Opinion
A157745
07-20-2021
THE PEOPLE, Plaintiff and Respondent, v. ISAIAH RAMON BOLDEN, Defendant and Appellant.
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 18016218
Jackson, J.
After the trial court denied his motion to suppress and his motion to set aside the information based on Fourth Amendment violations, defendant pleaded guilty to felony convicted person carrying a loaded firearm (Pen. Code, § 25850, subd. (a)) and admitted a prior felony conviction (id., § 667.5, subd. (b)). Defendant seeks reversal of his conviction based on his Fourth Amendment challenge. Alternatively, he asserts the trial court erred by imposing fees and fines without first determining his ability to pay, and he asks for a remand to determine his ability to pay. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 1:20 p.m. on October 17, 2018, defendant, who was standing in front of the Joseph Lee Recreation Center in San Francisco, was approached by four plainclothes police officers in an unmarked car. The officers approached the defendant based on information they received that a person matching the defendant's description at that location was carrying a gun. The defendant ran. The officers chased, tackled, and handcuffed him, then searched him and found a loaded firearm between defendant's ankle and clothing.
On October 19, 2018, the San Francisco District Attorney filed a complaint charging defendant with felony possession of a firearm with prior convictions (Pen. Code, § 29900, subd. (a)(1); count I); felony possession of a firearm by a felon (id., § 29800, subd. (a)(1); count II); felony convicted person carrying a loaded firearm (id., § 25850, subd. (a); count III); felony concealed firearm on a convicted person (id., § 25400, subd. (a)(2); count IV); and misdemeanor resisting arrest (id., § 148, subd. (a)(1); count V). The complaint also alleged one strike prior based on a 2011 conviction for second degree robbery (id., §§ 667, subds. (b)-(i), 1170.12) and two prison priors for the 2011 robbery conviction and a 2016 conviction for evading an officer with willful disregard (id., § 667.5, subd. (b)).
Defendant filed a motion pursuant to Penal Code section 1538.5 to suppress the gun. Defendant's written motion asserted that he was detained and searched by the police based on unspecified information from an unnamed informant. He argued that, pursuant to People v. Madden (1970) 2 Cal.3d 1017 (Madden) and People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey), the People must show that the information received by an officer through official channels had a legitimate source and that the People must produce either the original informant as the source of the information relied upon or the officer who received the information from the informant.
Defendant's motion to suppress was heard jointly with his preliminary hearing. Officer Salar Naderi of the San Francisco Police Department was the sole witness. Officer Naderi testified that on October 17, 2018, he was working in a plainclothes capacity when he received information about a man near Third Street and Oakdale Street with a firearm. The person was described as a Black male in his 20's with dreadlocks wearing a blue jacket and standing next to a gold Nissan Maxima in front of the Joseph Lee Recreation Center. Officer Naderi, two other officers and a sergeant, all in plainclothes and in an unmarked vehicle, reported to the Joseph Lee Recreation Center, and a man matching the description was standing next to a gold Nissan Maxima. The officers and the sergeant exited their unmarked vehicle, wearing their badges around their necks, and walked toward defendant to detain him. They announced they were the police, and defendant “looked at [them] and then took off running away....” At some point, the officers told defendant to stop. The officers caught up to defendant, tackled him and placed him in handcuffs. Officer Naderi conducted a patdown search of defendant and found a loaded firearm tucked tightly inside his left pants leg near his ankle. The officers cut defendant's pants to safely retrieve the firearm.
The defense counsel objected to the description conveyed to Officer Naderi as hearsay. The trial court admitted the testimony for the nonhearsay purpose of showing the officer's subsequent actions.
Officer Naderi identified the defendant at the hearing.
Officer Naderi did not know defendant prior to his arrest. He did not ever speak to the informant who provided the initial information that defendant had a firearm, and he did not know the informant's identity. Officer Naderi acknowledged that he did not personally have any information about the reliability of the informant. Based on Officer Naderi's lack of direct contact with the informant, defense counsel moved to strike any testimony about the information received from the informant. Defense counsel argued the People had not shown the reliability of the informant. The People reiterated that the testimony was admitted to explain the officers' actions and not for the truth. The magistrate denied defense counsel's motion to strike the testimony.
Defense counsel argued the police had no “jurisdiction” to detain and search defendant based on information from an unidentified informant where there was no evidence of the reliability of the information or how the information was relayed to the arresting officers. He further argued that defendant was entitled to leave when four plainclothes officers approached him. The magistrate denied the motion to suppress and held defendant to answer on all charges.
On December 7, 2018, the district attorney filed an information charging defendant with the five counts previously charged in the complaint. Defendant filed a motion to set aside the information, arguing that his motion to suppress was erroneously denied.
At the hearing on the motion to set aside the information, the People admitted the police did not have a reasonable suspicion to detain defendant when they first arrived at the recreation center. However, they argued the detention was justified once the defendant, who matched the description provided by the informant, began to run after the officers announced they were the police. The trial court commented that “this is a close call” and then denied the motion, stating: “The magistrate had an opportunity to see the police officer testify because the question is really are the officers making up this information.... [¶] [The] magistrate... observed officers testify in. Terms of 995 motion, deference is to be given to upholding the magistrate's finding.” (Sic.)
On January 29, 2019, defendant pleaded guilty to count III, convicted person carrying a loaded firearm (Pen. Code, § 25850, subd. (a)), and he admitted a prior felony conviction for evading an officer. The other counts and allegations were dismissed. Defendant was sentenced to 16 months in prison, and due to actual and custody credits, the trial court found the sentence served and ordered defendant to report to the probation department to be placed on either parole or postrelease supervision for up to four years. Defendant was also ordered to pay various fines and assessments.
DISCUSSION
I. Denial of Motion to Suppress Evidence
Pursuant to Penal Code section 1538.5, subdivision (m), “[a] defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence.” Here, defendant first moved to suppress evidence at the preliminary hearing pursuant to Penal Code section 1538.5, and then he raised the issue before a separate judge in his Penal Code section 995 motion to set aside the information. Thus, he has preserved the issue for review. (People v. Torres (2010) 188 Cal.App.4th 775, 783 [a defendant preserves a search and seizure challenge by raising the issue either in a renewed motion to suppress (Pen. Code, § 1538.5, subd. (i)) or in a motion to set aside the information for lack of probable cause (Pen. Code, § 995)].)
The People assert that because the defendant did not renew his motion to suppress after it was denied at the preliminary hearing, and instead filed a Penal Code section 995 motion challenging his search and seizure, he may not “simultaneously” challenge the denials of the motion to suppress and the motion to set aside the information. We need not decide this issue because, as both parties concede, here the same analysis applies whether we review the denial of the motion to suppress or the denial of the Penal Code section 995 motion. In both instances, we “determin[e] de novo whether the factual record supports the magistrate's conclusion that the challenged search met the constitutional standard of reasonableness [citations].” (People v. Romeo (2015) 240 Cal.App.4th 931, 942.)
A. Standard of Review
“When a suppression motion is made before a magistrate in conjunction with a preliminary hearing, as in this case, the magistrate tries the facts, resolving credibility issues and conflicts in the evidence, weighing the evidence, and drawing appropriate inferences. [Citations.] If the magistrate denies the motion and holds the defendant to answer, the defendant must, as a prerequisite to appellate review, renew his challenge before the trial court by motion to dismiss under [Penal Code] section 995 or in a special hearing. [Citations.] At that stage, the evidence is generally limited to the transcript of the preliminary hearing, testimony by witnesses who testified at the preliminary hearing (who may be recalled by the prosecution), and evidence that could not reasonably have been presented at the preliminary hearing. [Citation.] The factual findings of the magistrate are binding on the court, except as affected by any additional evidence presented at the special hearing. [Citation.]
“[T]he appellate court, like the superior court, is bound by the magistrate's factual findings so long as they are supported by substantial evidence.... [A] two-step standard of review applies. In the first step of our review, ‘we in effect disregard the ruling of the superior court and directly review the determination of the magistrate.' [Citation.] At this stage, we consider the record in the light most favorable to the People since ‘all factual conflicts must be resolved in the manner most favorable to the [superior] court's disposition on the [suppression] motion.' [Citation.]
“Accepting as established all implied or express factual findings by the magistrate as are supported by substantial evidence, we then proceed to measure those findings against Fourth Amendment standards articulated by the United States Supreme Court. [Citations.] At this stage, we independently apply the law to the factual findings [citations], determining de novo whether the factual record supports the magistrate's conclusion that the challenged search met the constitutional standard of reasonableness [citations].” (People v. Romeo, supra, 240 Cal.App.4th at pp. 941-942.)
B. Harvey-Madden Issue
Defendant argues the police lacked legal justification to stop him because the People failed to establish the basis for the information provided by the informant, which violates the Harvey-Madden rule.
The Harvey-Madden rule derives from People v. Harvey (1958) 156 Cal.App.2d 516 and People v. Madden (1970) 2 Cal.3d 1017 and is a “set of state law evidentiary rules governing the manner in which the prosecution may establish grounds for a challenged stop or search.” (People v. Romeo, supra, 240 Cal.App.4th at p. 943.) “In its most conventional application, the Harvey-Madden rule is, in effect, nothing more than the hearsay rule adapted specifically to motions to suppress. Obviously, when one officer relies on information provided by someone else to justify a stop or search, a hearsay problem arises.” (Id. at p. 944.)
“It is well settled under California law that an officer may arrest an individual on the basis of information and probable cause supplied by another officer. [Citation.] ‘However, ... when the first officer passes off information through “official channels” that leads to arrest, the officer must also show basis for his probable cause. In other words, the so-called “Harvey-Madden” rule requires the basis for the first officer's probable cause must be ‘something other than the imagination of an officer who does not become a witness.' ” (People v. Gomez (2004) 117 Cal.App.4th 531, 540, italics added.) Although “[t]he best way of negating ‘do it yourself probable cause' is to have the officer who received the information from outside the police department testify, ” in certain instances the People may be able to prove the veracity of the information relayed to the arresting officer through corroborating evidence. (People v. Orozco (1981) 114 Cal.App.3d 435, 444-445.)
Defendant argues that the evidence produced at the hearing did not establish that the information relayed to the arresting officer was “something other than the imagination of an officer who [did] not become a witness.” (People v. Gomez, supra, 117 Cal.App.4th at p.540.) We agree that the People should have had the officer who received the information from outside the police department testify at the hearing. (People v. Orozco, supra, 114 Cal.App.3d at p. 444 [“The court should have insisted that the people produce the dispatcher or other competent evidence if the dispatcher was not available”]; People v. Brown (2015) 61 Cal.4th 968, 983 [People can meet the Harvey-Madden requirement by calling the police dispatcher or by introducing evidence of the 911 call].) The People also should have elicited testimony about how the information was relayed from the informant to the first officer who received the information and about how the information was relayed to the arresting officer. (See People v. Orozco, supra, 114 Cal.App.3d at p. 440 [arresting officer testified about information received from dispatcher and timing of police response to dispatch]; In re Eskiel S. (1993) 15 Cal.App.4th 1638, 1643 [“Justifying an arrest or detention based on information received through ‘official channels' requires the prosecution to trace the information received by the arresting officer back to its source and prove that the originating or transmitting officer had the requisite probable cause or reasonable suspicion to justify the arrest or detention”].) Defendant's motion to suppress specifically raised the Harvey-Madden issue, yet the People failed to present either the informant or the officer who purportedly received the information from the informant; nor did they present evidence as to how the information was relayed to the arresting officer. Instead, only the arresting officer testified at the motion to suppress hearing. He testified that while on duty he received information provided by an informant describing the defendant, his location, and that he had a firearm. The arresting officer acknowledged that he did not speak with the informant and that he did not know the informant.
Here, the People did not strictly comply with the Harvey-Madden rule, and we agree with the trial court that this is a close case. However, we do not find a Harvey-Madden violation for two reasons. First, the magistrate credited the arresting officer's testimony that while he was on duty he received the information describing the defendant, and we do not disturb credibility findings on appeal. (People v. Romeo, supra, 240 Cal.App.4th at pp.941, 948.) The reasonable inference flowing from the arresting officer's testimony is that the information was provided to him through official channels. Second, when the arresting officer arrived at the recreation center, he saw defendant, who matched the fairly detailed description provided by the informant, which included the defendant's gender, race, age, hair style and clothing, and the make, model and color of the car he was standing near. We find that the arresting officer's testimony about the information he received, coupled with his observations at the scene matching the specific details provided by the informant, were sufficient circumstantial evidence to prove that the information transmitted to the arresting officer came from outside the police department. (See People v. Johnson (1987) 189 Cal.App.3d 1315, 1317-1318, 1320 [detention justified despite lack of testimony from dispatcher where specific descriptive information contained in a radio broadcast was corroborated by the officers' observations at the scene]; In re Richard G. (2009) 173 Cal.App.4th 1252, 1259 [same].)
C. Totality of Circumstances Supports Detention and Arrest
“A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) Defendant argues that under the authority of Florida v. J. L. (2000) 529 U.S. 266 and People v. Jordan (2004) 121 Cal.App.4th 544 (Jordan), an anonymous tip providing the location and general description of a person carrying a gun is not enough to provide reasonable suspicion to conduct a search. In J. L., the United States Supreme Court invalidated a detention based solely on an anonymous telephone report that a young Black man wearing a plaid shirt and standing at a bus stop had a gun. (J. L., supra, at p. 273.) Unlike here, the defendant in J. L. did not run when the police approached. (J. L., supra, at p. 268.)
In Jordan, the Fifth District Court of Appeal followed J. L. and found that an anonymous 911 caller's description of a man in a park with a gun in his right jacket pocket was insufficient to create a reasonable suspicion that the defendant was engaged in criminal activity. (Jordan, supra, 121 Cal.App.4th at pp. 548-549, 563-564.) The 911 caller described the man as a Black male in his 30's wearing a white shirt, black jacket, tan pants and red boots and gave his location. (Id. at pp. 548-549.) The court noted, “Where police officers follow up an anonymous tip and observe suspicious behavior, the totality of the circumstances may generate a reasonable suspicion that justifies a Terry stop and frisk.” (Id. at p. 558, first italics added.) But the officers did not observe any suspicious behavior before frisking Jordan. (Id. at p. 559.) Nor did the record provide a basis to find that the anonymous tip, which only provided information readily observable to the public, was reliable. (Id. at pp. 559-562, 564.) The tip did not include “details about how and when the informant learned the information.” (Id. at p. 560.) Thus, the court concluded that the totality of the circumstances at the time of the stop and frisk did not create a reasonable suspicion of criminal activity. (Id. at p. 564.)
Here, the description of the defendant provided by the informant was similar in the amount of detail to the description provided by the 911 caller in Jordan and more detailed than that provided in J. L. Also, as in those cases, nothing in the record here establishes how the tipster knew about the weapon. However, in this case, unlike in J. L. and Jordan, as soon as the officers exited their car and announced they were police, the defendant “looked at [them] and then took off running away....”
Defendant argues that because the officers were in plainclothes and in an unmarked car, he “likely perceived [them] as aggressors” and his flight was provoked. However, the arresting officer testified that he and the other officers had their badges around their necks and that they announced themselves as police as they approached defendant. Given this uncontroverted testimony, we must consider defendant's flight from the police as part of our analysis.
In People v. Souza, supra, 9 Cal.4th 224, our Supreme Court rejected the contention that flight alone is sufficient to justify a detention. (Id. at pp. 235-237.) However, it also stated that although “a person's flight from approaching police officers may stem from an innocent desire to avoid police contact, flight from police is a proper consideration-and indeed can be a key factor-in determining whether... police have sufficient cause to detain.” (Id. at p. 235.) The United States Supreme Court similarly concluded, in Illinois v. Wardlow (2000) 528 U.S. 119, 124, “Headlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” In Wardlow, the Supreme Court held that Wardlow's unprovoked flight from law enforcement, coupled with his presence in an area known for drug trafficking, justified the officers' suspicion “that Wardlow was involved in criminal activity, and, therefore, in investigating further.” (Id. at pp. 124-125.)
Here, there was no testimony that defendant was in a high-crime area. However, contrary to defendant's argument, this is not a case in which the police relied on defendant's flight alone to support their suspicion of criminal activity. The evidence was that the police received a tip from an informant that a man with a gun was standing next to a car in front of a recreation center. Upon arrival at the recreation center, the police saw defendant, who matched the description provided, and as they approached him while announcing themselves as police, the defendant looked at them and “took off running....” We find that based on the totality of the circumstances, which is supported by substantial evidence, the trial court did not err in denying defendant's motion to suppress.
We recognize that a person approached by law enforcement may justifiably attempt to avoid engagement. As noted in Justice Stevens's dissenting opinion in California v. Hodari D. (1991) 499 U.S. 621, it is a mistake to “assume[] that innocent residents have no reason to fear the sudden approach of strangers.... [T]his ivory-towered analysis of the real world... fails to describe the experience of many residents, particularly if they are members of a minority. [Citation.] It has long been ‘a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that “the wicked flee when no man pursueth, but the righteous are as bold as a lion.”' [Citation.]” (California v. Hodari D., supra, 499 U.S. at p. 630, fn. 4, dis. opn. of Stevens, J.)
II. Defendant forfeited his argument that he was entitled to an ability to pay hearing.
At defendant's June 17, 2019 sentencing hearing, the trial court imposed the following fines and assessments: a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)); a $300 parole revocation restitution fine (id., § 1202.45), to be stayed pending successful completion of parole; a $40 court operations assessment (id., § 1465.8); and a $30 immediate criminal needs assessment (Gov. Code, § 70373). Defendant argues for the first time on appeal that the trial court violated his due process rights by imposing the fines and assessments without first determining whether defendant had the ability to pay them and that remand is required under People v. Dueñas (2019) 30 Cal.App.5th 1157.
Courts have strongly criticized the substantive holding in Dueñas. (See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted Nov. 26, 2019, S258946.) We need not offer our opinion regarding the Dueñas holding because we conclude that defendant forfeited this issue.
Defendant concedes that he did not raise the ability to pay at the time of his sentencing, which was five months after the Dueñas decision was published. A timely objection below was required to preserve this claim. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen) [concluding that the defendant forfeited challenge where his trial counsel failed to object to assessments or restitution fine at sentencing]; People v. Trujillo (2015) 60 Cal.4th 850, 859 [explaining that constitutional nature of defendant's claim regarding his ability to pay did not justify a deviation from the forfeiture rule].) Here, not only did defendant fail to raise this issue below but also the record establishes that he expressly agreed to payment of fines and assessments as part of his plea deal. When defendant entered his guilty plea on January 29, 2019, his defense counsel informed the court that defendant had been informed during plea negotiations of the district attorney's recommended sentence, which would include “fines, fees, assessments, and administrative costs not to exceed $5,000.” Defendant confirmed on the record the truth of the statements his attorney made to the court. We conclude defendant forfeited the claim that he was entitled to an ability to pay hearing prior to the trial court's imposition of the fines and assessments.
Dueñas was published on January 8, 2019.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Petrou, Acting P. J., Wiseman, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.