P. v. Thomas

Filed 6/12/07 P. v. Thomas CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Anita H. Dymant, Judge. Reversed.

Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

Appellant Jabbar Thomas challenges his robbery conviction on the ground the trial court erred by denying his motion to suppress. We agree, as the facts known to the arresting officer did not establish probable cause.

BACKGROUND AND PROCEDURAL HISTORY

On September 9, 2005,^[1]Jesus Agustin was robbed of cash, jewelry and his wallet while using an automatic teller machine (ATM). Three days later, Edwin Solorzano was robbed of cash and his wallet while using an ATM. Solorzano identified and Agustin tentatively identified William Waldron from a photographic array. Police arrested Waldron based on a warrant, and also arrested appellant when he approached them to ask why they were arresting Waldron.

At the preliminary hearing, appellant moved to suppress all evidence seized, postarrest statements, and postarrest observations by the police on the ground he was arrested without probable cause. The magistrate denied the motion.

Appellant renewed his suppression motion in the trial court. The court denied the motion. Appellant then pled guilty to first degree robbery and was sentenced to the low term of three years in prison.

DISCUSSION

Appellant contends the trial court erred by denying his motion to suppress because Detective George Leiva did not have probable cause to arrest him.

A peace officer generally may arrest a person without a warrant if the officer has probable cause to believe that the person has committed a felony. (Peoplev.Williams (1989) 48 Cal.3d 1112, 1138.) 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 to be arrested is guilty of a crime. (Peoplev.Price (1991) 1 Cal.4th 324, 410.) It may exist even though room exists for doubt and/or the facts known to the officer would not alone be sufficient to support a conviction. (Hamiltonv.City of San Diego (1990) 217 Cal.App.3d 838, 844.)

Where a motion to suppress was submitted to the superior court on the preliminary hearing transcript, we disregard the superior courts findings and review the determination made by the magistrate who originally ruled on the motion. (Peoplev.Thompson (1990) 221 Cal.App.3d 923, 940.) In determining whether the officers had probable cause to arrest, we are bound by the magistrates findings about the officers knowledge to the extent those findings are supported by substantial evidence. However, whether the officer had probable cause to arrest is a question of law subject to independent review. (In re Justin B. (1999) 69 Cal.App.4th 879, 887.)

Jesus Agustin, the victim in count 2, testified that on September 9 he and his nephew, Felipe Lopez, went to a bank located at Wilshire and Ardmore. Agustin had just withdrawn money from Lopezs account at the banks ATM when two men approached him from behind. The one on his right put a gun against Agustins ribs and told him to insert the ATM card again. The man on his left grabbed Agustins shoulder. They took the money that had already been dispensed, along with Agustins watch, rings and wallet. Agustin identified codefendant Waldron in court as the man with the gun. When shown a photographic array, Agustin picked Waldrons photo and said he looked more likely [sic] the person that was involved in the robbery. The other man wore a hood, and Agustin did not really get a good look at him. He was a Black male, about six feet tall, skinny, and wearing a dark sweater with a hood. Agustin never identified appellant. A third suspect was involved, but Agustin never saw him.

Los Angeles Police Officer David Purcell testified that he responded to the scene of the September 9 robbery. Lopez described the robber without a gun as a Black male, 5 feet 6 inches to 5 feet 8 inches tall, 145 to 155 pounds, wearing a white, hooded sweatshirt.

Solorzano, the victim in count 1, which was alleged only against Waldron, testified that he was at an ATM on Melrose on September 12 to withdraw cash. Two men approached him. The man on his right side pointed a gun at him and told him to withdraw $500.00. He could only withdraw $60.00, and the men took it and his wallet, which contained his Chevron gasoline credit card (Peoples Exhibit 2). Solorzano identified Waldron from a photographic array and in court as the man with the gun.^[2] Solorzano was not able to recognize appellant. He also did not know the age or race of the other suspect and only remembered that he wore a hooded gray sweatshirt, with the hood up. The man with the gun also wore a hood.

Detective George Leiva testified that before arresting Waldron and appellant, he learned they had been arrested and then released, in Long Beach on September 13 for a similar type robbery. Each man was wearing a gray hooded jacket when arrested. Appellant was in possession of a replica handgun that was actually a pellet gun. Leiva viewed a photograph of the gun recovered by the Long Beach Police Department and it strongly resembled the gun in the ATM surveillance photographs from the September 9 robbery of Agustin (Peoples Exhibit 3). He had also viewed a photograph of the sweatshirts recovered by Long Beach Police Department, which resembled the one worn by one of Agustins robbers. Leiva knew the Long Beach Police Department also recovered a Chevron gasoline credit card in the name of Edwin Solorzano from a car stopped a couple of minutes after appellant and Waldron were arrested. Appellant and Waldron had been seen standing outside the car, conversing with a woman who was driving the car and another man riding in the car. The card was partially cut and found on the floor in the area of the drivers seat. At some point, appellant and Waldron were seen inside the car from which the card was recovered.

Leiva was present when Agustin selected Waldrons photograph from an array (Defense Exhibit C). He was also present when Lopez selected Waldrons photograph from an identical array (Defense Exhibit I) and wrote that he was 85 percent sure it was not the robber, but 15 percent sure it may be him. Leiva nonetheless wrote in his postarrest probable cause declarations (Defense Exhibits E & H) that [t]he witness and the victim [] . . .[] both identified Waldron from photographic lineups. Leiva also knew that Agustin, Lopez and Solorzano had been shown an array containing appellants photograph, but none of them had identified him.

Leiva knew a warrant for Waldrons arrest for the Solarzano robbery was outstanding. Leiva and his partner staked out a particular location and arrested Waldron. Appellant casually walked up and asked what was going on, or why they were arresting Will. Leiva arrested appellant, as well.

Leiva cited the following basis for arresting appellant: The general description, the fact that Mr. Thomas was in possession of a replica handgun^[[3]] that strongly resembles a handgun in the surveillance photo, the fact that the other individual was wearing a hooded type jacket which concealed his face, and the fact that Thomas and Waldron were both arrested in the City of Long Beach prior to our arrest, and the fact that two -- the two individuals basically live together. When asked how his knowledge of the Solarzano robbery affected his decision to arrest appellant, Leiva stated, I formed the opinion that the robbery that occurred with Mr. Jesus Agustin was by Mr. Waldron and Mr. Thomas, based on the evidence seized from Long Beach and the surveillance photos.

Leiva admitted the sweatshirts were commonly available and worn, and the replica pellet gun was somewhat common.

Leiva prepared a Crime Alert notice (Defense Exhibit G) regarding the Agustin robbery in which he described the unarmed suspect 2 as a Black male, 5 feet 8 inches tall, 155 pounds, 20 to 25 years old, last seen wearing a white, hooded sweatshirt. Leiva testified appellant was about 5 feet 8 inches tall and weighed 145 to 150 pounds. The arrest report prepared by Leivas partner indicated appellant was 5 feet 10 inches tall.

The magistrate, in pertinent part, explained his rationale for denying the suppression motion as follows: And then when Officer Leiva, in giving him credibility to have this in mind when he is making an arrest for the robberies involving this case, he sees the young man, Mr. Thomas. [] To what extent general descriptions justify an arrest, I think they are of very, very minimum assistance, unless they come in conjunction with other factors such as exist in this case. Because as you pointed out, male Black of a common size will fit maybe millions of people. []  . . .  [] A police officer is specially trained to observe, to remember features, general descriptions. And when he looks at a photograph, he may see things that in a cursory examination made of it yesterday when he was shown Exhibit 3 may not have been all that significant to me. But to Officer Leiva, having seen the photograph of one of the robbers in that surveillance film, knowing what he knew about Mr. Thomas in so far as his relationship with the defendant at the scene of an arrest several -- what? The 13th to the 28, 15 days earlier the day after a robbery in which the fruits of a robbery committed by Mr. Waldron was [sic] found. [] I think he reasonably made an arrest of Mr. Thomas at that time .

The magistrate apparently relied primarily upon Leivas purported recognition of appellant in the ATM photographs taken during the Agustin robbery (Peoples Exhibit 3). A review of the ATM photographs establishes that while Waldron is easily recognized in most of the photographs, the face of the other robber is never clearly seen. The best photograph is the one time-stamped 21:57:20.60, in which it can be determined that the hooded robber has the normal facial components of eyebrows, eyes, a nose, a mouth and a chin. The robbers face is, however, out-of-focus and in shadow. Moreover, Leiva had necessarily seen a photograph of appellant before arresting Waldron, as it was included in a photographic array shown to Agustin, Lopez, and Solorzano. Therefore, he could not have suddenly recognized appellant when appellant approached him to inquire about Waldron. The magistrates comments while explaining his denial of the motion to suppress indicate he made only a cursory examination of Peoples Exhibit 3 when it was introduced the preceding day, and when he asked to see the exhibit before ruling on the motion, the prosecutor revealed that Leiva had taken it with him. The magistrate declined to wait for the exhibits return before ruling upon the motion to suppress. For all of these reasons, especially the poor quality of the image of the hooded robber in the ATM photographs, the magistrates finding that Leiva recognized appellant from the ATM photographs is not supported by substantial evidence.

The other bases the magistrate cited for finding probable cause were that appellant fit the description of the second robber, appellant and Waldron were found together on September 13 and September 28, and Solorzanos credit card was found when appellant and Waldron were arrested in Long Beach on September 13. Appellant, however, was not in actual or exclusive possession of Solorzanos credit card. It was found near the female drivers feet, and appellant and Waldron were outside of the car when it was found, although a third man was present in the car. Nothing in the record showed that appellant owned or had any possessory interest in the car, and no other evidence linked appellant to the Solorzano robbery. Appellant more or less fit Leivas description of the second robber in the Agustin robbery, although he was apparently two inches taller than the description, and the description included no distinctive characteristic that would narrow its application to a relatively few individuals. Appellants presence with Waldron on two occasions, more than two weeks apart, and a minimum of one to four days after the robberies in which Waldron had been identified, established, at most, that they were friends or companions. This was quite a different situation than finding them together a few minutes after a robbery. Moreover, the record does not show that appellant was in Waldrons company when Leiva arrested Waldron. He was apparently nearby, as he subsequently appeared and approached Leiva. However, Leiva testified that the two men lived together. This fact perhaps strengthens the known bond between the two, but weakens any suspicious inference that could be drawn from appellants presence at the arrest site on September 28.

Although not expressly cited by the magistrate, Leiva cited as an additional factor supporting appellants arrest the resemblance between the gun found in appellants possession in Long Beach and the one visible in several of the ATM photographs. However, Leiva admitted that the gun found in Long Beach strongly resembled a .45-caliber handgun. When Leiva arrested appellant, he did not know whether the gun depicted in the ATM photograph was a real handgun or a pellet gun. Indeed, Leivas Crime Alert notice described the gun used in the Agustin robbery as a handgun that was stainless steel, semi-automatic. Thus, the collection of stainless steel, semiautomatic .45-caliber handguns that the gun in the ATM photograph resembled was not narrowed, as far as Leiva knew, to pellet guns that resembled .45-caliber, stainless steel, semiautomatic handguns. The ATM photographs reveal nothing uniquely identifying about the gun used in the Agustin robbery. Moreover, Agustin and Solorzano identified Waldron as the robber with the gun, and the ATM photographs show the gun in Waldrons right hand. Nothing in the record established that appellant, not Waldron, owned the gun found in appellants possession in Long Beach. Nor was there any evidence that appellant had used that gun or any gun in a robbery. Leiva testified that he had been informed by Long Beach police that appellant, Waldron, the driver, and the third man were arrested for a similar type robbery, but he did not indicate the pellet gun was used in that purported robbery.^[4] While appellants possession of a similar looking gun was a proper factor for Leiva to consider, the common nature of handguns, the absence of any unique identifying characteristics visible on the gun in the ATM photographs, and the fact that appellant was not alleged to have used a gun during the Agustin robbery weakened the inference of guilt that could be drawn from such possession.

Leiva also apparently relied upon the fact that appellant was wearing a hooded type jacket when arrested in Long Beach, and the second robber in the Agustin robbery wore a hooded sweatshirt. Leiva testified that in Long Beach appellant had a hooded jacket[] of a grayish color, whereas the general description of the second robber Leiva put into his Crime Alert notice reported a white hooded sweatshirt. A light gray could certainly be mistaken for white, and a hooded sweatshirt with a front zipper might well be described as a jacket. Leiva testified that he saw a photograph of the jacket from Long Beach. He thought it resembled the jacket depicted in the ATM photographs. Given the admittedly common nature of white or light grey hooded sweatshirts, however, any inference of guilt drawn from appellants possession of such an article of clothing was necessarily weak.

Finally, although not cited by Leiva or the magistrate, appellant did not behave in a suspicious fashion when the police arrived to arrest Waldron on September 28. He did not display a consciousness of guilt by hiding, leaving the area, or pretending not to know Waldron. Indeed, his behavior may be characterized as the converse of behavior indicating a consciousness of guilt, as he voluntarily sought out the police and freely indicated his familiarity with and concern for Waldron.

The combined effect of the presence of Solorzanos credit card in the car in Long Beach, appellants presence with Waldron on September 13 and September 28, appellants match with the general description of the hooded robber, and the similarity in appearance of the sweatshirt and gun in photographs did not rise to the level of facts that would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that appellant was guilty of a crime. These factors instead simply established a possibility that appellant participated in the Agustin or Solorzano robbery with his friend or associate Waldron. This mere possibility was insufficient to justify appellants arrest without additional information. Although everything Leiva knew placed appellant within the set of possible suspects, nothing Leiva knew focused a strong suspicion upon appellant. The prosecution did not sustain its burden of establishing probable cause for arrest. Accordingly, the magistrate erred by denying appellants motion to suppress.

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

FLIER, J.

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^[1] Unless otherwise noted, all dates in this opinion refer to 2005.

^[2] Waldrons picture was in position four on Peoples Exhibit 1.

^[3] Nothing in the record indicates Leiva observed appellant with such a gun or that he was found in possession of such a gun when Leiva arrested him.

^[4] In fact, the police report from Long Beach indicates the police arrested appellant and Waldron after watching them walk through a bank parking lot. A witness had called the police to report that a car backed into a stall in an apartment parking lot, and two men got out and made hand motions into their waistbands while crouched behind a wall. No one reported that the men were involved in a robbery, but other officers said the man who remained in the car, Powell, fit the description of a suspect in a prior robbery. Appellant, Waldron, and Powell were arrested for robbery, attempted kidnapping, and conspiracy. According to defense counsel, appellant and Waldron, at least, were released and never charged in relation to the Long Beach incidents.