Filed 12/17/18 P. v. Sanford CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant John Sanford guilty of second degree robbery, criminal threats, first degree burglary, domestic violence, witness intimidation by force or violence, and two counts of firearm possession by a prohibited person. The jury acquitted defendant on one count of firearm possession. The jury also found two firearm allegations to be true.

Sentenced to state prison for an aggregate term of 20 years, defendant appeals. He contends the trial court prejudicially erred in denying his motion to suppress the evidence (Pen. Code,[1] § 1538.5) found on his cell phone. Defendant also contends the trial court erroneously imposed a separate term for firearm possession when the same firearm was the basis for firearm enhancements. We reject these contentions.

In a supplemental brief, defendant contends he is entitled to the ameliorative benefit of the amendment to sections 12022.5 and 12022.53 which allows the sentencing court to exercise discretion under section 1385 to strike or dismiss firearm use enhancements. As to that, we agree and will remand the matter to the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and Angelica H. began a dating relationship in 2007 but separated in 2014 after their second daughter was born. In the spring of 2015, they reunited but separated again shortly thereafter.

About 10:00 p.m. on July 21, 2015, Angelica was talking to David A. and her cousin on the steps outside her apartment. Defendant arrived with his face covered with a bandana and pulled out a gun, ordering David A. to empty his pockets. After taking David A.’s wallet and cell phone, defendant struck David A. near his eye with the gun, causing a laceration. Angelica ran inside her apartment and called 911, reporting that defendant had a gun. Defendant pointed the gun at her, called her a derogatory name, and threatened to kill her. She told him she was speaking to the police and he fled the scene. When the police arrived, David A. refused to identify the suspect and refused to have his face photographed to document his injury. Angelica told an officer that she feared for her life.

After midnight on July 26, 2015, defendant, his face covered with a bandana, arrived at Angelica’s apartment. She was entertaining a couple of male friends. Her cousin had just left and saw defendant with a gun. Defendant pointed the gun at the two men, ordering them to disrobe and throwing one of the men against a wall. Angelica ran to the apartment of a neighbor who called the police. Angelica told the 911 operator that the father of her children had walked into her apartment and that he was armed with a gun. While she was on the phone, the two male friends ran from her apartment. They were naked and carrying their clothes. Defendant then left her apartment carrying his gun.

About 2:00 p.m. on August 1, 2015, as Angelica entered her apartment, defendant (who does not have a key to her apartment) came out of a back room, closed the front door, and hit her in the head several times. She opened the front door and yelled for help. Defendant took her money but threw it at her as he left. An officer saw injuries to Angelica’s head which included a lump on the back of her head, a scrape below her eye, and bruises on her face. Photos were taken of her injuries. In the next door neighbor’s yard, officers found defendant’s shirt and pants which he had been wearing that day. He had removed his clothing as he fled the scene to avoid identification.

About 6:05 p.m. on August 7, 2015, Sacramento Police Detective Edward Macaulay and his partner attempted to stop a car with expired registration. The car led the officers on a brief chase and then stopped. The passenger door opened and a man got out and ran with the detective chasing after him. The man tossed a gun, a nine-millimeter semiautomatic Makarov handgun, into a yard while he fled but he was never caught. No usable fingerprints were taken from the gun or bullets inside the gun. Based on the detective’s description of the suspect, another officer showed a photograph of defendant to the detective who recognized defendant as the suspect who had thrown the gun. The detective then took over the investigation of all crimes in which defendant was a suspect and prepared arrest warrants for the incidents which occurred in July and August.

On August 22, 2015, defendant was arrested on the warrants and his cell phone was seized and booked into evidence. Detective Macaulay sent the phone to the digital forensic unit for data extraction based on his investigation which included allegations against defendant that he had sent threatening text messages to Angelica before and after the charged offenses. The search of defendant’s cell phone revealed the following messages:

July 11, 2015: “Just wait bitch u lucky the police is around the corner u snitch. [I] gonna take care of biz cause no i mad bitch you’ll see [I] know u hustle those phones i’m rob all of them from u bitch. [I] hate u when i see u i stompin yo ho ass out wait for it.” Later the same day, defendant texted Angelica: “Bitch im ki u and what ever nigger u fucking wit hoe im get a telly around in yo area u aint gone be able to sleep b.”

July 14, 2015: “Don’t think im playin[.] [I] stay at rons now and read the news[.] [I] smack at shit.”

July 31, 2015: “im just call all day and im robbin u today tomorrow whenever they catch u im pay cash today since u wanna play u saw the text bang yeah. [I’]m tell them only legs so you can do the thing you always wanted wheel chair.”

August 3, 2015: “I told you duck goose. [I] got u. [T]hought I was playin.”

August 10, 2015: “[C]lick click bang.”

August 17, 2017: “Eventually im gonna find u and im gonn as beat the shit out of you. [I] still dont understand how u think u stayin out of touch or not answerin is gonna save u. [W]ehether er know or two years from now you gonna be in the hospital if not dead bitch[.] [I]ts gonna be sad aint no mercy when i see u even wit[h] the kids out we gon stomp you out.” “I don’t know what u think im say ah forget it[.] [T]hat will be my only chance[.] [A]nd like that day I told you inah break yo teeth and face . . . .” “Bitch in the world cause im obviously gonna see u again of you gonna be fightin wit a family member monet problem something im get that one chance for all this time in all these problems[.] [I’]m ah break yo ribs face all that wether its know or later[.] [I]’m tfy to kill you ass[.] [D]on’t wander why like its new to you[.] [T]he months can keep goin by but im still got one objective[.] [F]ind you and break youe teeth and face.”

A “selfie” photo on defendant’s cell phone taken July 11, 2015, showed defendant holding a gun. Detective Macaulay identified the gun as a semiautomatic Glock handgun.

On September 10, 2015, defendant appeared in court. Angelica was present in the courtroom. While standing inside a cage for in-custody defendants, defendant turned toward Angelica and made a motion with his hands as if he were racking a gun. A deputy sheriff ordered defendant to face forward but defendant did not and made another motion as if he were placing the barrel of the gun under his chin and then acted as if he held the barrel to his mouth and blew on it. Another deputy sheriff stood next to defendant to block Angelica’s view of defendant. When contacted outside the courtroom by the first deputy sheriff, Angelica appeared to be scared. She later said she saw defendant making hand gestures but refused to say he was threatening to shoot her with a gun.

At trial in May 2016, Angelica testified she and defendant would be together again “whenever he gets out.” She recanted her claims that defendant had physically abused her intentionally or threatened her, explaining she obtained a restraining order against him because he broke windows in her apartment. She denied she feared that he would harm or kill her, and denied she had ever seen him with a firearm.

Also at trial, the detective identified defendant as the man he had chased on August 7 but a witness who saw the suspect fleeing was unable to identify defendant as the man. For purposes of the counts charging defendant with being a convicted felon in possession of a firearm, the parties stipulated that defendant had previously been convicted of a felony.

DISCUSSION

I

Motion To Suppress

Defendant moved to suppress the evidence discovered on his cell phone as a warrantless search. The prosecutor opposed the motion, arguing defendant consented in that he agreed to a search condition of probation.

On appeal, defendant argues the probation search was unreasonable because his privacy interest in the data on his cell phone outweighed the government’s interest. He notes that the warrantless search occurred when he was in custody and 11 days after the officer seized his phone. The People respond that defendant consented to the search, citing his probation search condition, and the detective had reason to believe defendant’s cell phone contained evidence of defendant’s crimes.

At the suppression hearing, the parties stipulated to the testimony of Officer Michael Frazer who arrested defendant at a casino on August 22, 2015, on the arrest warrants for the events between July 21 and August 7, 2015. During a search incident to arrest, Officer Frazer discovered 41 amphetamine pills, some cocaine and marijuana, and a cell phone on defendant’s person. At the time of defendant’s arrest, he was on probation after having been convicted in 2010 for being a felon in possession of a firearm. A condition of probation provided: “Defendant shall submit his person, property and automobile and any object under Defendant’s control to search and seizure in or out of the presence of the Defendant by any law enforcement officer and/or probation officer at any time of the day or night, with or without his consent, with or without a warrant. The Defendant being advised of his constitutional rights in this regard and having accepted probation is deemed to have waived the same.”

On September 1, 2015, Detective Macauley obtained defendant’s cell phone from the property room and requested data extraction based on his knowledge of defendant’s text messages and the circumstances of his arrest. The detective explained he did not seek a search warrant because defendant was on felony probation and the law, at the time of the search, allowed law enforcement officers to rely on a search condition of probation rather than obtain a search warrant. The detective also testified he had more than sufficient probable cause to obtain a warrant for the cell phone had a warrant been required.

The officer who “did the actual dump of the cell phone” on September 2, 2015, (Detective Mello) filled out a worksheet indicating the “dump” was a “probation search.”

Citing Riley v. California (2014) 573 U.S. __ [189 L.Ed.2d 430] (Riley) and United States v. Lara (9th Cir. 2016) 815 F.3d 605 (Lara), defense counsel argued defendant’s search condition of probation did not extend to the data on defendant’s cell phone and that the warrantless search of defendant’s cell phone was unreasonable. Defense counsel also argued that defendant was not notified that the search condition extended to his cell phone. Defense counsel further argued exigent circumstances did not justify the warrantless search. Because the detective never spoke to the victim, defense counsel argued the detective did not have firsthand information that defendant’s cell phone might contain threatening text messages.

The prosecutor argued Riley did not address probation searches and that Lara was distinguishable as involving a probation search lacking suspicion. The prosecutor also argued that case law from federal courts suggesting warrantless probation searches might violate the Fourth Amendment did not exist at the time of the search of defendant’s cell phone.

The trial court denied defendant’s suppression motion. Although finding that defendant’s privacy interest in the data on his cell phone was “significant,” the court determined that the government’s interest was “sufficiently strong to support the conclusion that the search of Defendant’s cell phone was reasonable,” noting that defendant was on probation for a “very serious crime, with the risk of threats and violence,” citing the probation search condition which was broad and referred to any “object” in defendant’s control, and finding that the detective was credible when he testified that he had reason to believe, based on his review of police reports and his experience, that there would be evidence of defendant’s crimes and there would be threatening text messages defendant sent to the domestic violence victim on defendant’s cell phone. Even if unreasonable, the trial court found the detective acted in good faith and reasonably relied on established precedent to use the probation search condition to search defendant’s cell phone.

“ ‘In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards.’ [Citations.] ‘ “ ‘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.’ ” ’ [Citations.] [¶] ‘The Fourth Amendment to the federal Constitution prohibits unreasonable searches and seizures.’ [Citation.] ‘ “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” [Citation.] Our cases have determined that “[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant.” ’ [Citations.] ‘In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.’ [Citation.] The burden is on the People to establish an exception applies. [Citations.]” (People v. Macabeo (2016) 1 Cal.5th 1206, 1212-1213.)

Riley held that a warrant is generally required before searching the data stored on a cell phone when the cell phone is seized incident to arrest. (Riley, supra, 573 U.S. at p. ___ [189 L.Ed.2d at p. 442].) Riley stated that “even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone.” (Riley, at p. ___ [189 L.Ed.2d at p. 451].)

An exception to the warrant requirement is a consent search which does not exceed the scope of the consent. (Washington v. Chrisman (1982) 455 U.S. 1, 9-10 [70 L.Ed.2d 778, 786-787]; Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [36 L.Ed.2d 854, 858].) The scope of consent given in a probation search condition is determined by “what a reasonable person would understand from the language of the condition itself . . . .” (People v. Bravo (1987) 43 Cal.3d 600, 607; see Florida v. Jimeno (1991) 500 U.S. 248, 251 [114 L.Ed.2d 297, 302-303].)

Defendant argues Riley and Lara require a finding that the probation search here was unreasonable.

Lara applied the reasoning of Riley and the reasonableness analysis articulated in United States v. Knights (2001) 534 U.S. 112, 117-118 [151 L.Ed.2d 497, 503-505] and concluded that a warrantless search of a cell phone pursuant to a probation search condition was not reasonable. (Lara, supra, 815 F.3d at pp. 610-612, 614.) Knights decided the probation search was reasonable under the totality of the circumstances and did not decide whether the defendant’s acceptance of the search condition constituted consent as discussed in Scheneckloth. (Knights, at p. 118 [151 L.Ed.2d at pp. 504-505].) Only reasonable suspicion of criminal activity was required to search the probationer’s house. (Id. at p. 121 [151 L.Ed.2d at p. 506].)

The defendant in Lara was convicted of a nonviolent drug offense and agreed to submit his “ ‘property’ ” including a “ ‘container’ ” under his control to search at any time, with or without a warrant, probable cause or reasonable suspicion. (Lara, supra, 815 F.3d at pp. 607, 610.) A warrantless search was conducted on the defendant’s cell phone pursuant to the probation search condition and evidence of gun possession was discovered. (Id. at p. 608.) Lara balanced a probationer’s privacy interest (id. at pp. 611-612) against the government’s interest to combat recidivism and “help probationers integrate back into the community” (id. at p. 612) and determined the probation search condition did not authorize the unreasonable search of the cell phone (id. at p. 612).

Like the language in Lara, defendant argues the language of his probation search condition (“ ‘property’ ” and “ ‘object’ ”) does not include the data on his cell phone. Lara is not binding authority -- Bravo is. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Sandee (2017) 15 Cal.App.5th 294, 304.)

Under the objective test of Bravo, a reasonable person would understand defendant’s probation search condition as including a search of a cell phone in his possession. (People v. Bravo, supra, 43 Cal.3d at p. 607.) The plain language of defendant’s search condition shows that he agreed to a warrantless search of any “property” or “object” on defendant’s person by any law enforcement officer. Defendant agreed to the terms of the probation agreement. A reasonable person would understand that a cell phone is “property” or an “object.” The search of the cell phone in defendant’s possession was included in the language of his probation search condition. Thus, the consent exception applies here.

Moreover, even assuming reasonable suspicion of criminal activity is required to search defendant’s cell phone, the detective had more than a reasonable suspicion that defendant’s cell phone would have threatening text messages he sent to the victim since responding officers had seen the victim’s cell phone with the threatening text messages defendant had sent to the victim. The trial court did not err in denying defendant’s motion to suppress the evidence obtained in the search of the cell phone.

II

Application Of Section 654

As relevant to defendant’s section 654 claim, the trial court imposed the midterm of three years for second degree robbery with a consecutive 10-year firearm enhancement (§ 12022.53, subd. (b)), a consecutive one-third the midterm or eight months for criminal threats with a consecutive one-third the midterm or 16 months for the firearm enhancement (§ 12022.5, subd. (a)), and a concurrent midterm of two years for felon in possession of a firearm.

Defendant contends section 654 barred punishment for the felon in possession count because the court imposed punishment on the firearm enhancements attached to the robbery and the criminal threats.

Section 654 provides, in relevant part, as follows:

“(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”

The People respond that the specific language of section 12022.53, subdivision (b) [“Notwithstanding any other provision of law . . . .”] constitutes an express exception to section 654. In his reply brief, defendant concedes this point with respect to the section 12022.53, subdivision (b) firearm enhancement.

We agree that the language of section 12022.53, subdivision (b) constitutes an express exception to the application of section 654. (People v. Palacios (2007) 41 Cal.4th 720, 726-728; People v. Ramirez (1995) 33 Cal.App.4th 559, 573.)

With respect to the firearm enhancement attached to the criminal threats count, section 12022.5, subdivision (a) does not contain similar language. The People acknowledge the lack of similar language but argue that defendant would receive a section 654 “windfall” if section 654 is applied. For different reasons, we conclude that section 654 does not apply.

Whether a violation of section 29800, prohibiting a convicted felon from possessing a firearm, constitutes a divisible transaction from an offense in which the defendant used the firearm depends upon the facts and circumstances of the case. (People v. Bradford (1976) 17 Cal.3d 8, 22.) “[S]ection 654 will not bar punishment for both firearm possession by a felon (§ 12021, subd. (a)(1) [(now § 29800)]) and for the primary crime of which the defendant is convicted” where the convicted felon “commits a crime using a firearm, and arrives at the crime scene already in possession of the firearm, [so that] it may reasonably be inferred that the firearm possession is a separate and antecedent offense, carried out with an independent, distinct intent from the primary crime.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1141.) Jones held that section 654 did not bar punishment for both convicted felon in possession of a firearm and shooting at an inhabited dwelling where the defendant must have possessed the firearm before he drove toward the victim’s house at which the defendant fired several shots. (Jones, at pp. 1142-1143, 1147-1148; see also People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412-1414.)

Multiple punishment is barred by section 654, however, where the facts show that “ ‘fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense.’ ” (People v. Garcia (2008) 167 Cal.App.4th 1550, 1565; People v. Ratcliff, supra, 223 Cal.App.3d at p. 1412.) Section 654 also applies when a defendant is “charged with a crime for the manner in which he acquired the gun, then charged with another crime for possessing the gun after he acquired it.” (People v. Atencio (2012) 208 Cal.App.4th 1239, 1245.)

Here, the evidence establishes that defendant arrived at Angelica’s apartment already carrying a gun on his person which he pulled out and ordered David A. to empty his pockets. After robbing David and striking him in the face with the gun, defendant pointed the gun at Angelica who had called 911 and threatened to kill her. When told she was on the phone with the police, he fled the scene taking his gun. Defendant did not just happen upon the gun during the commission of his offenses. He had the gun with him when he arrived, used the gun in committing the offenses, and then took the gun when he fled.

Defendant’s separate punishment for his possession of a firearm is consistent with the purpose underlying section 654 of ensuring that his punishment is commensurate with his culpability. The trial court did not err in imposing a concurrent term for the felon in possession count.

III

New Law Permitting Striking Firearm Enhancements

Defendant contends he is entitled to the benefit of the change in the law which allows the sentencing court to exercise discretion to strike or dismiss the firearm use enhancements.

When the trial court imposed sentence in July 2016, the firearm enhancements were mandatory and the trial court did not have any discretion to strike them. Effective January 1, 2018, section 12022.53, subdivision (h) now allows a court to exercise discretion under section 1385 to strike or dismiss the enhancement imposed under that section: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (Stats. 2017, ch. 682, § 2 (Sen. Bill No. 620).) Likewise, section 12022.5, subdivision (c) now allows the court to strike or dismiss the enhancement. (Stats. 2017, ch. 682, § 1.)

The People concede that the amendment applies retroactively to defendant’s case because it is not yet final. We agree. (People v. Woods (2018) 19 Cal.App.5th 1080, 1091.) Thus, the amendments apply to defendant’s appeal.

The People argue, however, that remand is not appropriate here because the record does not reflect the court would have exercised its discretion to strike the firearm enhancements. Defendant replies that remand is necessary for the trial court to exercise its sentencing discretion since the sentence imposed at the time of the original sentencing shows the trial court was willing to grant some leniency.

The trial court imposed the section 12022.53, subdivision (b) enhancement because it was required. The trial court made no particular statement in imposing the section 12022.5 enhancement.

We conclude that the record does not clearly indicate that the court would not have exercised its discretion to strike or dismiss the sections 12022.53, subdivision (b) and 12022.5, subdivision (a) enhancements had it been possible to do so at the time of the original sentencing. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13; see also People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)

DISPOSITION

The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded to the trial court for the purpose of allowing the court to exercise its discretion whether to strike or dismiss the enhancement under section 12022.53, subdivision (b) and section 12022.5, subdivision (a). Upon doing so, the court shall resentence defendant accordingly.

/s/

Robie, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Butz, J.