Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08901836, James R. Oppliger, Judge.
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Poochigian, J., and Detjen, J.
Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), a jury convicted appellant, James Arthur Carter, Jr., of felony possession of cocaine base (Health & Saf. Code, § 11350, subd. (a); count 1) and resisting arrest (Pen. Code, § 148, subd. (a)(1); count 2), a misdemeanor. The court imposed the two-year midterm sentence on count 1 and sentenced appellant to time served on count 2.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant, apparently in response to this court’s invitation to submit supplemental briefing, has filed a brief in which he argues, as best we can determine, as follows: (1) the court erred in denying his suppression motion; and (2) the prosecution withheld exculpatory evidence in violation of appellant’s constitutional right to due process of law. We will affirm.
FACTS
Prosecution Case
On March 15, 2008, at approximately 1:00 p.m., City of Fresno Police Officer David Porcella was on patrol in a marked police car with his partner, Officer Anthony Alvarado, when he received information by police radio and text transmitted to a computer screen in the police car that Brian Ricks, who was wanted for various crimes, had been seen walking on Fruit Avenue near Shields Avenue in Fresno, and that Ricks was a Black male, six feet to six feet three inches tall, weighing 230 pounds, with a goatee and a one-inch “Afro” hair style, and wearing a black jacket and black jeans. Officer Porcella drove to the area where Ricks had reportedly been seen and, after approximately 10 to 15 minutes of canvassing, saw a person, who the officer identified in court as appellant, in a convenience store approximately one-half mile from the corner of Fruit and Shields. Appellant “matched the physical and clothing descriptors in the call.” He is a Black male, the same “approximate height and weight” as the described subject, he had a goatee and a half-inch to one-inch “Afro-type haircut, ” and he was wearing a blue sweatshirt and blue jeans.
Except as otherwise indicated, the “Prosecution Case” portion of our factual statement is taken from Officer Porcella’s testimony at trial.
After exiting the store, appellant began walking to his left, at which point Officer Porcella called out to him something like “‘Hey. Police. Can I talk to you?’” Appellant continued walking, at which point Officer Porcella said, “‘Hey. Stop. Police.’” In response, appellant shook his head and said something like “no” or “nah.” The officer directed appellant to stop three or four more times, but appellant kept walking. As he walked he said “various things, ” such as “No[, ] [w]hat do you want?”
Appellant came to a car parked approximately 40 feet from the convenience store and got in the passenger side of the car. Before appellant could close the car door, Officer Porcella positioned himself between appellant, who was sitting in the car, and the open car door, and told him approximately five times to get out of the car and get on the ground. Appellant, however, reached for the door handle to pull the door closed, at which point Officer Porcella grabbed appellant and waited for Officer Alvarado to assist him. Officer Alvarado came to Officer Porcella’s aid, and, although appellant struggled by flailing his arms and trying to pull away, Officer Porcella was able to handcuff appellant.
After handcuffing appellant, Officer Porcella placed him under arrest for resisting arrest and conducted a search of appellant’s person. During that search, the officer found in one of appellant’s pockets five small “rocks” of what the officer believed to be cocaine. A police criminalist testified that he examined the five objects, determined that they weighed 1.38 grams, chemically analyzed one of the objects, and, based on that analysis, concluded that it contained cocaine base.
Defense Case
Lisa Romero testified to the following: On March 15, 2008, she parked the SUV she was driving in front of a convenience store and appellant, who was her passenger, went into the store to pay a bill and buy something. At no time prior to stopping at the store was appellant walking on Fruit Avenue. After appellant came out of the store he was talking on his cell phone and getting into the vehicle when police officers pulled him out of the car. When appellant speaks on his cell phone, he “tones [sic] everything else out....”
DISCUSSION
Suppression Motion
Appellant first argues, as best we can determine, as follows: He was illegally detained by police, evidence was seized as a result of that illegal detention, and therefore the court erred in denying his motion to suppress evidence. Appellant bases his claim of illegal detention, in turn, on his claim that he did not meet the description provided to the police.
Factual and Procedural Background
Appellant made his motion to suppress evidence at the preliminary hearing on March 23, 2009. At that hearing, Officer Porcella testified to the following: He received a “dispatch call” which “advised of a wanted subject” in “the area” of Fruit and Shields Avenues. The subject was described as a Black male adult, six feet to six feet three inches in height, with a “one-inch Afro-type haircut” and a goatee, and wearing “a black jacket and dark jeans.” In response to that call, Officer Porcella drove to the area and there saw a person “matching the description, ” who he identified in court as appellant, coming out of a liquor store. On cross-examination, the officer testified that although he had received a description of a person wearing “a black jacket and dark jeans, ” appellant was wearing “blue jeans and [a] blue sweatshirt.” He further testified, “His physical description matched, his clothing was very close, he was in the same area of the call, and there was not very many people in that area at that time. I saw no other Black males the entire time I canvassed the area....” The court denied the motion.
Appellant filed a notice of a renewed suppression motion (Pen. Code, § 1538.5, subd. (i)) on November 25, 2009. The court denied the renewed motion following a hearing on December 11, 2009.
Analysis
The Fourth Amendment to the United States Constitution guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel. (People v. Maury (2003) 30 Cal.4th 342, 384.) However, “an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” (Illinois v. Wardlow (2000) 528 U.S. 119, 123.) “‘Although police officers may not arrest or search a suspect without probable cause and an exception to the warrant requirement, they may temporarily detain a suspect based only on a “reasonable suspicion” that the suspect has committed or is about to commit a crime.’” (People v. Durazo (2004) 124 Cal.App.4th 728, 734.)
“[A] general description has been held sufficient justification for stopping and questioning persons meeting that description.” (People v. Craig (1978) 86 Cal.App.3d 905, 911 (Craig).) It is not necessary that the suspect “perfectly match the general description given....” (Ibid.) In Craig, the court held police officers acted reasonably in detaining the defendants “since the descriptions and appearances were substantially the same, and coincided in the discernable factors (race, sex, build, number)....” (Ibid.)
In the instant case, the clothing was not an exact match — the suspect was described as wearing a black jacket and “dark” jeans, while appellant was wearing a blue sweatshirt and blue jeans — but according to the officer, the “physical description” matched, and the officer saw few people, and no other Black males, in the area. On this record, the challenged detention was not constitutionally unreasonable.
Moreover, assuming for the sake of argument that appellant was illegally detained, there was no error in the denial of his suppression motion. “Broadly speaking, evidence may be excluded as ‘fruit of the poisonous tree’ where its discovery ‘results from’ or is ‘caused’ by a Fourth Amendment violation. [Citation.] Exclusion is not required, however, where the evidentiary ‘fruit’ is derived from a source that is independent of the ‘poisonous’ conduct or where ‘“the connection between the lawless conduct of the police and the discovery of the challenged evidence has ‘become so attenuated as to dissipate the taint.’”’ [Citation.] The ‘fruit of the poisonous tree’ theory contemplates evidence being discovered along a causal ‘time line’ or ‘road, ’ beginning at the ‘poison’ of a Fourth Amendment violation, and ending at the ‘fruit’ of newly discovered information, witnesses, or physical evidence. [Citation.] When the time line becomes too attenuated, or the causal ‘road’ is blocked by an intervening, independent act, the ‘poison’ is declared purged and its evidentiary ‘fruit, ’ is admissible.” (In re Richard G. (2009) 173 Cal.App.4th 1252, 1262 (Richard G.).)
“An individual’s decision to commit a new and distinct crime, even if made during or immediately after an unlawful detention, is an intervening act sufficient to purge the ‘taint’ of a theoretically illegal detention.” (Richard G., supra, 173 Cal.App.4th at p. 1262.) “[W]here a police officer... sees a defendant commit a new crime at the same time as the defendant is subjected to an unlawful detention, ” “the defendant’s new criminal behavior breaks the causal link between any constitutional violation and evidence of the new crime.” (Ibid.)
Thus, in People v. Prendez (1971) 15 Cal.App.3d 486 (Prendez), the police illegally entered a motel room and the defendant fled. (Id. at pp. 487-488.) The police caught the defendant and recovered several balloons containing narcotics. (Id. at p. 488) In rejecting the defendant’s argument that the police officers’ illegal entry tainted his arrest and the seizure of evidence, the court noted that the defendant’s action in taking flight was an independent, intervening act, sufficiently distinct from the illegal entry to cure the taint. (Id. at pp. 488-489.) The court stated: “[The defendant]’s act in fleeing is analogous to the commission of an offense subsequent to the police conduct said to be illegal — which subsequent offense then dissipates the taint caused by the police’s original misconduct.” (Id. at p. 489.) Here, as in Prendez, appellant’s act of resisting arrest — the commission of a criminal offense — “dissipated the taint” of any unlawful detention. (Ibid.) Therefore, the court did not err in denying appellant’s suppression motion.
Claim of Brady Error
At the hearing on motions in limine on January 14, 2010, defense counsel argued that he had just received through “new discovery” a “911, slash, reporting party call-in, ” i.e., apparently, a tape of a 911 call. Counsel asserted that the 911 call revealed the following: The “reporting party” who called the police to report that the “suspect” was in the area of Fruit and Shields Avenues, and who described the suspect, did not actually see the suspect. Rather, the reporting party was conveying information obtained from the reporting party’s brother.
In a motion in limine, counsel argued that because he had just received this information and he “believe[d] the People [did not] have the brother who told the reporting party [about the suspect], ” appellant should be able to either present a “new” suppression motion under subdivision (h) of Penal Code section 1538.5 or renew his suppression motion under Penal Code section 1538.5, subdivision (i). The court denied the motion.
On appeal, appellant argues that the prosecutor “deliberately withheld” and “never turn[ed] over... until... trial” the “911 tape, ” and that he (appellant) “could have prove[en] [his] innocence if the DA had... turn[ed] over the evidence in a timely [manner].” As best we can determine, appellant contends these factors establish that the prosecution failed to make timely disclosure of exculpatory evidence in violation of appellant’s rights under the due process clause of the United States Constitution. There is no merit to this contention.
The federal due process clause requires the prosecution to disclose all material, exculpatory evidence in its custody or control to the defendant. (Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady).) “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (United States v. Bagley (1985) 473 U.S. 667, 682.) Even if evidence is exculpatory and material, “No denial of due process occurs if Brady material is disclosed … in time for its effective use at trial.” (United States v. Higgs (3d Cir. 1983) 713 F.2d 39, 44.)
We assume for the sake of argument that, as appellant argued in presenting his motion in limine to renew his previous suppression motion or make a new suppression motion, the tape of the 911 call was exculpatory in that it was relevant to show that the police did not have a reasonable articulable suspicion that criminal activity was afoot and therefore detained appellant unlawfully.
Even so, the 911 tape was not material with respect to the issue of suppression of evidence because, as demonstrated above, there was no error in the denial of appellant’s suppression motion, regardless of whether appellant was unlawfully detained. Thus, even if the evidence had been disclosed in time for appellant to raise his Brady claim in his suppression motion, there is no likelihood the motion would have been granted.
Moreover, assuming further for the sake of argument that the evidence was material on the issue of appellant’s guilt or innocence of the charged offenses as well as exculpatory, appellant suffered no violation of his due process rights.
A document described in the record as the “3/15/08 EVENT REPORT” and designated Exhibit No. 1 was admitted into evidence at trial. In closing argument, defense counsel told the jury appellant could not be convicted of resisting arrest, regardless of his conduct, if the police “had no legal right to detain [him].” Subsequently, referring to information contained in Exhibit No. 1, counsel told the jury the following: “... the reporting party never had a visual on Brian Ricks, meaning the reporting party who called the police never saw Brian. The reporting party received this information through some third individual. Do we know who that is? No. Do we know how reliable that person is? No. So do you know how reliable that information is? No. [¶] So what you have is a bad game of telephone... where someone gets on and says it’s A, B and C, then the next person says B, C, D, E and F, and by the time it gets to the last person the story is all messed up. This is the information the officers are relying on. Faulty information, not reliable information. [¶] Do we allow law enforcement to use the power they have to detain someone on such faulty information? That’s for you to decide.”
Thus, in closing argument, defense counsel made use of evidence that the reporting party based his or her description of Ricks on information obtained from another person. There is nothing in the record to suggest that the timing of the disclosure of the 911 tape in any way interfered with the effective use of this information at trial.
Review of Other Issues
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.