P. v. Willams
Filed 7/16/13 P. v. Willams CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
EMMANUEL DONTEZE WILLIAMS,
Defendant
and Appellant.
E054765
(Super.Ct.No.
FSB903058)
OPINION
APPEAL
from the Superior Court
of
Bernardino County. J.
David Mazurek, Judge. Affirmed.
Stephen
M. Lathrop, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and
Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant
Emmanuel Donteze Williams guilty of (1) nine counts of
(§§ 664, 211); (3) one count of kidnapping for the purpose of committing
robbery (§ 209, subd. (b)(1)); and (4) one count of
subd. (a)(1)). For eight of the robbery
counts, the attempted robbery count, and the kidnapping count, the jury found
true the enhancement allegation that defendant used a firearm during the
commission of the crimes pursuant to section 12022.53, subdivision (b). As to the assault count, the jury found true
the enhancement allegation that defendant personally used a firearm during the
commission of the offense pursuant to section 12022.5, subdivision (a). The trial court sentenced defendant to prison
for a determinate term of 58 years, 2 months, and an indeterminate term of life
with the possibility of parole.
Defendant
raises four issues on appeal. First,
defendant asserts the evidence supporting his assault conviction does not meet
the substantial evidence
standard. Second, defendant contends the
evidence supporting his kidnapping conviction does not meet the substantial
evidence standard. Third, defendant
asserts the trial court erred by denying his
the search warrant. Fourth, defendant
contends his trial attorney rendered ineffective assistance during the hearing
on the motion to suppress evidence. We
affirm the judgment.
A. SAN BERNARDINO
ROBBERY
On
July 21, 2009, at
approximately 2:00 a.m., Gordon
Goodale and Curtis Bodenbender were performing construction work on a
McDonald’s drive-thru window. The McDonald’s
was located near Highland Avenue
and Del Rosa Drive in the
City of San Bernardino. The drive-thru portion of the restaurant was
open 24 hours, so Goodale barricaded the drive-thru to block traffic from
coming through during the construction.
The interior portion of the restaurant closed at 11:00 p.m. or midnight;
therefore, there were no customers in the restaurant. However, three McDonald’s employees were
working in the restaurant. Goodale was
performing construction work outside the restaurant, while Bodenbender was
working inside the restaurant.
As
Goodale was unloading boxes outside, two African-American men approached him
holding guns. The taller of the two men
was holding a revolver, while the shorter man (defendant) was holding an automatic
gun with a silver slide. The taller man
(defendant’s accomplice) instructed Goodale “to get on the ground . . . face
down.†The accomplice placed the gun
against Goodale’s head and demanded Goodale’s money, wallet, and
telephone. Goodale gave the accomplice
his wallet, but told him he did not have money or a telephone.
Bodenbender
heard Goodale talking, so he looked outside the window. Bodenbender saw a man pointing a gun at
Goodale, so he told the McDonald’s manager to press the panic button. The restaurant manager pressed a panic button
located in a cash register. Defendant
climbed through the drive-thru window.
When Bodenbender turned around, defendant was pointing a gun at
Bodenbender’s face. Defendant commanded
the manager to open the cash registers, which she did. Defendant then instructed the manager to open
the safe. The manager opened the safe,
while defendant raised his gun. After
the safe was opened, defendant instructed Bodenbender and the manager to lie
face down on the floor.
Defendant’s
accomplice instructed Goodale to stand up and open the restaurant door. Goodale ran to the restaurant door, but it
was locked. The accomplice then
instructed Goodale to go back to the drive-thru window and climb through it,
which Goodale did. The accomplice then
entered the restaurant by crawling through the drive-thru window. Goodale was taken to the kitchen area, where
he laid face down. Goodale saw the safe
was already opened, and defendant was taking money from a cash register. One of the men demanded Bodenbender’s
telephone and wallet, but Bodenbender explained they were in the construction
truck.
A
McDonald’s employee, Maricela Camacho, was in the restroom when the robbery
began. When Camacho exited the restroom,
she walked toward the robbers. One of
the robbers grabbed Camacho by her hair and threw her face down onto the
ground. The man went through Camacho’s
pockets and took her wallet.
The
restaurant manager was “a little hysterical.â€
Defendant’s accomplice yelled at the manager for looking at him. He said to the manager, “‘What you lookin’
at, bitch?’†The robbers’ faces were
covered with bandanas. Goodale told the
manager to be quiet and stay on the ground.
The robbers exited the restaurant via the drive-thru window. Goodale told everyone to stay on the floor to
make sure the robbers were gone. Three
or four minutes later, police officers arrived.
The robbers took approximately $1,400 from the McDonald’s, as well as
$50 worth of gift certificates, which came in $5 booklets. The gift certificates were kept in the safe.
Maria
Moreno, a McDonald’s employee, stored her purse in the restaurant office while
she worked. Moreno
was washing dishes when the robbery began, and she hid in the restaurant’s
walk-in freezer during the robbery.
While in the freezer, Moreno
pressed a panic button. Moreno
exited the freezer after the robbery ended.
Moreno saw her purse was
open, and her wallet and telephone were missing. Moreno
had approximately $400 in her wallet.
The
shorter robber (defendant) was approximately five feet, seven inches tall, 145
pounds, and wore a black hoodie, dark pants, and dark shoes. The taller robber (the accomplice) was
approximately five feet, ten inches tall, 170 pounds, and also wore a
hoodie. The only portion of the robbers’
faces that were exposed were their eyes and foreheads—the rest of their faces
were covered by their bandanas.
B. REDLANDS
ROBBERY
Another
McDonald’s was located in the City of Redlands,
on Redlands Boulevard at Alabama
Street. On July 22, 2009, Martin Trujillo was
working as the manager at the Redlands McDonald’s. At approximately 1:30 a.m. on July 22, five construction workers were
working on the restaurant performing renovation work. The interior portion of the restaurant was
closed due to the construction, but the drive-thru remained opened. The construction workers were going in and
out of the front door to fetch tools, so the front doors were unlocked. Trujillo
was working in the restaurant’s office counting cash. A second McDonald’s employee, Reyna Cotero,
was working in the dishwashing area.
Noel
Mendoza, a construction worker, was working at the Redlands McDonald’s at 1:30 a.m. on July 22 when three men entered, at
least one of the three men was holding a gun. The men were wearing black hooded sweatshirts
and bandanas around their faces. The
only portion of the men’s faces that were visible was the part above the nose. One of the three men demanded Mendoza’s
money, wallet, and telephone. The man
then patted Mendoza down and took
his wallet.
One
of the robbers was African-American, 18 to 20 years old, approximately five
feet, seven inches tall, with a thin build, and he was holding a semiautomatic
gun with a silver slide. The second
robber also appeared to be 18 to 20 years old and approximately five feet,
seven inches tall with a thin build. The
third robber was African-American, with a thin build, and appeared young.
The
robbers told the construction workers, “‘Get face down on the ground.’†The construction workers laid on the
ground. One of the robbers took a
telephone and cash from a construction worker, Mike Wickett. The robbers also took the telephone, wallet,
and cash from a third construction worker, John Chappell. Chappell had approximately $75 cash in his
pocket.
Mendoza
identified defendant as one of the robbers.
Mendoza recognized defendant by his “cheekbone, upper [face] area†and
“his skinny build.†Mendoza looked into
defendant’s eyes during the robbery and was approximately an arm’s length away
from him. Mendoza believed defendant was
the robber who was holding the semi-automatic gun with a silver slide.
Trujillo,
who had been working in the office, heard someone say “‘blood,’†and then the
restaurant became quiet. Trujillo left
the office to see what was happening.
Trujillo saw the construction workers lying face down on the floor and
three African-American men with bandanas on their faces. Defendant told Trujillo to open the safe, and
threatened to shoot him if he did not comply.
Defendant placed a gun against Trujillo’s head while he opened the
safe.
Cotero,
who was in the dishwashing area, heard a person saying “bad words,†so she
moved to an area where she could hear exactly what was being said, because she
thought the construction workers were arguing.
Trujillo told Cotero to leave the restaurant, but there was no way for
Cotero to exit. Cotero turned around and
saw defendant wearing a black hoodie, with a bandana over his face, pointing a
gun at Trujillo’s head. Defendant moved
towards Cotero, grabbed her by the back of her apron, and said, “‘Where are you
going?’†Defendant pulled Cotero into
the office where the safe was located.
As
defendant held the gun toward Trujillo’s head, another man took money from the
safe. The men also took money from the
restaurant’s cash drawers. Trujillo was
unsure how much money was taken from the restaurant. The robbers exited the restaurant via the
front door. One of the construction
workers called the police. Trujillo and Mendoza
went outside; the robbers were gone, but there was a “good amount†of money on
the ground.
C. INVESTIGATION
Redlands
Police Detective Williams was assigned to the robbery at the Redlands
McDonald’s. Investigating Officer Cao
informed Detective Williams that Wickett’s GPS-equipped cellular telephone was
taken during the robbery. The telephone
company and Wickett gave Officer Cao permission to “ping†the telephone. Pinging a telephone refers to tracking the
telephone via its GPS technology. At
2:49 a.m. the telephone was pinged. The
pinged location of the telephone was Arden Avenue and 20th Street in the City
of San Bernardino. The telephone was
pinged again at 4:21 a.m. and was at the same Arden Avenue location.
Detective
Williams spoke to Detective Hudson of the San Bernardino Police Department, who
was investigating the July 21 robbery at the McDonald’s in San Bernardino. Detective Williams viewed the surveillance
photographs of the San Bernardino robbery, which were digital color photographs. Detective Williams decided to have Wickett’s
phone pinged again at 11:00 a.m. The
telephone was still at the Arden Avenue location. Detective Williams had Wickett’s telephone
pinged once more at 1:00 p.m., and it was still at the Arden Avenue location. The GPS coordinates specifically referred to
“Building B†of an apartment complex at 2011 Arden Avenue.
At
2:40 p.m. Detective Williams assembled a team of officers at the Arden Avenue
apartment complex. Officers searched the
exterior area of Building B, including the roof, for the telephone, but did not
locate the phone. Detective Williams
then tried contacting the building’s residents.
One of the residents Detective Williams spoke with was Lillian Jackson,
in apartment B-209. A little after 3:00
p.m., while in Jackson’s apartment, Detective Williams saw defendant. Defendant was laying face down on a bed in
the apartment. Defendant was wearing a
belt similar to one worn by one of the robbery suspects—a black belt decorated
with silver metal studs that created a checkerboard pattern; some of the metal
studs were missing.
Detective
Williams found a shoe “stuffed with a large amount of cash†next to the bed
that defendant was laying on. There was
also cash (1) under the mattress defendant was lying on, and (2) in the bed’s
box spring. In total, $1,424 in cash was
found in the bedroom. Also under the
mattress, Detective Williams found a telephone belonging to one of the Redlands
McDonald’s construction workers. The
battery had been removed from the phone, but it was also under the
mattress. The phone under the mattress
was Wickett’s phone, which police had been pinging.
In
a kitchen drawer, police found a booklet of McDonald’s gift certificates. There were also two cellular telephones in the
kitchen drawer. In a closet, police
found more cellular telephones. On the
floor in a bedroom, police found another cellular telephone. The other telephones that were found (those
not belonging to Wickett) lacked battery power, and therefore the police were
unable to turn them on. In a cabinet,
police found the wallet and government identification card belonging to Moreno,
the San Bernardino McDonald’s employee who hid in the freezer during the
robbery.
On
a television stand, police found multiple booklets of McDonald’s gift
certificates. Another gift certificate
booklet was located on a computer stand.
In total, approximately 40 gift certificate booklets were found in the
apartment. The gift certificate booklets
were marked with serial numbers. Gift
certificate booklets belonging to the San Bernardino McDonald’s were within
serial numbers NZ162401 and NZ169400.
The booklets found in defendant’s apartment fell within the foregoing
serial numbers.
While
Detective Williams was talking to Jackson, another male resident of the
apartment, Q.F., arrived. Detective
Williams believed Q.F. was 15 or 16 years old and approximately five feet, six
inches tall. During the investigation,
Detective Williams did not discover any evidence reflecting Q.F. resided in the
bedroom where defendant, the cash, and Wickett’s telephone were found. Jackson told Redlands Police Detective
Zimmerman that when she went to sleep around midnight on the night of the
Redlands robbery, Q.F. was at home but defendant was not home.
D. DEFENSE
We
now present the defense evidence.
Detective Hudson investigated the robbery at the San Bernardino
McDonald’s. As part of the
investigation, Detective Hudson reviewed the restaurant’s surveillance
video. Detective Hudson saw the first
person that came through the drive-thru window was wearing a blue hooded
sweatshirt, jeans, a black belt with metal studs, and white tennis shoes. The second suspect who came through the
drive-thru window was wearing a black hooded sweatshirt, jeans, and black
tennis shoes with a white stripe.
Q.F.’s
juvenile booking information reflected he weighed approximately 200 pounds and
was five feet, eight inches tall. Q.F.
was Jackson’s son; defendant was Jackson’s nephew. Jackson testified that Q.F. and defendant
shared a bedroom with Jackson’s two daughters; however, Q.F. often slept in a
living room chair. The apartment had a
total of two bedrooms. On the night of
the Redlands robbery, Jackson believed Q.F. was at home when she went to sleep
around midnight or 1:00 a.m. Jackson
recalled defendant going out the night of the Redlands robbery, but she was
unsure of the exact timeframe.
On
the day police arrived at Jackson’s apartment, when she woke up she saw Q.F.’s
friend, Lamar, sleeping on the living room floor. Lamar was 16 or 17 years old, approximately
five feet, six inches tall, with a thin build.
Jackson stated that in 2009, Q.F. was approximately five feet, five inches
tall and 170 pounds, with a medium build—he did not weigh “anything close†to
200 pounds.
Some
of the cellular telephones police took from Jackson’s apartment belonged to
Jackson. Jackson provided for her
children by working and collecting county assistance. Jackson stated that in July 2009 she needed
money to move out of the apartment, but she “didn’t have enough. [She] didn’t have nothing.†Jackson had not seen the McDonald’s gift
certificate booklets in the house, and Q.F. did not ask for money to purchase
the booklets. Defendant was 18 years old
in July 2009, but he was unemployed.
A. ASSAULT WITH A FIREARM
Defendant
contends the evidence supporting his conviction for assaulting Cotero with a
deadly weapon (§ 245, subd. (a)(1)) does not satisfy the substantial evidence
standard. Specifically, defendant argues
that his behavior perhaps amounts to brandishing a weapon, but does not rise to
the level of assault. We disagree.
“‘When
reviewing a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is evidence
that is reasonable, credible, and of solid value—from which a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation]
‘[T]he relevant question is 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.’
[Citations.] ‘[I]t is the jury,
not the appellate court which must be convinced of the defendant’s guilt beyond
a reasonable doubt.’ [Citation.]†(People
v. Lewis (2009) 46 Cal.4th 1255, 1289-1290, fn. omitted.)
“Section
240 defines assault: ‘An assault is an
unlawful attempt, coupled with a present ability, to commit a violent injury on
the person of another.’†(
734, 739.) “Although temporal and
spatial considerations are relevant to a defendant’s ‘present ability’ under
section 240, it is the ability to inflict injury on the present occasion that
is determinative, not whether injury will necessarily be the instantaneous
result of the defendant’s conduct.†(
1171.)
At
the beginning of the Redlands robbery, Cotero was in the dishwashing area. Cotero heard “bad words†being said so she
moved to an area where she could hear if the construction workers were
arguing. Trujillo told Cotero to leave
the restaurant, but there was no way for Cotero to exit. When Cotero turned around she saw defendant
wearing a black hoodie, with a bandana over his face pointing a gun at
Trujillo’s head. Defendant moved towards
Cotero, grabbed her by the back of her apron, and said, “‘Where are you
going?’†Defendant pulled Cotero into
the office where the safe was located.
Defendant told Cotero to stay in the office where he could see her. While the gun was pointed at Trujillo,
defendant said, “‘Open the safe. If you
don’t open it, I’m gonna shoot you.’â€
The gun was placed against Trujillo’s head.
The
implication created by the evidence is that if Cotero resisted defendant
pulling her into the office, or if she tried to leave the office, then
defendant would shoot her. In other
words, defendant’s acts of pulling Cotero by the back of her apron while
holding a gun and threatening to kill Trujillo create the logical inference
that Cotero was also under threat of imminent gun violence if she did not
comply with defendant’s demands. Thus,
substantial evidence supports defendant’s conviction for assault with a deadly
weapon.
Defendant
contends the assault conviction is not supported by the record because there is
no evidence the gun was ever pointed at Cotero.
“Pointing a gun at the ground and swinging it about the head while
stating, ‘“‘Don’t come any closer; your life is in danger,’â€â€™ does not
constitute the crime [of assault] at all.
[Citation.] [¶] On the other hand, an illegal but conditional
threat to shoot where the gun is pointed only at the ground may be sufficient. [Citation.]â€
(People v. Heckathorne (1988)
202 Cal.App.3d 458, 467.)
In
this case, defendant made a conditional threat to shoot Trujillo in Cotero’s
presence, while the gun was placed against Trujillo’s head. Defendant had pulled Cotero into the office
with the second victim and told her to stay where he could see her. The implied threat in the foregoing situation
is that Cotero would be shot if she left the office or did not comply with
defendant pulling her into the office.
Thus, even though the gun was pointed at Trujillo, as opposed to Cotero,
we conclude defendant’s conviction is supported by substantial evidence.
Defendant
also appears to assert his conviction is not supported by the record because
there is not substantial evidence the gun was loaded. “A long line of California decisions hold
that an assault is not committed by a person’s merely pointing an (unloaded)
gun in a threatening manner at another person.
[Citations.]†(See
11, fn. 3.) In determining whether a gun
was loaded, a jury may rely on “a defendant’s statements and behavior while
making an armed threat against a victim.â€
(Id. at p. 12.) For example, a defendant pointing a gun at a
victim and saying, “‘I have got you now,’†would support a finding the firearm
was loaded because the words “would be meaningless unless the weapon were
loaded.†(Id. at p. 13.)
In
this case, defendant held the gun against Trujillo’s head while saying, “‘Open
the safe. If you don’t open it, I’m gonna
shoot you.’†Defendant’s act of placing
the gun against Trujillo’s head while threatening to shoot supports a finding
that the gun was loaded while Cotero was in the office with defendant and the
gun. Placing the gun against Trujillo’s
head and threatening to shoot logically means the gun is loaded, thus a
reasonable inference can be made that defendant’s gun was loaded. (People
v. Rodriguez, supra, 20 Cal.4th
at p. 13 [“[D]efendant’s command to the victim to halt or ‘I’ll shoot’
indicated the gun was then loadedâ€].)
Accordingly, there is substantial evidence defendant’s gun was loaded.
B. KIDNAPPING
Defendant
asserts the evidence supporting his kidnapping
(§ 209, subd. (b)(1)) conviction does not meet the substantial evidence
standard. Defendant argues the movement
of Goodale was incidental to the commission of the San Bernardino robbery, and
did not substantially increase the risk of harm beyond that inherent in the
offense. We disagree.
The
substantial evidence standard of review is set forth ante, so we do not repeat
it here. In order to be found guilty of
kidnapping to commit robbery, “the movement of the victim [must be] beyond that
merely incidental to the commission of, and increase[] the risk of harm to the
victim over and above that necessarily present in, the . . .
underlying offense.†(§ 209, subd.
(b)(2).) “These two elements are not
mutually exclusive but are interrelated.
[Citations.]†(
870.)
As
to the incidental movement issue, “the jury considers the ‘scope and nature’ of
the movement, which includes the actual distance a victim is moved. [Citation.]
There is, however, no minimum distance a defendant must move a victim to
satisfy†this element. (
For the second element (increased harm), the factors that must be
considered are “‘“the decreased likelihood of detection, the danger inherent in
a victim’s foreseeable attempts to escape, and the attacker’s enhanced
opportunity to commit additional crimes.
[Citations.] The fact that these
dangers do not in fact materialize does not, of course, mean that the risk of
harm was not increased.â€â€™
[Citations.]†(
Outside
the San Bernardino McDonald’s, defendant’s accomplice instructed Goodale “to
get on the ground . . . face down.†The
accomplice placed the gun against Goodale’s head and demanded Goodale’s money,
wallet, and telephone. Goodale gave the
man his wallet.
After
the accomplice took Goodale’s wallet, he instructed Goodale to stand up and
open the restaurant door. Goodale ran to
the restaurant door, but it was locked.
The accomplice then instructed Goodale to go back to the drive-thru
window and climb through it, which Goodale did.
The accomplice then entered the restaurant by crawling through the
drive-thru window. Goodale was taken to
the kitchen area, where he laid face down.
Goodale saw the safe was already opened, and defendant was taking money
from a cash register.
In
the area around the San Bernardino McDonald’s there was a pizza restaurant, a
bowling alley, a bank, and a Jack in the Box restaurant. The Jack in the Box was open 24 hours, and it
was located across the street from the McDonald’s. Goodale was moved after defendant’s
accomplice stole his wallet and after defendant was already inside the
restaurant. By moving Goodale inside,
defendant and his accomplice decreased the likelihood of detection because
people across the street at the Jack in the Box would be less likely to see
Goodale’s distress and need for help.
Additionally, moving Goodale inside the restaurant enhanced defendant’s
opportunity to commit additional violent crimes against Goodale, should Goodale
attempt to escape or resist. If Goodale
remained outside, he would have had a better chance to escape violence than
being inside a restaurant where the only means of escape appeared to be through
a window. Accordingly, the second prong
is supported by substantial evidence.
The
movement of Goodale was not merely incidental to the robbery because Goodale
was moved after his wallet was taken and after defendant was already inside the
restaurant with the safe open. Thus, a
majority of the robbery was accomplished prior to Goodale being moved
inside. Therefore, it appears Goodale
was moved inside for the purposes of controlling him and exposing him to
greater risk while the robbery was completed.
Accordingly, we conclude the first prong is also supported by
substantial evidence.
Defendant
contends the first prong is not met because Goodale was moved into the
restaurant for the purpose of facilitating the robbery—he was only moved in
order to successfully complete the robbery.
We do not find this argument to be persuasive because Goodale was moved
after his wallet was taken and after the restaurant safe was opened. Defendant’s accomplice had a gun to Goodale’s
head; he could have stayed outside with Goodale on the ground. Instead, the accomplice required Goodale to
climb through the restaurant window—into a space with little chance for escape,
which created a greater ability to control Goodale by threat of violence. Thus, we find defendant’s argument to be
unpersuasive.
Defendant
asserts moving Goodale was necessary to accomplish the robbery because the number
of victims was greater than the number of robbers, so the robbers needed all
the victims in one place in order to successfully complete the robbery. Again, we find this argument to be
unpersuasive because the safe was open and Goodale’s wallet had been taken
necessary for the sake of a successful robbery, as most of the robbery was
completed prior to moving Goodale.
Next,
defendant argues that moving Goodale did not substantially increase the risk of
harm to Goodale beyond that inherent in the robbery. Defendant reasons Goodale was moved from an
area where he was alone to an area with other victims and panic buttons, and
therefore the increase in danger was not substantial. We disagree with defendant’s argument because
the movement placed Goodale in an enclosed space where non-victim witnesses
were less likely to see his distress, where it was more difficult to escape,
and where there was greater opportunity for defendant and/or his accomplice to
commit a violent act without detection by a passersby.
C. SEARCH WARRANT
1. PROCEDURAL
HISTORY
a) Defendant’s Motion
On
April 27, 2011, defendant filed a motion to quash the search warrant and
“suppressing as evidence all items taken†from Jackson’s apartment. Defendant asserted the initial entry and
search of the residence were unlawful and therefore the search warrant
affidavit contained information from an illegal search, which caused any
evidence obtained in the apartment to be “‘fruit of the poison[ous]
tree.’†Defendant asserted (1) police
officers initially entered Jackson’s apartment without consent, and (2) there
were no exigent circumstances requiring a protective sweep of the
apartment.
b) The Prosecution’s Opposition
The
prosecution made the following argument in opposition to the motion:
“[A]ssuming that the items located under the mattress [were] illegally found
upon the initial consent entry, the locating of the cell phone that was pinged
does support the affiant’s declaration that the victim’s cell phone was pinged
to that location. Therefore, the other
statements made by the affiant should be seen as truthful and credible.†The prosecution asserted there was probable
cause for the search warrant
independent of a possibly illegal initial search. Specifically, the fact that Wickett’s cell
phone was pinged to the general location of Jackson’s apartment created an
independent source of probable cause that would have supported a search
warrant.
c) The Prosecution’s Evidence
On
August 8, 2011, the trial court held a hearing on defendant’s motion to
quash. Detective Williams testified at
the hearing. Detective Williams
described pinging Wickett’s telephone.
The GPS coordinates indicated the telephone was in Building B of 2011
Arden Avenue, on the north side of the building. There were four apartments on the north side
of the building. Detective Williams
knocked on all the doors including Jackson’s door; no one answered the doors at
the other three apartments. An audio
recorder recorded the conversation between Detective Williams and Jackson. The audio recording of the conversation was
played at the hearing.
The
transcript reflects the following:
Jackson opened the door and greeted Detective Williams. Detective Williams introduced himself and
asked if anyone in the house was on parole or probation. Jackson responded that defendant and Q.F.
were on probation. Detective Williams
then asked, “Can I talk to you for a minute?â€
At which point it appeared Detective Williams stepped inside the
apartment as Jackson said, “[Y]ou kind of have to excuse the house because we
are in the process of moving out.†As
the conversation progressed it appeared Detective Williams was moving through
the apartment because he began talking to a male, presumably defendant, because
Q.F. was said to be outside. Detective
Williams asked defendant if he was on felony probation and defendant responded,
“Yes.â€
Jackson
asked why the police were at the house and “what’s goin[g] on.†Jackson asked, “Can you all tell me what’s
going on?†Jackson did not receive an
answer and then said, “I wanna know what’s goin[g] on, because my house [is]
being searched and I don’t know what the fuck is going on.†Detective Williams asked defendant who his
probation officer was and whether he had search terms as part of his
probation. Defendant responded that he
had search terms as part of his probation and that he resided in Jackson’s
house.
Jackson
then said, “Call my sister. Tell her
[to] get the hell over here. I don’t
know what the hell is goin[g] on.
Somebody needs to tell me some[thing], she need[s] to come now.†Detective Williams noticed defendant wearing
a belt that matched a metal-type belt worn by one of the robbery suspects. It appeared an officer looked under
defendant’s bed, because Detective Williams said, “This is where GPS to [
Found this attached under the bed.
We got batteries.†Detective
Williams told Jackson he was conducting a theft investigation, and said he
wanted her to wait in a different room while he investigated. Jackson responded, “I hope you all don’t
mistake [sic] and take none of my
shit, okay?â€
Detective
Williams then began speaking to another male, presumably Q.F. Detective Williams asked if Q.F. was on
parole or probation. Q.F. responded that
he was on misdemeanor probation, but he was unsure whether search terms were
part of his probation. An officer in the
background said, “He has a cell phone.â€
Detective Williams questioned whether any of the cell phones found in
the apartment were Wickett’s phone.
Detective
Williams called Detective Hale of the San Bernardino Police Department. Detective Williams told Detective Hale he
found a male wearing a silver belt at the address where Wickett’s telephone was
pinging. Detective Williams also told
Detective Hale, “And I have a bunch of wads [of] cash from under the bed.†Detective Williams told Detective Hale he was
“freezing†the apartment. Detective
Williams instructed other officers not to go into the apartment.
When
questioned by another officer who seemingly wanted to search the apartment,
Detective Williams reminded the officer that they did not know for sure whether
defendant or Q.F. was on probation because officers had not yet confirmed the
information with juvenile hall.
Detective Williams and the other officer discussed whether the better
option would be (1) confirming Q.F.’s and defendant’s probation status with
juvenile hall, or (2) obtaining a search warrant. Detective Williams decided to get a search
warrant.
In
testifying at the hearing, Detective Williams stated that when he asked to
speak with Jackson she agreed and stepped back, gesturing for him to enter the
apartment. At that point Detective
Williams entered. Jackson began moving
toward the back of the apartment.
Detective Williams became concerned for his safety, because
(1) firearms were used in the two robberies, (2) Jackson stated two males
lived in the apartment whom Detective Williams had not yet seen; and (3)
Jackson stated the two males were on the patio, when it appeared no one was on
the patio, thus leading Detective Williams to believe people were hiding in the
apartment. Detective Williams and
Detective Zimmerman followed Jackson as she moved toward the back of the
apartment. When walking through the
apartment, Detective Zimmerman saw defendant and motioned to Detective Williams
to look in defendant’s bedroom.
Detective Williams began speaking to defendant. After defendant stood up and began speaking
to Detective Williams, Detective Zimmerman moved defendant’s mattress.
Detective
Zimmerman told Detective Williams he “flipped up†defendant’s mattress and
found “wads of cash and a cellular telephone.â€
Detective Williams explained Detective Zimmerman was “clearing†the
bedroom by looking under furniture or places where individuals could hide. Detective Williams then “froze†the apartment
while he applied for a search warrant.
d) Defendant’s Evidence
Jackson
also testified at the hearing. Jackson
testified she invited Detective Williams into her home to speak with her. Once inside, Detective Williams asked Jackson
to sit down. Detective Williams or
Detective Zimmerman walked to the back of the apartment and found defendant,
while Jackson was seated in a chair “by the back door.â€
e) The Probable Cause Statement
The
statement of probable cause attached to Detective Williams’s search warrant
application described the robberies at the two restaurants, and the property
that was taken. It also described
pinging Wickett’s cellular telephone and the GPS coordinates pointing to 2011
Arden Avenue, Building B. Detective
Williams described Jackson inviting him into her apartment to speak with
her. Detective Williams explained that
he and Detective Zimmerman conducted a protective sweep of the apartment to
locate any other people in the apartment, due to firearms being involved in the
robbery.
Detective
Williams saw defendant lying in a bedroom; the bedroom door was
“wide-open.†Detective Williams saw
defendant was wearing “a checkered-white diamond pattern belt,†which matched
the belt worn by a suspect during the two robberies. Detective Williams set forth that both
defendant and Q.F. admitted being on probation.
Detective Williams described looking under defendant’s mattress and
finding large bundles of cash and a cellular telephone battery, which matched
the brand of Wickett’s cellular telephone.
Detective Williams opined that searching Jackson’s apartment would lead
to more evidence related to the two restaurant robberies.
f) Trial Court’s Ruling
The
trial court denied the motion to suppress.
The trial court concluded, “Detective Williams had consent to, number
one, talk to Ms. Jackson, and, number two, to enter the apartment to talk to
her.†The trial court further noted
Jackson did not ask Detective Williams to leave the apartment. Additionally the trial court found it was
reasonable for the detectives to conduct a protective sweep of the apartment
given that (1) Wickett’s cellular phone was pinged to the general location of
Jackson’s apartment, (2) defendant matched the description of a suspect
involved in the robberies, (3) defendant was wearing a distinctive belt
that matched a belt worn during the two robberies, (4) there were firearms used
during the robberies, and (5) there were people unaccounted for who lived in
the apartment, e.g., Q.F.
2. ANALYSIS
a) Contentions
Defendant
raises a combination of arguments under a single heading. (Cal. Rules of Court, rule 8.204(a)(1)(B)
[separate headings].) First, defendant
asserts his trial counsel was ineffective for (1) not arguing that the
protective sweep was illegal, (2) failing to argue the probable cause
statement contained deliberate lies or that Detective Williams had a reckless
disregard for the truth, and (3) not obtaining a ruling from the trial
court on the issue of whether the search warrant was valid.
Second,
defendant contends the trial court erred by denying his motion to suppress
evidence because (1) Jackson did not consent to the detective searching her
apartment, (2) a protective sweep of the apartment was not justified and was an
illegal search, and (3) the affidavit in support of the warrant application
contained lies.
b) Denial of the Motion
We begin our
analysis with defendant’s contention that the trial court erred by denying the
suppression motion because (1) there was a lack of consent, (2) a protective
sweep was not justified, and (3) the affidavit contained lies. We disagree with defendant’s contention.
“In reviewing the
trial court’s denial of a motion to suppress evidence, we view the record in
the light most favorable to the trial court’s ruling, deferring to those
express or implied findings of fact supported by substantial evidence. [Citations.]
We independently review the trial court’s application of the law to the
facts. [Citation.] [¶]
The threshold issue before us is, ‘“whether the challenged action by the
officer ‘has infringed an interest of the defendant which the
protect.’ [Citation.] . . .†[Citations.]’
[Citation.]†(
954, 960.)
Jackson invited
the detectives into her apartment, which waived defendant’s right to privacy in
items the officers observed in plain view.
(People v. Superior Court
(2012) 204 Cal.App.4th 1004, 1015.) When
Detective Williams and Detective Zimmerman entered the apartment, they were
engaged in conversation with Jackson.
Jackson then began moving away from the officers and going “[t]oward the
back of the apartment in the patio area.â€
Detective Williams and Detective Zimmerman “follow[ed] Ms. Jackson to
speak with her.†As the three walked,
they “continue[d] the conversation.â€
“[S]hortly after that . . . Detective Zimmerman saw the
defendant[.]†Defendant was “[l]ying
face down on a bed†in a bedroom. The
bedroom “door was wide-open.†“Detective
Zimmerman motioned to [Detective Williams] with his hand and his head to go
look in the bedroom.â€
Detective Williams
saw defendant and spoke to him.
Detective Williams asked defendant to “step off the bed and come towardâ€
the detective. Defendant was wearing a
silver belt matching the belt worn during the robberies. Detective Williams spoke to defendant in the
living room. It can be inferred from
this evidence that defendant was wearing the belt in plain sight, and
therefore, there was no Fourth Amendment violation in the detectives seeing the
belt. This inference is further
supported by a comment Detective Williams made after “freezing†the
apartment. When speaking to another
detective, Detective Williams said, “I think I have, you know that picture that
you guys had keep [sic] wearing that
chrome belt? Think he was wearing a
silver belt. I think I have that kid in
here with that belt.†This comment
supports an inference that the belt was visible.
Law enforcement
officers may perform a protective sweep “‘in conjunction with an in-home arrest
[or detention] when the searching officer possesses a reasonable belief based
on specific and articulable facts that the area to be swept harbors an
individual posing a danger to those on the arrest scene.’ [Citation.]
‘A “protective sweep†is a quick and limited search of [the] premises,
incident to an arrest [or detention] and conducted to protect the safety of
police officers or others. It is
narrowly confined to a cursory visual inspection of those places in which a
person might be hiding.’
[Citation.]†(
1195, 1205.) Law enforcement officers
must have a reasonable suspicion that the area to be swept harbors a dangerous
person. (Ibid.) The totality of the
circumstances must be analyzed to determine if the officer had a reasonable
basis for his suspicion. (
Upon seeing
defendant, Detective Williams asked if defendant was on felony probation and
defendant responded, “Yes.†It can be
inferred that at that point, defendant was at least temporarily detained. As Detective Williams spoke to defendant in
the living room, Detective Zimmerman performed a protective sweep. The
protective sweep was needed because Q.F. still had not been located and
firearms had been used in the crimes.
Jackson said Q.F. was on the patio, but the detectives did not see
anyone on the patio, which would cause a reasonable person to presume Q.F. was
hiding in the apartment and possibly armed.
Given this situation, the record supports a finding that the detectives
had a reasonable suspicion that the apartment harbored a dangerous person.
While performing
the protective sweep, Detective Zimmerman looked under defendant’s bed and
found cash and a cell phone battery. As
Detective Zimmerman conducted the protective sweep, Q.F. was located outside
the apartment by a third officer. The
protective sweep ended and Detective Williams spoke to Q.F.
Given
that Jackson invited the detectives into her home, and that they were following
her through the apartment when they saw defendant and his belt in plain sight,
it appears a warrant was not needed for the discovery of defendant’s belt
because it was in plain sight. Further,
a warrant was not needed for the discovery of the items under the bed, because
those objects were found via a justified protective sweep. As a result, the trial court did not err by
denying defendant’s motion to suppress.
Defendant contends
the trial court erred by denying the motion because the protective sweep of the
apartment was not justified in that “no one was arrested or detained before the
entry into the home.†In this case,
Jackson invited the detectives into the home, and the protective sweep did not
begin until after the detectives saw defendant wearing the distinctive belt in
plain sight, questioned him about his probation status, and detained him. Accordingly, since the protective sweep did
not begin immediately upon the detectives entering the home, defendant’s
argument is not persuasive.
Next,
we address defendant’s contention that the trial court erred by denying his
motion because the warrant affidavit contained lies. Defendant contends the affidavit contains a
lie because Detective Williams wrote that Wickett’s cellular telephone was
pinged to “the address of ‘2011 Arden Avenue’ in the City of San Bernardino,
and pin-pointed the location to be 2011 Arden Avenue, on the north-west corner
of building ‘B.’†Defendant asserts this
statement was a lie because it gives the appearance that Wickett’s telephone
was pinged directly to Jackson’s apartment, when, in reality, there were four
different apartments where the telephone could have been located.
Defendant’s
argument is not persuasive because in the warrant application, Detective
Williams requested permission to search “2011 Arden Ave., building ‘B’, apartment
#209.†The apartment was described as
being located on the second story of the building. Since the apartment was on the second floor,
and was numbered 209, it can reasonably be inferred that there are other
apartments located in “Building B.â€
Therefore, it does not appear that Detective Williams lied about the
telephone being pinged directly to Jackson’s apartment, because it is clear
from Detective Williams statement that the telephone was pinged only to a
particular section of an apartment building—not to a specific apartment.
c) Ineffective Assistance of Counsel
We
now address defendant’s ineffective assistance of counsel contention. As set forth ante, defendant asserts his trial counsel was ineffective for (1)
not arguing that the protective sweep was illegal, (2) failing to argue the
probable cause statement contained deliberate lies or that Detective Williams
had a reckless disregard for the truth, and (3) not obtaining a ruling
from the trial court on the issue of whether the search warrant was valid.
“The test for
determining whether a criminal defendant received ineffective assistance of
counsel is well-settled. The court must
first determine whether counsel’s representation ‘fell below an objective
standard of reasonableness.’ [Citation.] The court then inquires whether ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’ [Citations.]
‘A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’
[Citations.]†(
216, 234-235.)
Defendant asserts
his trial counsel erred by not arguing that the protective sweep was
illegal. As explained
justified under the circumstances of this case.
As a result, trial counsel did not err by not arguing that the sweep was
illegal, because the sweep was legal.
Next, defendant
asserts his trial counsel was ineffective because he did not argue the probable
cause statement contained deliberate lies or that Detective Williams had a
reckless disregard for the truth. As set
forth ante, it does not appear that
the affidavit contains lies. Thus, trial
counsel acted reasonably by not arguing that the affidavit contained a lie.
Third, defendant
contends his trial counsel was ineffective for not obtaining a ruling from the
trial court on the motion to quash the search
warrant. As explained
valid error in the search warrant. Thus,
to the extent trial counsel erred by not reminding the court to issue an
explicit ruling on the motion to quash, there is nothing indicating the result
of the proceeding would have been different if counsel had reminded the trial
court, because an error in the warrant has not been shown.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.
further statutory references will be to the Penal Code unless otherwise
indicated.
record reflects the trial court stopped listening to the audio recording at the
point where “the residence is being frozen.â€
Since the playback of the audio recording was not transcribed during the
hearing, i.e., the court reporter did not transcribe it, it is unclear from the
record exactly when the trial court and/or prosecutor stopped the recording.
