legal news


Register | Forgot Password

P. v. Brewer

P. v. Brewer
06:23:2007



P. v. Brewer



Filed 6/21/07 P. v. Brewer CA3



NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



THIRD APPELLATE DISTRICT



(Sacramento)



----



THE PEOPLE,



Plaintiff and Respondent,



v.



ANTHONY LAWRENCE BREWER, JR.,



Defendant and Appellant.



C051471



(Super. Ct. No. 04F07402)



Defendant was convicted by a jury of possession of a firearm within 10 years of having been convicted of misdemeanor battery. (Pen. Code,  12021, subd. (c)(1).) Imposition of sentence was suspended and defendant was placed on probation for five years. He appeals, challenging the denial of his suppression motion and one of the conditions of probation. We affirm the judgment.



Facts and Proceedings



At approximately 12:00 p.m. on July 29, 2004, 15-year-old J.D. arrived at his mothers house on Viking Drive in Rancho Cordova. As he entered the area, J.D. observed defendant in the street arguing with an Asian man and woman and trying to get the man to fight him. At one point during the argument, defendant removed his shirt and waved it around in the air over his head. Defendant also waved a handgun in the air over his head. The Asian couple eventually went inside their home.



After entering his mothers home, J.D. looked out a window and saw defendant sitting in the drivers seat of a gray sedan and talking to a woman. J.D. went outside and obtained the license plate number from the car. He gave this information to his mothers roommate who was, at that moment, reporting the matter to the police.



At approximately 12:49 p.m., Officer Anthony Saika received a dispatch about a man brandishing a firearm on Viking Drive and arrived on the scene a few minutes later. He observed a gray Chevy Impala stopped in the middle of the street with a license plate number that closely matched what had been reported. As Saika approached the vehicle from the rear, it began moving forward, turned right at the next intersection and pulled into the first driveway. Saika activated the lights on his police car and came to a stop nearby.



As Saika got out of his patrol car, defendant emerged from the Impala. Saika handcuffed defendant and performed a pat-search for weapons. He felt what he recognized as a clip from a handgun and removed it. Saika asked defendant if there were any guns in the car and defendant looked down and did not answer. When Saika asked again, defendant said yes. Another officer who had arrived on the scene searched the vehicle but did not find a gun. Defendant then directed them to a sleeve behind the front passenger seat. There, the officers found a nine millimeter Glock handgun that matched the clip taken from defendant.



Defendant informed Saika that both the car and the handgun belonged to his mother and that she carried the handgun in the car all the time. He acknowledged getting into an argument but denied brandishing or displaying the handgun. During this conversation, a woman named J.T. approached and spoke to the officer. After that conversation, Saika confronted defendant with what J.T. had told him and defendant changed his story. He said that during his argument with the couple, the man said something about a gun. Defendant asked the man if he was pistol playing on me. Defendant then went to his car, reached inside, grabbed the handgun and placed it on the drivers seat.



A few minutes later, defendant changed his story again. This time, he said he was showing the handgun to J.T. and that he carried the gun for protection because the guys he hangs out with are into some heavy shit. Defendant said to the officer: I made a mistake, and I admit it.



On December 19, 2001, defendant was convicted of the crime of misdemeanor battery (Pen. Code,  242).



Defendant was charged with possession of a firearm within 10 years of being convicted of misdemeanor battery (Pen. Code,  12021, subd. (c)(1)). He moved to suppress the evidence obtained following his detention, arguing the detention was unlawful. The motion was denied. Defendant was thereafter convicted as charged.



Imposition of sentence was suspended and defendant was placed on probation for a period of five years on the condition, among others, that he not own or possess any dangerous or deadly weapon nor remain in any building or vehicle where any person has such a weapon, nor remain in the presence of any armed person.



Discussion



I



Suppression Motion



Defendant contends his motion to suppress was wrongly denied because his detention, which was based solely on an anonymous informant tip, was unlawful. We disagree.



An investigatory detention of an individual in a vehicle is permissible under the Fourth Amendment if supported by reasonable suspicion that the individual has violated the law. [Citation.] A peace officer may also search the passenger compartment of the vehicle, limited to those areas in which a weapon may be placed or hidden, if the officer possesses a reasonable belief the suspect is dangerous and may gain immediate control of a weapon. (People v. Dolly (2007) 40 Cal.4th 458, 463 (Dolly).)



The guiding principle in determining the propriety of an investigatory detention is the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security. [Citations.] In making our determination, we examine the totality of the circumstances in each case. (People v. Wells (2006) 38 Cal.4th 1078, 1083.)



In Alabama v. White (1990) 496 U.S. 325 [110 L.Ed.2d 301], the police received an anonymous tip that a woman was carrying cocaine in an attache case and would be leaving an apartment building at a specific time, get into a car matching a specific description, and drive to a specific motel. Acting on the tip, the police conducted surveillance and observed the woman proceed as predicted. She was then stopped, searched and cocaine was found in an attache case in her vehicle. (Id. at p. 327 [110 L.Ed.2d at pp. 306-307].)



The United States Supreme Court concluded the tip alone did not justify the stop, but the tip coupled with observations of the defendants movements in accordance with the tipsters predictions made it reasonable to think the tipster had inside information about the suspect and therefore credit his assertion about illegal activity. (Alabama v. White, supra, 496 U.S. at p. 332 [110 L.Ed.2d at p. 310].)



In Florida v. J.L. (2000) 529 U.S. 266 [146 L.Ed.2d 254], an anonymous caller reported that a young black male standing at a bus stop and wearing a plaid shirt was carrying a gun. Sometime thereafter, officers arrived at the bus stop and observed three black males just hanging out [there]. (Id. at p. 268 [146 L.Ed.2d at p. 259].) One of the three, J.L., was wearing a plaid shirt. The officers did not see a firearm and J.L. made no threatening or otherwise unusual movements. One of the officers approached J.L., frisked him, and discovered a gun. (Ibid.)



The high court concluded the information received by the police was insufficient to justify the stop and frisk. According to the court, [t]he tip in the instant case lacked the moderate indicia of reliability present in [Alabama v. White] and essential to the Courts decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informants knowledge or credibility. (Florida v. J.L., supra, 529 U.S. at p. 271 [146 L.Ed.2d at p. 260].)



The court rejected the states argument that reliability could be based on the tipsters description of the physical characteristics of the defendant, i.e., a black male wearing a plaid shirt at a bus stop. The court explained: An accurate description of a subjects readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. (Florida v. J.L., supra, 529 U.S. at p. 272 [146 L.Ed.2d at p. 261].)



Finally, the court rejected adoption of a firearm exception based on the danger presented. Such an exception, the court explained, would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the targets unlawful carriage of a gun. (Florida v. J.L., supra, 529 U.S. at p. 272 [146 L.Ed.2d at p. 261].)



In People v. Jordan (2004) 121 Cal.App.4th 544, the police received an anonymous telephone tip about a man in a park carrying a concealed handgun and threatening to shoot people. The man was described as black, light-skinned, with a bald head, wearing a black jacket, white shirt, and red boots. The caller indicated the man was carrying the gun in his right jacket pocket. (Id. at pp. 548-549.)



A police officer arrived at the park and observed the defendant, who matched the description, sitting on a park bench. The officer could not see a gun bulge in the defendants clothing and the defendant did not appear to be engaging in any illegal activity. After observing the defendant for a while, the officer directed him over and conducted a search. He discovered a handgun in the defendants jacket pocket. (People v. Jordan, supra, 121 Cal.App.4th at pp. 550-551.)



The Court of Appeal concluded there was only one factor that distinguished this matter from Florida v. J.L., the fact that the anonymous tip was recorded. This factor detracts from any possibility that the call was an after-the-fact police fabrication. (People v. Jordan, supra, 121 Cal.App.4th at p. 562.) However, the court concluded this factual distinction was insufficient to warrant a different result. (Ibid.) At the time of the stop, the police had received no information predicting the defendants activities, as in Alabama v. White, and no information, other than the informants bare assertion, that the defendant was engaged in criminal activity. (Jordan, supra, at p. 559.)



In reaching its decision, the Jordan court did not consider the fact that the informant had told the 911 operator the defendant was threatening people with the gun. This information had not been relayed to the police who conducted the stop, and the People did not argue that such information should be imputed to the officers. (People v. Jordan, supra, 121 Cal.App.4th at pp. 549-550, 560, fn. 8.) The court also did not consider whether the result would be different if the anonymous call could be traced because, for example, it had been made from a home phone. No information about the possibility of tracing had been presented at the suppression hearing. (Id. at pp. 561-562.)



Defendant contends the present matter is controlled by Florida v. J.L. and People v. Jordan. According to defendant, the tip here was anonymous and contained no internal indicia basis for or reliability of the informants information. There was no information presented as to how the informant learned that defendant had been waving a gun around. Defendant argues the fact that Officer Saika found a person matching the description given by the informant, the person was in a car that matched the one described by the informant, and the car was in the location identified by the informant is not enough. According to defendant, this did not provide a basis for the informants knowledge that defendant was engaged in criminal activity, as required by Florida v. J.L. And the fact that defendant began driving away when the officer approached is of no importance, because this is what anyone would have done under the circumstances.



Following briefing in this case, the California Supreme Court decided Dolly, supra, 40 Cal.4th 458. In Dolly, the police received an anonymous tip that a light-skinned African-American male had just pulled a gun on the caller and had mentioned a gang name. The caller said the man had a bandage over his left hand as if the hand had been broken and was sitting in the drivers seat of a gray Nissan Maxima parked at a particular location near a recycling center. Two minutes later, the tipster called again and said he had just driven by the Nissan and determined it was black, not gray. (Id. at p. 462.)



At about the time of the second call, officers received a dispatch about a light-skinned, African-American male with a cast on his arm in a gray Nissan Maxima in the location indicated by the informant who had threatened a 911 caller with a gun. The officers arrived on the scene and saw a black Maxima with three people inside. Defendant, who was sitting in the drivers seat, matched the description and had a cast on his arm. The officers ordered the defendant out of the car and conducted a search. A loaded, .38-caliber revolver was discovered under the front passenger seat of the car. (Dolly, supra, 40 Cal.4th at p. 462.)



The State Supreme Court concluded that, under the totality of the circumstances, the detention stop did not violate the defendants Fourth Amendment rights. Among those circumstances was the grave and immediate risk posed to the caller and anyone nearby by the act of pointing a revolver at the caller. (Dolly, supra, 40 Cal.4th at p. 465.) According to the court: [A]llegations of the threatened use of a weapon, made by [a] person claiming to be an eyewitness to the threats, required immediate police action and is materially distinguishable from the anonymous tip at issue in Florida v. J.L., which involved only an allegation of a concealed weapon. (Ibid., quoting from Ray v. Village of Woodridge (N.D.Ill. 2002) 221 F.Supp.2d 906, 914.)



The court was also persuaded by the fact the anonymous tip involved a contemporaneous threat rather than past activity. (Dolly, supra, 40 Cal.4th at p. 467.) According to the court, [t]he police may ascribe greater reliability to a tip, even an anonymous one, where an informant was reporting what he had observed moments ago, not stale or second-hand information. (Id. at p. 468, quoting from United States v. Terry-Crespo (9th Cir. 2004) 356 F.3d 1170, 1177.) The tipster also provided an accurate and detailed description of the perpetrator and his location, which was confirmed minutes later by the police. (Dolly, supra, at p. 468.) The court summarized: [T]here are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. [Citation.] As the high court has explained, however, the tip must be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. [Citation.] In this case, the 911 call was a firsthand report of violent criminal conduct requiring an immediate response to protect public safety. The call was recorded, eliminating the possibility of after-the-fact police fabrication and allowing after-the-fact review (albeit limited) of the callers sincerity. The report was fresh, detailed, and accurate, and its description of defendant and his location was corroborated by the police within minutes. Under the totality of the circumstances, we find there was sufficient indicia that the 911 caller was able to see the criminal conduct he was reporting, that he was reporting it truthfully and accurately, and thus that the tip was sufficiently reliable to justify the limited intervention of an investigatory detention, which led to discovery of the loaded revolver. (Id. at pp. 470-471.)



The present matter is more akin to Dolly, where the defendant pointed the handgun at his victim, than Florida v. J.L., where the defendant was merely in possession of a concealed handgun. Officer Saika testified at the suppression hearing that he was dispatched to the area based on an anonymous call that said a black male wearing a black Raiders jersey was brandishing a firearm while he was arguing with a female at the dispatch address. (Italics added.) The caller indicated that, at the time of the call, the black male was seated in a vehicle and provided a description of the vehicle. The caller also provided a license plate number. Saika arrived on the scene three minutes later and saw a vehicle matching the description stopped in the middle of the street in front of the address identified in the dispatch.



Brandishing a firearm while arguing with someone is little removed from pointing a firearm at him. The American Heritage Dictionary defines brandish as [t]o wave or flourish menacingly, as a weapon. (American Heritage Dict. (New college ed. 1981) p. 160.) Websters defines it as to shake or wave (as a weapon) menacingly or to exhibit in an ostentatious or aggressive manner. (Websters Collegiate Dict. (11th ed. 2006) p. 150.) Both pointing and brandishing a firearm involve a serious risk of injury to the victim as well as those nearby.



As in Dolly, the anonymous call at issue here was a report from someone who witnessed the dangerous activity firsthand, was contemporaneous with the events, and requir[ed] an immediate response to protect public safety. (Dolly, supra, 40 Cal.4th at p. 471.) In addition, once Officer Saika arrived, he observed defendant acted suspiciously. Defendants car was stopped in the middle of the street and, as Saika approached, defendant moved forward, turned right at the next intersection and pulled into the first driveway. The total distance covered was no more than 100 yards. Thus, instead of just pulling to the side of the street to let the officer pass, or even turning at the next intersection to get out of the officers way, defendant pulled into the first available driveway where, if that had been his destination all along, it is reasonable to assume he would have gone there to begin with.



Based on the totality of the circumstances, and primarily the report that the suspect had been seen brandishing a firearm in the course of an argument, Officer Saika had reasonable cause to stop defendant to investigate the matter further. The suppression motion was properly denied.



II



Probation Condition



Defendant contends the probation condition that he not own or possess any dangerous or deadly weapon nor remain in any building or vehicle where any person has such a weapon, nor remain in the presence of any armed person should be modified to require defendants knowledge that he is near an armed person or a vehicle containing a weapon. He argues knowledge is a key element of a valid probation condition.



The People respond that defendant has forfeited this argument by failing to raise it in the trial court, despite advance notice in the probation report that such condition might be imposed. We agree.



As a general matter, failure to object and make an offer of proof at sentencing regarding probation conditions forfeits any challenge to those conditions on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234.) A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. . . . A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis. (Id. at p. 235.)



Defendant contends this court nevertheless has discretion to consider his challenge for the first time on appeal. He cites In re Kacy S. (1998) 68 Cal.App.4th 704 (Kacy S.), in which we considered a challenge to a probation condition despite failure to raise the issue below. In that case, the condition prohibited the minor from associating with any person not approved by his probation officer, and the minor argued the condition was overbroad. (Id. at p. 712.)



Defendant acknowledges that in People v. Gardineer (2000) 79 Cal.App.4th 148 (Gardineer), we declined to consider a vagueness challenge to a probation condition that the defendant observe good conduct. (Id. at p. 151.) Defendant nevertheless argues the probation condition at issue here is more similar to that in Kacy S. than Gardineer as it essentially restricts him from going into many types of public places, including a courthouse. Furthermore, defendant points out, he is not seeking elimination of the condition, only modification to add a knowledge requirement.



Defendant misconstrues our decision in Kacy S. to consider the challenge to the probation condition. That decision was not based on the nature of the probation condition but the fact that judicial economy favored our consideration of the issue at that time. In Kacy S., there were two minors before the trial court. Although one of the minors, Daren, had not raised the probation condition issue below, the other minor, Kacy, had done so and the issue was litigated before the trial court. During the court hearing, the prosecution had even suggested a reasonable modification of the condition. In considering Darens challenge to the same condition on appeal, we observed that the rule against raising such issues for the first time on appeal is founded on considerations of judicial economy which would not be furthered by a probation condition requiring the probation officer to approve Darens associat[ion] with persons such as grocery clerks, mailcarriers and health care providers. (Kacy S., 68 Cal.App.4th at p. 713.)



In the present matter, judicial economy does not support our consideration of defendants challenge for the first time on appeal. If, as defendant contends, the probation condition is unlawful merely because it does not include a knowledge component, it would have been a simple matter to correct this in the trial court if appropriate. However, having failed to raise the issue below, defendant never gave the trial court an opportunity to do so. This issue has therefore been forfeited for purposes of appeal.




Disposition



The judgment is affirmed.



HULL, J.



We concur:



DAVIS, Acting P.J.



RAYE , J.



Publication Courtesy of San Diego County Legal Resource Directory.



Analysis and review provided by San Diego County Property line attorney.





Description Defendant was convicted by a jury of possession of a firearm within 10 years of having been convicted of misdemeanor battery. (Pen. Code, 12021, subd. (c)(1).) Imposition of sentence was suspended and defendant was placed on probation for five years. He appeals, challenging the denial of his suppression motion and one of the conditions of probation. Court affirm the judgment.

Rating
0/5 based on 0 votes.

    Home | About Us | Privacy | Subscribe
    © 2024 Fearnotlaw.com The california lawyer directory

  Copyright © 2024 Result Oriented Marketing, Inc.

attorney
scale