartment in the sink area of the RV and retrieve $8,000 that defendant had hidden there. Perdomo conducted a second search of the RV a few weeks later, after it had been towed to an impound lot. After retrieving the cash, Perdomo looked in the garbage chute directly next to the false compartment. He pulled the garbage bag out of the chute and saw a red beanie hat with the handle of a firearm protruding out. He removed the firearm, along with five rounds of ammunition, and identified the gun as a revolver. Perdomo showed G.I. a photograph of the revolver, and G.I. identified it as the firearm used to shoot him.
While defendant was awaiting trial, a friend visited him in jail. The friend asked whether this had happened because defendant “probably got woken up for the seventh fuckin' time, ” and could have been avoided if defendant was in a different spot. Defendant responded: “And I wouldn't have had that problem. But you called it right though. I got woke up too many times.” Defendant later stated: “Spur of the moment stuff. So, I fucked up. It's alright.”
Defendant testified that his RV had been parked in the Excelsior Auto Care lot for approximately 10 months prior to the incident. He had an arrangement with the owner to “make sure people didn't come and trespass and mess with the automobiles and do graffiti and stuff like that.” Prior to this arrangement, defendant parked his RV on Alemany Boulevard and would move it to the other side of the street for street sweeping. In the early morning on March 13, 2014, defendant heard a commotion outside and saw two bald men on the sidewalk. He was scared because they looked like skinheads. He left his RV and, carrying his gun, told the men to “shut the F up and get the F out of here.” He testified that when G.I. said something like “ ‘We're not going to shoot over this,' ” G.I. was “going for his waist.” Defendant assumed that G.I. was going to shoot him and so defendant shot G.I. in the leg. When asked why he never told Perdomo and Sullivan that he thought G.I. was reaching for a gun, defendant stated: “Because I don't trust cops. ” He continued that he “really didn't want to tell them shit” but told them “a little bit of this and a little bit of that.”
B. Motion to Suppress Revolver
Defendant moved to suppress the revolver and related evidence seized during the second search of his RV on the basis that there was no warrant obtained for the search. At the hearing on the motion, Perdomo testified that a deputy sheriff was told by an inmate who was at intake with defendant that defendant had made statements regarding a firearm hidden inside the R.V. Perdomo did not apply for a search warrant for his second search because at that point, he “knew that it was an actual mobile home that was moveable” and “wasn't attached to any sort of utilities or up on blocks.” Perdomo testified regarding photographs he had taken of the RV and parking lot, which were admitted into evidence. The R.V. was on wheels and there were no other mobile homes in the Excelsior Auto Care parking lot.
The trial court denied defendant's motion. It found a sufficient showing had been made that the RV was “readily moveable” as the RV “was not stationary or on blocks or some other kind of foundation. It had all of its wheels. And it was able to be towed. It was-there was no evidence presented that it was attached in any way to any utilities that would have prevented its movement.” The trial court found that the parking lot “doesn't appear to be a public parking lot from the photograph, ” but also “is not a parking lot that appears to have other mobile homes.” It concluded that the RV fell within the automobile exception to the Fourth Amendment and thus a warrant was not required for the second search. The trial court also concluded that Perdomo had shown probable cause to search the RV “because of the incident and the identification that had been made related to the incident.”
C. Motion to Exclude Defendant's Statement
Defendant moved to exclude the statement he made in police custody on the grounds that the statement was involuntary and in violation of his Fifth Amendment right against self-incrimination. Defendant argued that he was operating on little sleep after being woken by the two men outside his RV and was in pain from a “deteriorating” spine. At the hearing on the motion, the prosecutor asked Perdomo: “Prior to taking any kind of statement from the defendant about the details of the incident on the night in question, did you advise him of his Miranda rights?” Perdomo testified: “I advised him of his Miranda rights, yes.” Perdomo also testified that defendant appeared coherent and responsive, and did not express that he was too tired to continue with the interview. Defense counsel did not cross-examine Perdomo, arguing that Perdomo's testimony was insufficient to establish that the defendant was properly advised of his rights. The trial court concluded that defendant's statement was admissible.
D. Verdict and Sentencing
The jury acquitted defendant of the attempted murder charge, but found him guilty on all remaining counts and found true the allegations that he had two prior strike convictions, two prior serious felonies, and had served six prior terms in prison. The trial court dismissed one prior strike conviction and two enhancements based on the remoteness in time of defendant's prior offenses. It then sentenced defendant to an aggregate 21-year prison term.
Defendant timely appealed.
Discussion
I. MOTION TO SUPPRESS REVOLVER
Defendant argues that the trial court erred by denying his motion to suppress the revolver seized during the second search of his RV. Specifically, he contends that the automobile exception to the Fourth Amendment's warrant requirement did not apply to his RV and there was no probable cause for the search.
“The standard of appellate review of a trial court's ruling on a motion to suppress 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.)
“A search without a warrant is presumed to be illegal.” (People v. Bishop (1996) 44 Cal.App.4th 220, 236.) “Once a defendant shows the search was warrantless, the burden shifts to the People to justify the search by establishing the search fell within an exception to the warrant requirement.” (Ibid.) Here, there is no dispute that Perdomo conducted a second search of defendant's RV without obtaining a second warrant. Pursuant to Perdomo's testimony, the People argue that this search was justified under the so-called “automobile exception.”
In California v. Carney (1985) 471 U.S. 386, 390 (Carney), the United States Supreme Court explained that an exception to the warrant requirement of the Fourth Amendment for search and seizures of automobiles has been recognized since 1925. It identified two rationales behind the application of such an exception to automobiles. (Id. at pp. 390-392.) First, the “ready mobility” of an automobile justifies a lesser degree of privacy interest protection, as compared to a stationary structure like a home, because an automobile “ ‘can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' ” (Id. at p. 390, quoting Carroll v. United States (1925) 267 U.S. 132, 153.) Second, the “pervasive regulation of vehicles capable of traveling on the public highways” results in reduced expectations of privacy in such vehicles. (Id. at p. 392.) “ ‘Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.' ” (Ibid., quoting South Dakota v. Opperman (1976) 428 U.S. 364, 368.)
These two justifications “ensure that law enforcement officials are not unnecessarily hamstrung in their efforts to detect and prosecute criminal activity, and that the legitimate privacy interests of the public are protected.” (Carney, supra, 471 U.S. at p. 395.) Carney reasoned that both of these justifications come into play where (1) a vehicle is readily capable of being used on the highways and (2) it is found stationary in a place not regularly used for residential purposes. (Id. at pp. 392-393.) Thus, Carney concluded that a mobile home parked in a downtown San Diego parking lot satisfied the automobile exception to the Fourth Amendment's warrant requirement. (Id. at pp. 388, 395.) While it did not decide the applicability of the exception to a motor home that was “situated in a way or place that objectively indicates it is being used as a residence, ” Carney noted that potential relevant factors in deciding whether a warrant was required in that scenario would include “whether the vehicle is readily mobile or instead, for instance, elevated on blocks, whether the vehicle is licensed, whether it is connected to utilities, and whether it has convenient access to a public road.” (Id. at p. 394, fn. 3.)
Defendant argues that, here, the two Carney factors were not met. We disagree. As to the first factor, there was substantial evidence to support the trial court's finding that defendant's RV was “readily moveable.” Defendant testified that, ten months before the incident, he had been moving the RV to different sides of the street for street sweeping. Perdomo's testimony, including about photographs he took at the scene, was that the RV had wheels and was not connected to any utilities or up on blocks at the time of the incident. There was no evidence that the RV could not be readily moved.
The fact that the RV was in an impound lot when the second search was conducted does not alter our conclusion. “[U]nder our established precedent, the ‘automobile exception' has no separate exigency requirement.” (Maryland v. Dyson (1999) 527 U.S. 465, 466.) Indeed, in Michigan v. Thomas (1982) 458 U.S. 259, 261, the United States Supreme Court held that the absence of “ ‘exigent circumstances' ” did not preclude the warrantless search of an impounded vehicle with probable cause. It explained: “the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court's assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.” (Ibid.)
As to the second factor, there was substantial evidence to support the trial court's finding that the RV was not in a residential location with other mobile homes. Defendant's RV was parked in a commercial lot in front of Excelsior Auto Care, pursuant to an arrangement with the owner that defendant guard the business' property. Perdomo testified that there were no other mobile homes in the lot. There was no evidence that “objectively indicates” that the RV was being used as a residence. (Carney, supra, 471 U.S. at p. 394, fn. 3.) We thus conclude that the trial court did not err in finding that defendant's RV was subject to the automobile exception.
Given our conclusion, we need not address defendant's additional arguments that (1) the warrant for the first search did not authorize the second search; and (2) the search of the garbage chute was beyond defendant's consent to search the false compartment.
Defendant also avers that, even if the automobile exception were applicable, there was no probable cause to conduct the search. He relies on Illinois v. Gates (1983) 462 U.S. 213 (Gates) for his argument that the information provided by the inmate regarding defendant's hidden firearm was insufficient for probable cause. Gates does not, however, support this position. As explained in Gates, a trial court asked to determine whether probable cause supported a search is “simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [it], including the ‘veracity' and ‘basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Id. at p. 238.) In that case, an anonymous letter had been sent to the police department accusing the defendants of selling drugs. (Id. at p. 225.) Gates concluded that the letter was sufficient to establish probable cause to search the defendants' car and house because the letter contained details regarding the defendants' future actions that were not easily predicted and had been corroborated by investigative work. (Id. at p. 246.) Here, unlike Gates, the jail informant and his relationship to defendant were known-the inmate reported defendant's statements to the deputy sheriff and was at intake with defendant. In any event, the information provided by the inmate was corroborated by C.H.'s identification of the gun used to shoot G.I. as a revolver, a type of firearm that had not been found in the first search of the RV. Thus, the trial court had a substantial basis to find that there was probable cause for the second search of defendant's RV. (Id. at p. 239.)
In sum, we conclude that the trial court did not err in denying defendant's motion to suppress the revolver seized during the second search of the RV.
Having determined there was no error, we need not address defendant's argument that any error was prejudicial.
II. MOTION TO EXCLUDE DEFENDANT'S STATEMENT
Defendant argues that the trial court erred by denying his motion to exclude his post-arrest interview statement because it was involuntary and violated his constitutional rights.
An involuntary statement obtained by a law enforcement officer from a criminal suspect is inadmissible pursuant to both the state and federal Constitutions. (People v. Dykes (2009) 46 Cal.4th 731, 752 (Dykes).) In evaluating the voluntariness of a statement made by a defendant, “[t]he question is whether the statement is the product of an ‘ “essentially free and unconstrained choice”' or whether the defendant's ‘ “ ‘will has been overborne and his capacity for self-determination critically impaired' ”' by coercion.” (People v. Williams (2010) 49 Cal.4th 405, 436 (Williams).) The prosecution bears the burden to establish by a preponderance of evidence that the statement was voluntary. (Ibid.) We review the trial court's findings as to the circumstances surrounding the confession for substantial evidence, but independently review the trial court's determination as to whether or not the statement was voluntary. (Ibid.)
“In making this determination, courts apply a ‘totality of the circumstances' test, looking at the nature of the interrogation and the circumstances relating to the particular defendant.” (Dykes, supra, 46 Cal.4th at p. 752.) “With respect to the interrogation, among the factors to be considered are ‘ “ ‘the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity....' ”' ” (Ibid.) “With respect to the defendant, the relevant factors are ‘ “ ‘the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' ”' ” (Ibid.)
Here, defendant argues that his statement was involuntary for two reasons: (1) he was exhausted and in pain from what he described during the interview as a “disintegrating” spine; and (2) there was an unrecorded conversation between Perdomo, Sullivan, and defendant before Perdomo turned on the tape recorder and gave defendant the Miranda advisements. Neither argument is persuasive.
First, there is no evidence that exhaustion or back pain rendered defendant's will “ ‘overborne' ” or “ ‘critically impaired' ” his capacity for self-determination. (Williams, supra, 49 Cal.4th at p. 436.) Instead, the transcript of the interview shows that defendant effectively parried Perdomo and Sullivan's questions, and appeared to understand the seriousness of the charges against him. Defendant had previous experience in the criminal justice system, reflected in his response early in the interview that he “didn't do shit” and “they got to come and they got the [sic] prove everything.” Moreover, Perdomo testified that defendant appeared coherent and responsive, and defendant did not express that he was ever too tired to continue with the interview.
Second, defendant relies on Missouri v. Seibert (2004) 542 U.S. 600 (Seibert) and People v. Honeycutt (1977) 20 Cal.3d 150 (Honeycutt) to argue that Perdomo and Sullivan engaged him in a pre-Mirandized conversation that was not recorded, which rendered his subsequent statement involuntary. Neither case is on point. Seibert concluded that the defendant's statements under police interrogation were involuntary because she had been questioned for 30 to 40 minutes without Miranda warnings and then, after the officer turned on the tape recorder and gave her the Miranda warnings, she was questioned a second time. (Seibert, supra, 542 U.S. at pp. 604-605, 617.) The United States Supreme Court explained that this two-step process contradicts the comprehensibility and efficacy of the Miranda warnings, as a reasonable person would not understand that he or she still retained a choice about continuing to talk. (Id. at p. 617.) Honeycutt similarly concluded that the defendant's statements under police interrogation were involuntary because the detective had a 30-minute unrecorded conversation with the defendant, in which the detective engaged in a “clever softening-up” of the defendant by disparaging the victim and discussing mutual acquaintances. (Honeycutt, supra, 20 Cal.3d at pp. 158, 160.)
Here, however, there is no evidence that a pre-Miranda conversation actually occurred. Perdomo testified that he advised defendant of his Miranda rights before taking his statement regarding the incident. Defendant hypothesizes that an earlier conversation occurred because, during the recorded interview, Perdomo referenced details related to defendant's prior voluntary manslaughter conviction (“guys were kicking in your door”) that Perdomo would not have learned from defendant's rap sheet. It appears equally plausible, however, that Perdomo learned of these details from another source. Defense counsel did not question Perdomo regarding the source of this knowledge. Moreover, even if defendant's prior conviction was discussed before the recorder was turned on, we cannot assume that such a discussion rendered defendant's subsequent statement involuntary. (See People v. Gurule (2002) 28 Cal.4th 557, 599, 604 [concluding that trial court's rejection of involuntariness claim was proper where officers engaged in small talk to put defendant at ease before turning on tape recorder].) There is no evidence that any discussion of defendant's prior conviction overbore defendant's free will. (Ibid.) The prosecution thus met its burden to establish by a preponderance of the evidence that defendant's statement was voluntary. (Williams, supra, 49 Cal.4th at p. 436.)
In sum, we conclude that the trial court did not err in denying defendant's motion to exclude his post-arrest interview statement.
Having determined there was no error, we need not address defendant's argument that any error was prejudicial.
Disposition
The judgment is affirmed.
WE CONCUR: JACKSON, J., WISEMAN, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.