P. v. Neal
Filed 11/14/13
P. v. Neal CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. BYRON LEE NEAL, Defendant and Appellant. | F065983 (Super. Ct. No. F11905543) |
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Don Penner, Judge.
Elizabeth
Campbell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
After his suppression motion was
denied, defendant Byron Lee Neal pled no contest to two counts of
firearm enhancement. On appeal, he
contends the trial court erred in denying the motion to suppress. We will affirm.
BACKGROUND
Defendant
and another male were involved in crimes against two people who drove into a
fast food restaurant parking lot.
Defendant was later arrested on another matter. He was searched and found to be carrying a
cell phone stolen during the prior crimes.
The cell phone contained pictures of defendant. When confronted with the evidence, defendant
admitted participating in the crimes.
The victims also identified him as one of the perpetrators.
Defendant was charged with two
counts of robbery (Pen. Code,
§ 211),
title="">[1] two counts of criminal threats (§ 422),
and two counts of assault with a semiautomatic firearm (§ 245,
subd. (b)). The robbery charges
were accompanied by allegations that defendant personally used a firearm
(§ 12022.53, subd. (b)) and was personally armed with a firearm
(§ 12022, subd. (a)(1)). Connected
to the assault charges were allegations that defendant personally used a firearm
(§ 12022.5, subd. (a)).
Defendant
pled not guilty. He twice moved to
suppress the evidence, and both motions were denied. Defendant changed his plea and pursuant to a
negotiated plea bargain was convicted of the two robbery counts and one
subd. (b)). The remaining counts were
dismissed.
The trial
court sentenced defendant to prison for 12 years, as follows: a two-year term for one robbery, a concurrent
two-year term for the other robbery, plus a consecutive 10-year term for the
firearm enhancement.
name="_ftnref3" title="">[2]
FACTS
name="_ftnref4" title="">[3]
During the
stipulated for purposes of the preliminary hearing and the motion to suppress
that a particular 911 dispatcher would testify, if called, that on September
23, 2011, at about 8:17 p.m., she received a call reporting an armed
disturbance. “There was a black male
adult with a gun. He went northbound on
Fresno Street from White [Avenue] in all dark clothing. He was pointing a gun at a Hispanic male
adult who left westbound on White [Avenue] ….â€
This information was then dispatched to officers.
Officers Beckford and McCray were
dispatched to the brandishing. According
to Officer Beckford, the reporting party explained that “the subjects had left
walking northbound on Fresno [Street] from White [Avenue].†“The [dispatch] call had said suspects. [The officers] weren’t given an exact number
that [Officer Beckford] recall[ed].†As
the officers patrolled the area, they saw three males walking under a freeway
overpass. One of the males fit the
description of the brandishing suspect provided by the reporting party. Defendant was one of the other two males.
The
officers turned on the patrol car’s overhead lights and spotlights, exited the
car, and ordered the three males to stop.
The suspect looked over his shoulder at the patrol car and immediately
started running into an adjacent field.
Defendant and the other male took off running in the other direction
into the roadway. Officer McCray took
off after the first male, and Officer Beckford told defendant and the other
male to stop. In a few seconds, two or
three shots were fired from the direction of the suspect and Officer
McCray. Defendant and the other male,
who had run eight or 10 feet, stopped running, looked toward the field, and
went down to the ground with their hands under their bodies. Officer Beckford ordered them to put their
hands out to the sides because she did not know if they also had weapons. They complied. One of them yelled that “they didn’t have
anything to do with it.†Assisting
officers arrived and handcuffed defendant and the other male, helped them up,
and walked them to patrol vehicles.
As far as
Officer Beckford knew, defendant was not under arrest at this point, but she
had no further contact with him after he was handcuffed because she and her
partner were taken to the staging area.
About 20 minutes after defendant was taken into custody, Sergeant Chamalbide
arrived on the scene.
On cross-examination, Officer
Beckford said she did not see defendant with a weapon and she did not place him
under arrest. She did see another
officer arrest him, but she was not sure which officer it was. She did not see whether defendant and the
other male were searched because she was no longer present.
Sergeant
Chamalbide, the supervisor on duty, responded to the call that a suspect had
fired shots at an officer. When Sergeant
Chamalbide arrived on the scene, defendant was handcuffed and seated in the
back seat of a patrol car. According to
Sergeant Chamalbide, defendant was under arrest at this point and was being
investigated for both the brandishing and the shooting. Sergeant Chamalbide believed defendant might
have been involved in the shooting because the three males were together when
the officers contacted them. Sergeant
Chamalbide asked defendant to identify the suspect who had run into the field
and shot at the officers, but defendant would not speak.
The suspect who shot at the
officers was still at large and tactical teams were conducting a yard-to-yard
search for him. Sergeant Chamalbide was
within the search area and was trying to protect himself as he spoke to
defendant. He decided to call for a
wagon to transport defendant to headquarters, where he could be interviewed for
further details. Sergeant Chamalbide
wanted to find out who the shooter was and where he might have gone, and he
wanted to investigate the brandishing.
Before
defendant was put in the wagon, an officer searched him. Defendant had two cell phones on his
person. The items were put in a property
bag and taken with him to headquarters. The
search was for the purpose of taking everything off defendant’s person before
he was transported; it was not a search for weapons.
Sergeant
Chamalbide wanted to search (“dumpâ€) the contents of defendant’s cell phones to
determine if defendant had talked to the shooter, and possibly to triangulate
the shooter’s location. Sergeant
Chamalbide ordered a detective to search the cell phone’s contents. After the detective did so, he informed
Sergeant Chamalbide that the cell phone had been stolen during a carjacking
(the prior crimes) and that it contained several pictures of defendant. Sergeant Chamalbide contacted the detective
who was investigating the prior crimes.
On
cross-examination, Sergeant Chamalbide said he thought the initial dispatch had
been about one suspect brandishing a weapon.
He explained, “If I remember right, yes, it was one.†He also stated that, at least until defendant
arrived at headquarters, he had no information that defendant possessed a
weapon and no one had identified him as being involved in the brandishing. Sergeant Chamalbide explained that it was
police practice to remove all property from a person before placing him in the
wagon for transport. Defendant was not
given the option of leaving; he was under arrest at that point.
On redirect
examination, Sergeant Chamalbide explained that the routine search before
transport was for the safety of both officers and suspects.
Defense Evidence
Sergeant
Chamalbide was called by the defense. He
testified that about 30 or 60 minutes passed between his giving the cell
phone to the detective and the detective’s telling him the cell phone had been
taken in the prior crimes.
On
cross-examination, Sergeant Chamalbide explained he had told the prosecutor he
wanted to further explain why defendant was placed under arrest. Sergeant Chamalbide said that when he arrived
on the scene, he received information from officers and he was investigating
several aspects, including a violation of section 148 (resisting an officer in
the lawful performance of his or her duties )
they had run, if they had pushed the officers during the incident.†Sergeant Chamalbide was also investigating
whether the two males were involved in a conspiracy in the shooting. Based on his experience, Sergeant Chamalbide
knew that gang members develop street credit by shooting at officers. For this reason, he was also investigating a
gang enhancement.
On redirect
examination, Sergeant Chamalbide stated he did not arrest defendant for
violating section 148.
DISCUSSION
Defendant asserts that the officers
did not have reasonable suspicion to detain him based on the brandishing
report, and therefore the detention was unlawful and his resistance to it was
not a violation of section 148.
Consequently, the officers lacked probable cause to arrest him. He stresses we are bound by the parties’
stipulation that the dispatcher stated that a single suspect was involved in
the brandishing.
A detention occurs within the
meaning of the Fourth Amendment when the officer, by means of physical force or
show of authority, in some manner temporarily restrains the individual’s
liberty. (People v. Zamudio (2008) 43 Cal.4th 327, 341;
v. Souza (1994) 9 Cal.4th 224, 229 (Souza).) Although a police officer may approach an
individual in a public place and ask questions if the person is willing to
listen, the officer may detain the person only if the officer has a reasonable,
articulable suspicion the detainee has been, currently is, or is about to be engaged
in criminal activity. (Terry v. Ohio
(1968) 392 U.S. 1, 21; see In re Tony C. (1978) 21 Cal.3d 888, 893.) To satisfy the requirement, the officer must “
articulable facts that,
considered in light
of the totality
of the circumstances,
provide some objective
manifestation that the
person detained may
be involved in
criminal activity.†(Souza, supra, at
p. 231; United States v. Sokolow (1989) 490 U.S. 1, 7 [“the police
can stop and briefly detain a person for investigative purposes if the officer
has a reasonable suspicion supported by articulable facts that criminal
activity ‘may be afoot,’ even if the officer lacks probable causeâ€].)
The
inferences from conduct required to establish a reasonable suspicion ultimately
rest on commonsense judgment about human behavior, rather than on scientific
studies. (Illinois v. Wardlow
(2000) 528 U.S. 119, 125.) “The
possibility of an innocent explanation does not deprive the officer of the
capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his
investigation is to resolve that very ambiguity and establish whether the activity
is in fact legal or illegal—to ‘enable the police to quickly determine whether
they should allow the suspect to go about his business or hold him to answer charges.’ [Citation.]â€
(In re Tony C., supra, 21 Cal.3d at p. 894.) But, of course, “an investigative stop or
detention predicated on mere curiosity, rumor, or hunch is unlawful, even
though the officer may be acting in complete good faith. [Citation.]â€
(Id. at p. 893.)
Here, articulable facts supported
the detention. Defendant was in the
company of a suspect in a recent brandishing, and they were only a few blocks
from where the crime had occurred. It was
unlikely that defendant and the other male just happened to join up with the
suspect in the previous minutes, unaware of the brandishing. Furthermore, it was highly likely that the
brandishing suspect was still armed, and very possible that defendant and the
other male were also armed. In light of the
totality of the circumstances, it was reasonable for the officers to suspect
that defendant might be involved in criminal activity. Thus, it was reasonable for the officers to
detain not only the suspect, but also defendant and the other male who were
with the suspect.
Because
defendant was lawfully detained, he had no right to resist the detention and
flee when the officers ordered him to stop. Once defendant
under section 148.
(People v. Allen (1980) 109 Cal.App.3d 981, 985-987; People v.
Kraft (2000) 23 Cal.4th 978, 1037 [“Probable cause to arrest exists if
facts known to the arresting officer would lead a person of ordinary care and
prudence to entertain an honest and strong suspicion that an individual is
guilty of a crime.â€].) The facts
provided probable cause to arrest him under section 148 even if the arresting
officer in fact arrested him for another reason. (Devenpeck
v. Alford (2004) 543 U.S. 146, 153 [arresting officer’s “subjective reason
for making the arrest need not be the criminal offense as to which the known
facts provide probable causeâ€].) With
probable cause to arrest, the officers were entitled to search defendant
incident to the arrest. (Virginia v.
Moore (2008) 553 U.S. 164, 177-178 [when officer has probable cause to
arrest a person, a warrantless search is justified as a search incident to
arrest]; People v. Diaz (2011) 51 Cal.4th 84, 90.)
The trial
court did not err in denying defendant’s motion to suppress.
DISPOSITION
The
judgment is affirmed. The clerk of the superior court is directed to correct
the abstract of judgment to reflect that the sentence on count 1, not count 2,
is the concurrent sentence.
name="_ftn1" title="">* Before Kane, Acting P.J., Franson, J. and Oakley, J.â€
†Judge of the Madera Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
name="_ftn2" title="">[1] All statutory references are to the Penal Code unless
otherwise noted.
