P. v. Chambers

Filed 6/26/07 P. v. Chambers CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Ephremjay Uganda Chambers appeals following a court trial after which he was convicted of violating carrying a loaded firearm on his person or in his vehicle with a prior weapons violation. (Pen. Code, 12031, subd. (a)(1).)[1] On appeal, defendant claims there was not probable cause to arrest him and subsequently search his vehicle. In addition, defendant asserts there was insufficient evidence to support his conviction for possession of a loaded firearm in his vehicle, because he was homeless at the time of the arrest, and was living in his car, making it a temporary residence.

Statement of the Facts and Case

Officer Jared Hernandez responded to a report of a robbery of a liquor store in Milpitas on July 6, 2004. When he arrived on the scene, he interviewed the victim and owner of the store, who told him around 10:53 p.m., he was robbed at gunpoint. The victim described the robber as a black adult male, approximately 20 to 30 years old, 5 feet 11 inches tall, and weighing between 180 and 200 pounds. The robber was wearing a blue hooded sweatshirt, blue jeans, and a black item covering his face. The robber was holding a semi-automatic gun that was approximately six inches long. The robber pointed the gun at the victim and demanded that he give him money. The victim opened the register, and handed the robber money, consisting of an unknown amount of twenties, fives and ones. When the robber left the store, he took a box of alcohol from a display and ran out.

Officer Hernandez looked at the surveillance tapes of the robbery, and saw the robber enter the store with his head down, wearing a dark sweatshirt, and the hood up, and a black cloth covering his face. The robber was also wearing a white T-shirt under the sweatshirt, blue jeans, and bright white tennis shoes, had a black glove on this left hand, and was carrying a black, semi-automatic gun.

While Officer Hernandez was in the process of investigating the robbery, he learned that Officer La had located a vehicle in a closed business parking lot approximately .2 miles northeast of the liquor store. Officer La contacted defendant approximately 22 minutes after the robbery.

Officer La saw defendant in the drivers side of the car, wearing a do rag and a white T-shirt. Defendant stepped out of the car, and according to Officer La, his weight, height, build and black do rag matched the robbers description. Believing defendant to be the possible perpetrator in the robbery, Officer La pointed his gun at defendant, and ordered him to put his hands up. Defendant did not initially follow Officer Las instructions, and appeared excited. Officer La again ordered defendant to follow instructions and to put his hands up. Officer La had defendant get down on his knees, and lie down on his stomach with his hands spread out. Officer La handcuffed defendant, and told him he was being detained for investigation of a robbery.

Officer Hernandez brought the victim to the scene where defendant was being detained for an in-field show-up. The victim stated that defendants height and weight were similar to the person that robbed him and that defendants voice was also similar. Officer Hernandez showed the victim the black do rag that was on defendants head, and the victim stated that the material was similar to that used to cover the robbers face. The victim stated he was not 100 percent sure, and could not completely identify defendant as the robber, because defendant did not have the same sweatshirt on at the time.

When Officer La told defendant they were investigating a robbery with a handgun, defendant told the officers he had a handgun inside the trunk of his car. When Officer La asked defendant if he could get the handgun out of the trunk, defendant told him no and that he knew his rights.

Officer La patted down defendant and found his wallet, which contained defendants identification. Defendant was then taken to the police department.

Officer Hernandez later found a box of liquor that appeared to be the same as what he had seen in the surveillance tape in the bushes near the liquor store along the walking path between the liquor store and where defendants car was parked.

The car was searched on July 19, 2004, and a loaded black pistol and sweatshirt was found in the cab of the car. The search also revealed a pair of white tennis shoes and piles of clothing in the trunk. No blue hooded sweatshirt or glove were found in the car.

Following a preliminary hearing in this matter, the complaint charging defendant with robbery ( 211), was dismissed and defendant was discharged.

Soon thereafter, defendant was charged with carrying a loaded firearm on his person or in this vehicle with a prior weapons violation ( 12031, subd. (a)(1)) The trial court denied defendants motion to suppress evidence pursuant to section 1538.5, and the matter proceeded to trial.

During the court trial in this case, counsel for both sides stipulated to the following facts: Defendant possessed a loaded, operable firearm in the trunk of his car that was parked in a public place, and he had knowledge of the existence of the gun; the center of the trunk of defendants car was piled with mens clothing, a sleeping bag, and other personal property; the passenger side of defendants car also contained mens clothing and personal property; at the time of his arrest, defendant told Officer Hernandez that he had been living in his car for the past 30 days because he was homeless; and finally, that defendant had been previously convicted of a violation section 12025, subdivision (a)(1).

Defendant testified at trial that he had been living in his Ford Taurus car for over 30 days before being arrested. Defendant was homeless at the time and had no other place to keep his personal property. The night he was arrested, the car had been parked for approximately five hours, and had been in other locations during the day. Defendant also testified that he used his car daily as transportation to and from work, to purchase food, and to go to the homeless shelter to pick up his mail. On the Friday night he was arrested, the car had been parked for the night, and he had no intention of moving it until Monday.

Defendant was found guilty following a court trial and was granted two years probation.

Discussion

Defendant asserts two issues on appeal. The first is his claim that the trial court erred in denying his motion to suppress evidence, because the officers lacked probable cause to arrest defendant on suspicion of robbery and therefore, did not have probable cause to search his car. In addition, defendant claims there is insufficient evidence to support his conviction for carrying a loaded weapon in a public place or his vehicle, because his car was his temporary residence, as he was homeless at the time of his arrest.

Motion to Suppress Evidence

The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts 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. [Citations.] [Citation.] (People v. Weaver (2001) 26 Cal.4th 876, 924, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.)

Defendant asserts the search was illegal in this case, because officers did not have probable cause to arrest him for the robbery.

Police officers may make warrantless arrests when they have probable cause to believe the person arrested has committed a felony. ( 836, subd. (a)(3).) Probable cause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. (People v. Price (1991) 1 Cal.4th 324, 410.)

Determining whether an officer had cause to arrest requires two analytically distinct steps, each with its own standard of review. First, the court ascertains when the arrest occurred and what the arresting officer then knew; second, the court decides whether the officers knowledge at the time of arrest constituted adequate cause. On appeal, a reviewing court must accept the trial courts express or implied findings on disputed factual issues in the first step of the inquiry if they are supported by substantial evidence, but a reviewing court must use its independent judgment to review the second step of the inquiry. (People v. Price, supra, 1 Cal.4th at p. 409.) No exact formula exists for determining reasonable cause, and each case must be decided on the facts and circumstances presented to the officers at the time they were required to act. (People v. Fein (1995) 4 Cal.3d 747, 752, disapproved on another ground in People v. Palaschak (1995) 9 Cal.4th 1236, 1242.)

The record demonstrates that probable cause existed to arrest defendant for the robbery. Defendants height, age, race and weight all matched the victims description of the robber, and he was wearing some, but not all, of the same clothing as the robber, including jeans and a black do rag the victim said was similar to the face cover the robber wore. Defendant was found 20 minutes after the robbery in a parked car .2 miles from the liquor store, and appeared excited and did not comply with police orders. In addition, at the show-up identification, the victim identified defendants weight, height, voice and do rag as similar to that of the robber. Finally, defendant told officers he had a handgun in the trunk of his car, and a handgun was used in the robbery.

Based on the circumstances as a whole, the trial court was correct in determining that the officers had probable cause to arrest defendant for the robbery. As such, the search of the car was justified pursuant to the arrest, and the gun was properly seized.

Sufficiency of Evidence of Carrying a Loaded Weapon

Defendant asserts on appeal there was insufficient evidence to support his conviction for possession of a loaded firearm on his person or his vehicle, because he was homeless at the time of the arrest, and the firearm was found in his car, which was his temporary shelter.

In reviewing the sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] (People v. Davis (1995) 10 Cal.4th 463, 509, original italics.) In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 139.) [W]e do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. [Citation.] We simply consider whether any rational trier of fact could have found the essential elements of [defendants] crime beyond a reasonable doubt. [Citations.] [Citation.] Unless it is clearly shown that on no hypothesis whatever is there sufficient substantial evidence to support the [jurys] verdict, we will not reverse. (People v. McCleod (1997) 55 Cal.App.4th 1205, 1221, original italics.)

Here, the question is whether the fact that defendant was living in his car because he was homeless makes his possession of a loaded firearm in the car lawful, because, essentially, he had no other place to store it.

In a case in which a defendant was convicted of possessing a concealed firearm in a van he used as a home, the reviewing court stated: Defendants house car or van, as with any house car or van, has two essential functions: (1) to serve as a means of transportation or a motor vehicle whenever on a public street or public property or in transit, and (2) the capability to function as a home or place of residence when legally upon private property and being utilized as a place of residence. . . . [The defendant] may consider his house car or van his home or place of residence, but when he drives his car or van on the public streets or highways or causes said car or van to be thereupon while he is present, he is subject to arrest and successful prosecution for possession of concealed or loaded firearms should he be arrested with those items discovered in his car or van under circumstances similar to those before us. (People v. Foley (1983)

149 Cal.App.3d Supp. 33, 39 (Foley).)

Although defendants car was used for habitation, it was parked in a public parking lot, and the living quarters were not physically segregated from the driving area. The evidence shows that defendant drove the car often, to and from work and the homeless shelter to retrieve his mail, and on the day of his arrest, he had driven the car five hours prior.

Like Foley, when defendant drives his car or van on the public streets or highways or causes said car or van to be thereupon while he is present, he is subject to arrest and successful prosecution for possession of concealed or loaded firearms . . . . (Foley, supra, 149 Cal.App.3d Supp. at p. 39, italics added.) Here, defendants car was parked in a public parking lot. Therefore, defendant was in a public place when he possessed the loaded gun and such fact is sufficient to support his conviction for that crime.

We are not persuaded by defendants equal protection argument that homeless people using a car as a residence are excluded from lawfully possessing a loaded gun, whereas someone using a Winnebago as a temporary residence in a campsite is not so precluded. Defendant rests his argument on the premise that he is receiving disparate treatment because of this status as a homeless person.

Equal protection requires only that persons similarly situated receive like treatment. (Brown v. Merlo (1973) 8 Cal.3d 855, 861.) Here, we do not believe a person using his car as a home in a public parking lot and as his daily transportation, as defendant was, is similarly situated to a person using a vehicle in an RV park or other parking area intended for residential use. As such, the fact that defendant may be precluded from possessing a loaded gun because he is sleeping in his car is not a violation of equal protection.

Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1] All further unspecified statutory references are to the Penal Code.