Summary
In People v. Bowen (2020) 52 Cal.App.5th 130, 137, the court held that an emergency justified pinging a cell phone, without prior judicial authorization, of a suspect who had "'brutally stabbed'" the victim near a preschool and a shopping center, and who was "'still possibly armed.'"
Summary of this case from People v. WallravinOpinion
A155630
07-15-2020
The PEOPLE, Plaintiff and Respondent, v. Quentin BOWEN, Defendant and Appellant.
Stephen Greenberg, Nevada City, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin and Ann P. Wathen, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II through V of the discussion.
Stephen Greenberg, Nevada City, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin and Ann P. Wathen, Deputy Attorneys General, for Plaintiff and Respondent.
Jackson, J.
Defendant Quentin Bowen appeals from a judgment after a jury trial finding him guilty of one count of attempted murder committed willfully, deliberately and with premeditation, with a great bodily injury enhancement and a personal knife use enhancement, and one count of assault with a deadly weapon, with a great bodily injury enhancement. Defendant complains of improper admission of certain evidence, prosecutorial misconduct during closing argument, and insufficient evidence of premeditation and deliberation, and that his sentence for attempted murder is unauthorized. We affirm.
BACKGROUND
On July 19, 2017, the Sonoma County District Attorney filed an information charging defendant with attempted murder ( Pen. Code, §§ 664, 187, subd. (a) ; count one) and assault with a deadly weapon (§ 245, subd. (a); count two). With respect to count one, the information alleged an enhancement of personal use of a deadly and dangerous weapon, to wit, a knife (§ 12022, subd. (b)(1)), and that defendant committed the attempted murder willfully, deliberately and with premeditation. With respect to both counts, the information alleged a great bodily injury enhancement (§ 12022.7, subd. (a)). On March 27, 2018, a jury found defendant guilty as charged and the enhancements to be true. The defendant was sentenced to prison on count one as follows: seven years to life for attempted murder plus a determinate term of three years for the great bodily injury enhancement and one year for the use of a deadly and dangerous weapon enhancement. On count two the defendant was sentenced to four years plus three years for the great bodily injury enhancement. The time imposed for count two was stayed under section 654. Defendant's overall prison sentence was seven years to life consecutive to a determinate term of four years.
All further references are to the Penal Code unless stated otherwise.
I. Prosecution's Case
In July 2016, defendant placed an online advertisement looking for boarding for his dog, Dash, offering to pay $100 per week. Dennis N., a 62-year-old man, initially agreed to care for Dash for two weeks but later agreed to keep the dog longer at defendant's request. Although Dennis N. took care of Dash for five months, defendant never paid him.
On November 26, 2016, defendant told Dennis N. he had found a place to live and asked Dennis N. to return Dash to him. Dennis N. asked for a few more days with Dash, and defendant agreed. On December 3, 2016, Dennis N. texted defendant: "There is the little matter of compensation/reimbursement for the excellent care that Dash has received. I am not a mathematician but 20 weeks (5 months)@$100 per week = a lot. I'm sure you will do what's right." Dennis N. thought defendant should "man up and take care of his responsibilities." Defendant responded that Dennis N. had agreed to "do it pro bono." After looking up the meaning of "pro bono," Dennis N. texted defendant back: "Do you understand how Karma works." A few days later, defendant came to Dennis N.’s home with three other people and took Dash. The defendant still did not pay Dennis N.
Dennis N. texted defendant a few weeks later asking him what Dash wanted for Christmas. Defendant responded: "He'd like a friend for him to play with at your place." Dennis N. texted back: "He had a best friend to play with at my place until you took him away." Defendant responded: "Ok man, I've been patient with you. We're done. You will never see my Dog again.... He needs to go out and meet people EVERY single day. He needs to RUN. He also needs the person who raised him. You are none of those things. Get your own dog, or kill yourself. I don't care either way." Dennis N. thought it was "unbelievable" that defendant would treat him that way after he did him a favor. Dennis N. texted the defendant back and told him he still owed him $2,000. Defendant responded by accusing Dennis N. of taking "bad care" of Dash by overfeeding him, underexercising him, and not grooming him. Defendant further texted that Dennis N. had agreed to "do it for free," "[o]therwise, you lunatic, I would not have let you." Dennis N. responded that "taking advantage of a disabled senior citizen and swindling them is a crime." He texted that defendant had "12 hours to apologize ... and come up with a plan to make this right." Defendant stopped responding to Dennis N., and Dennis N. dropped the matter.
In March 2017, Dennis N. responded to a new online advertisement placed by defendant regarding Dash. Although Dennis N. stated he thought Dash looked sad, he did not ask to take Dash back. Then, one night in March, defendant came to Dennis N.’s mobile home and begged him to take Dash. Dennis N. agreed.
On March 30, 2017, defendant texted Dennis N. that he planned to visit Dash the following day and wanted to put a new tag on him. Defendant went to Dennis N.’s home around noon the next day and stayed for about three hours. During the visit, defendant took off his jacket. Dennis N. observed defendant was wearing a black T-shirt underneath. Defendant groomed Dash, put the new tag on him, and filled out paperwork for Dash to attend an activity center. Dennis N. noticed defendant was wearing a knife clip on his front pocket, but he did not see the knife. At first, Dennis N. did not think too much about it. Their conversation over the three hours was pleasant, and there was no discussion of the money defendant owed Dennis N.
At one point, Dennis N. reached into his mobile home to get wisteria clippings he wanted defendant to smell. When Dennis N. saw the wisteria was not where he thought, he backed out of the mobile home. Suddenly, Dennis N. was hit hard on the back of his head. He initially thought something had fallen from the roof. As he turned around, defendant stabbed him in the neck two or three times. Dennis N. grabbed defendant's left wrist; defendant was holding the knife in his left hand. Defendant then clubbed Dennis N. on the side of his jaw with a rock. Defendant dropped the rock and switched the knife to his right hand and started stabbing Dennis N. in the neck again. When Dennis N. grabbed defendant's stabbing hand, defendant again switched the knife to his opposite hand. Defendant stabbed Dennis N. twice in the chest and once in the shoulder. Dennis N. asked defendant why he was doing this. Defendant did not respond.
Dennis N. eventually placed defendant into a half nelson while gripping the wrist of the hand defendant was using to hold the knife. They tumbled inside the doorway of Dennis N.’s mobile home. Dennis N. had a glimpse of the knife that the defendant used and described it as a three-inch pocket knife that was either silver or possibly red and with holes on the handle.
Dennis N. continued to hold defendant in the half nelson position for several minutes while bleeding from his neck. He told defendant to drop the knife, but defendant refused. He said he was bleeding out and needed medical attention. Defendant said he would help if Dennis N. would let him go. Dennis N. worried defendant would "finish the job" because defendant refused to drop the knife. Ultimately, Dennis N. pushed defendant further into the mobile home and ran down his driveway toward a nearby preschool, yelling for help. Dash followed Dennis N. Although Dennis N. was afraid defendant would pursue him and slit his throat, he looked back and saw defendant walking away with defendant's bicycle.
Sarah R. and Lisa C. were outside their children's preschool when they saw Dennis N., who asked them to call 911. They saw another man walking away with a bicycle through the field toward the trees. Dennis N. held pressure on his neck and returned to his mobile home to wait for the police and paramedics. Officer Adams responded to the scene, and Dennis N. provided the police with the defendant's cell phone number. Dennis N. was taken to the hospital, where he was treated for eight stab wounds. Justin F., a Sonoma County animal control officer, was called to the scene to impound Dash. Officer Adams had police dispatch contact defendant's mobile phone service provider to determine the defendant's possible location. Shortly before 6:00 p.m., police dispatch provided Officer Adams with a possible location of the defendant in the area of the Santa Rosa Creek Trail. Officers searched the area, and at 7:18 p.m., they found defendant walking on the trail wearing a backpack, a jacket, and no shirt. Defendant was arrested; his cell phone, backpack, and several knives were seized. Defendant had blood on his right ear, and DNA tests confirmed the blood was consistent with both defendant's and Dennis N.’s.
II. Defense Case
Defendant testified that he visited Dennis N. on March 31, 2017, to see Dash and put a tag on him, and he gave Dennis N. money for Dash's food. Dennis N. began acting in a menacing manner after a few hours, and defendant texted his friend Krysta: "Hey, I am at sketchy guys house behind raleys on Fulton. The trailor RIGHT behind the store. [¶] *If I disappear, it was this guy. [¶] His name is Dennis." (Sic. ) When Dennis N. began to act normally again, defendant agreed to follow him into his mobile home. As they walked into the hallway, Dennis N. suddenly turned around and tried to stab defendant with a large knife. Defendant fell backward onto a pile of items, and Dennis N. again tried to stab him. Defendant grabbed Dennis N.’s hand and maneuvered the knife out of his hand. Dennis N. held defendant down with one hand and hit him in the head with his other hand. Dennis N. was bigger than defendant and defendant could not push him away.
Defendant testified he stabbed Dennis N. because he was afraid for his life. Dennis N. hit defendant on his head and threatened to shoot him. Defendant continued to stab Dennis N. When Dennis N. stopped attacking him, defendant dropped the knife and ran outside. He grabbed his bike and ran through the field. He rode away on his bike until he got a flat tire. He left his bike and started running. He hid in a ditch because he was afraid Dennis N. might come after him.
While he was in the ditch, defendant received a call from Justin F., the animal control officer. Although defendant did not remember what he said to Justin F., he testified he did not ask him for help. Further, he did not call the police or a friend because he was not thinking clearly.
When it became dark, defendant began walking along the creek trail. He testified he was relieved when he saw the police. He admitted to the police that he had four knives on him but denied he had used any of them during the incident. One knife was a credit card knife, or novelty knife. The second knife was a folding knife, which he used to cut food. The third knife was a red folding knife, which was used to cut insulation at his job. The fourth knife was a multitool knife with pliers and screwdriver features. Defendant denied he attacked Dennis N. from behind with a rock or that he intended to kill him.
III. Rebuttal Evidence
At 4:50 p.m. on March 31, 2017, Justin F. called defendant to tell him he had Dash and asked defendant if he wanted to meet to pick up the dog. Defendant calmly responded that he would call him back, and about 5 to 10 minutes later defendant left Justin F. a voicemail message saying he would meet him at a grocery store in Rohnert Park in about 25 minutes, after an interview ended. Thirty minutes later, defendant texted Justin F. saying his interview had lasted longer than expected and that he did not have a place for Dash. Justin F. texted back that he would impound Dash at the Sonoma County Animal Services. The defendant responded by text and thanked him. Defendant did not ever tell Justin F. that he had been attacked that afternoon.
DISCUSSION
I. Cell Phone Ping Did Not Violate Fourth Amendment
Defendant argues the knives should have been excluded because they were the product of a warrantless search in which the police requested that defendant's mobile service provider "ping" his phone and provide location data.
Defendant filed a motion to suppress the evidence seized from his backpack on the grounds that the police failed to obtain a warrant before having defendant's service provider ping his cell phone to locate him. The People argued the warrantless cell phone ping was justified by exigent circumstances and the officers’ good faith reliance on section 1546.1. At the motion to suppress hearing, Officer Adams testified he was dispatched at 3:37 p.m. to a stabbing incident. He initially spoke with two witnesses at a preschool behind a shopping center who told him an older man who was bleeding from his neck said he had been stabbed. They also told Officer Adams they saw another man walking away through a nearby field. Officer Adams then spoke with Officer Cadaret at the scene of the stabbing, approximately 200 feet from the preschool, and he learned the victim had been repeatedly stabbed in the neck in an unprovoked attack. The victim told the officers that the suspect's dog had a tag with the suspect's cell phone number.
On appeal, defendant contests the admission of the knives only, and not any other items seized by the police.
Section 1546.1, subdivision (c)(6) states: "A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows: [¶] ... [¶] If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information."
Subdivision (h) states: "If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the government entity shall, within three court days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency ...."
At 4:19 p.m., on the way to the hospital, Officer Adams called police dispatch and asked if the dispatcher could obtain a ping from the suspect's cell phone. Officer Adams explained "it was imperative" that police find the suspect because "[t]he suspect had just been involved in a very violent crime. The victim was brutally stabbed multiple times, seemingly unprovoked, from the information we had. This took place literally less than 200 feet away from a preschool that was—my witnesses were there to pick up their kids, so the preschool was letting out. It's broad daylight in the middle of the afternoon on Friday, and it's right near a large shopping center. There's multiple neighborhoods in the area. The suspect was last seen walking away ... still possibly armed. And based on the totality of the circumstances, I didn't want anybody else to possibly be the victim." Officer Cadaret also testified at the motion to suppress hearing that the police and a police dog attempted to locate defendant but were unsuccessful before receiving the cell phone ping location information.
At 5:57 p.m., the police learned the suspect's cell phone had pinged on the Santa Rosa Creek Trail east of Willowside Road. Once the police learned the location information, additional officers and resources, including a helicopter, converged on the trail and the defendant was apprehended on the trail at 7 p.m. On April 3, 2017, Officer Cadaret filled out a request for a court order for the cell phone ping.
The trial court denied defendant's suppression motion, stating: "There was information that this was an unprovoked attack, fairly brutal in the nature of the attack. Very near a school, shopping center. And the response to the officers hearing about this is to mobilize, even mobilizing a helicopter. There's no doubt in my mind that Officer Adams had a good faith belief that, in fact, there was a serious situation that needed immediate remediation, and the best way to have done that was a ping. [¶] I believe this was a search under California law; but I also believe that based on the evidence of the timing, the circumstances, the response, the—all the different people, including preschool, that the ping was absolutely in a good faith response and necessary." "On appeal from a denial of a motion to suppress evidence on Fourth Amendment grounds, we review the historical facts as determined by the trial court under the familiar substantial evidence standard of review. Once the historical facts underlying the motion have been determined, we review those facts and apply the de novo standard of review in determining their consequences. Although we give deference to the trial court's factual determinations, we independently decide the legal effect of such determinations." ( People v. Esayian (2003) 112 Cal.App.4th 1031, 1038, 5 Cal.Rptr.3d 542.)
Defendant agrees the trial court was correct in finding that the ping of defendant's cell phone was a search but argues no exception to the warrant requirement applied. The People argue first that there was no Fourth Amendment violation because a single ping of defendant's cell phone does not constitute a search. Both parties cite Carpenter v. United States (2018) 585 U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507, which was decided after the verdict but before defendant was sentenced. Carpenter held that accessing seven days of historical CSLI providing a record of a defendant's past physical movements constituted a Fourth Amendment search. ( Carpenter , supra , 138 S.Ct. at p. 2217 & fn. 3.) However, Carpenter declined to "decide whether there is a limited period for which the Government may obtain an individual's historical CSLI free from Fourth Amendment scrutiny, and if so, how long that period might be" ( id . at p. 2217, fn. 3 ), nor did the Supreme Court "express a view on matters not before [it, including] real-time CSLI" ( id. at p. 2220 ). The parties do not cite any California cases addressing whether obtaining real-time CSLI constitutes a search, and we are unaware of any published authority on this issue. Because we conclude that exigent circumstances justified the officers’ pinging defendant's cell phone, we need not decide whether a single real-time ping of defendant's cell phone was a search.
CSLI stands for "cell-site location information." (Carpenter v. United States , supra , 138 S.Ct. at p. 2211.)
" ‘A long-recognized exception to the warrant requirement exists when "exigent circumstances" make necessary the conduct of a warrantless search.... " ‘[Ex]igent circumstances’ means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by facts known to the officers." ’ " ( People v. Panah (2005) 35 Cal.4th 395, 465, 25 Cal.Rptr.3d 672, 107 P.3d 790.) The reasonableness of the officers’ conduct depends upon whether facts available at the moment of the search support a reasonable belief that the action taken was appropriate. ( Ibid. )
Here, at the time Officer Adams requested a ping of defendant's cell phone, the information available to him was that less than an hour earlier Dennis N. had been repeatedly stabbed in the neck in an unprovoked attack, within 200 yards of a preschool and near a shopping center and multiple neighborhoods. Further, the suspect, who was possibly still armed with a knife, had fled on foot. The area where the witnesses indicated the defendant had headed was a several-hundred-yard field with multiple entrances and exits leading to a creek trail, houses and apartment complexes, and a store; and there are "hundreds of people moving about" the area. The police were actively looking for defendant when they received the CSLI. Based upon the circumstances known to Officer Adams, he believed it was imperative that the suspect be found as soon as possible to prevent another possible unprovoked attack. We agree with the trial court's determination that the exigent circumstances exception applies under the facts of this case, and defendant's motion to suppress was properly denied.
Defendant cites People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333 and argues that the circumstances here were not "an emergency situation requiring swift action to prevent imminent danger to life[.]" ( Ramey , at p. 276, 127 Cal.Rptr. 629, 545 P.2d 1333.) Ramey involved a warrantless arrest in the defendant's home, and the court found that under the circumstances of Ramey's arrest for the nonviolent crime of receipt of stolen property, there was no imminent danger to life or property and no likelihood of flight or destruction of evidence. ( Ramey , at p. 276, 127 Cal.Rptr. 629, 545 P.2d 1333.) Here, the circumstances are readily distinguishable from Ramey , and we find they support a finding of exigent circumstances. (See ibid. ["There is no ready litmus test for determining whether [exigent] circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers"].)
Because we find the exigent circumstances exception applied here, we do not reach the People's alternative argument that the police acted in good faith reliance upon section 1546.1, subdivision (h).
See footnote *, ante .
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The judgment is affirmed.
WE CONCUR:
Siggins, P. J.
Fujisaki, J.