Opinion
F061783 Super. Ct. No. BF133531A
12-30-2011
THE PEOPLE, Plaintiff and Respondent, v. DAMON BENTLEY FRANKLIN, Defendant and Appellant.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J., and Poochigian, J.
APPEAL from a judgment of the Superior Court of Kern County. Jerold L. Turner, Judge.
Judge Turner ruled on appellant's suppression motion, the only relevant motion on appeal.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le Mon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On October 14, 2010, appellant, Damon Bentley Franklin, was charged in an information with being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1), count one). Appellant was charged with misdemeanor allegations that he carried a concealed weapon (§ 12025, subd. (a)(3), count two) and resisted or obstructed a peace officer (§ 148, subd. (a)(1), count three). The information also alleged two prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)). On November 30, 2010, the trial court granted appellant's motion pursuant to section 995 to dismiss count three.
Unless otherwise indicated, all statutory references are to the Penal Code.
On December 7, 2010, the trial court granted appellant's suppression motion with regard to evidence seized from inside his home and observations made upon entering the home, but denied the motion as to a blue and white shirt seized by officers from the doorway of appellant's residence. The motion was denied as to evidence seized at a neighbor's residence on the ground that appellant did not have standing to suppress that evidence.
Appellant entered into a plea agreement, waiving his constitutional rights, and admitted the remaining allegations. Under the terms of the agreement, the court would strike one of the prior serious felony allegations and sentence appellant to prison for no more than six years.
On February 1, 2011, the trial court struck appellant's admission of one prior serious felony conviction allegation. The court sentenced appellant to prison for three years on count one, doubled to six years pursuant to the three strikes law. The court awarded actual custody credits of 76 days and conduct credits of 38 days for total presentence credits of 114 days. Appellant contends that the trial court erred in not granting his suppression motion as to statements made to an officer and other evidence.
FACTS
At the suppression hearing, Officer Bradley Lamb testified as follows. On August 21, 2010 at 4:00 a.m., California Highway Patrol Officers Lamb and Tyre were in the neighborhood of Rexland Acres when they saw a vehicle fail to stop at a stop sign. The officers followed the vehicle, which was traveling at 35 miles per hour through a residential neighborhood with a speed limit of 25 miles per hour.
The officers were trying to catch up to the vehicle to effectuate a traffic stop when it pulled into the driveway of 200 Burchfield. Once the officers reached the parked vehicle, they activated the forward red lights of the patrol car. The passenger exited the vehicle and ran east across the driveway into the front yard of the residence. Lamb identified appellant as the person who fled. Appellant was wearing a blue striped shirt, a blue ball cap, blue shorts, and white shoes.
Officer Tyre contacted the driver of the vehicle.
When Lamb exited the patrol car, it had barely come to a stop. Lamb ran after appellant. Appellant ran into the backyard of the adjacent residence at 202 Burchfield. Lamb heard an object hitting that made a "metal-to-metal noise" and looked into the backyard of 202 Burchfield where he saw two dogs, but not appellant.
When Lamb went back to the front yard, he saw appellant lying on his stomach in the driveway with his arms out to the side in the felony prone position. Appellant was no longer wearing a shirt and he was breathing heavily. Appellant kept telling Lamb not to shoot him. Lamb learned from Tyre that appellant had come out of the front door of 200 Burchfield. On cross-examination, Lamb stated that while appellant was on the ground, he was not sure that appellant was the person in the blue shirt and he had no reason to arrest or detain him. Lamb did not immediately recognize appellant's face and had not seen braids on the person who had fled. Lamb then asked appellant for his identification. Appellant refused to move his hands to give his identification to Lamb. Lamb had to remove appellant's identification card from appellant's pocket.
When Lamb saw appellant on the ground, he did not recognize his face.
When Lamb first saw appellant in the felony prone position on the ground, he did not give appellant instructions or place him under arrest. Lamb did not let appellant leave immediately because appellant kept asking Lamb not to shoot him, and then would not give Lamb his identification. Appellant was on the ground two or three minutes before Lamb handcuffed him and placed him in the patrol car.
Appellant was apparently wearing braids when he was arrested and was wearing them at the suppression hearing.
At this time, Lamb did not believe appellant was free to leave because he was in the felony prone position asking Lamb not to shoot him. Appellant told Lamb his son was in the house. Lamb spent about two or three minutes talking to appellant before placing him in handcuffs and another two or three minutes handcuffing appellant and placing him in the patrol car.
Lamb detained appellant in handcuffs and placed him in the back of the patrol car. Lamb requested a records check while appellant was in the patrol car and later learned appellant had three outstanding warrants for his arrest. Before Lamb learned about the outstanding warrants, the dispatcher contacted Lamb to tell him that the neighbors at 202 Burchfield had found a gun.
Lamb went to the neighbor's home. The neighbor had seen one of his dogs carrying a gun in its mouth into the doghouse. The neighbor handed Lamb the gun in a white rag. Lamb spent five to seven minutes at the neighbor's house. Lamb went back to appellant "some time later."
After appellant was placed in the patrol car, the dispatcher informed Lamb about the outstanding arrest warrants for appellant. A portion of the ten to fifteen minutes appellant was inside the patrol car had elapsed before Lamb learned appellant had outstanding arrest warrants. Minutes after putting appellant in the patrol car, Lamb learned the neighbor had located a firearm in the backyard.
Appellant was in the patrol car for about ten to fifteen minutes. Before Lamb informed appellant that he was arrested, Lamb walked up to the entryway of 200 Burchfield. Although the screen door was shut, the front door of the house was open. Lamb looked inside the front door and saw the striped blue and white shirt appellant had been wearing earlier in plain view. When Lamb saw the shirt inside appellant's residence, he went back to appellant to tell him that he was under arrest. Appellant refused to talk to Lamb.
Lamb learned from the driver of the vehicle that appellant had a young child in the house. Lamb and another officer searched appellant's home, concerned about the child's welfare. The rear entrance to the home was a sliding glass door. The door was unlocked and vertical blinds on the door were broken off and lying on the living room floor.
DISCUSSION
Appellant argues that Officer Lamb had no legal basis to detain him and that his detention was prolonged, and therefore unreasonable. Appellant further argues that his flight and later actions did not justify his detention. Appellant contends his statements while in the felony prone position and his shirt should have been suppressed. We disagree and affirm the judgment.
Even where an officer lacks probable cause to arrest a suspect, the officer may temporarily detain a suspect when the officer reasonably believes a crime has occurred or criminal activity is afoot. The detention can last no longer than necessary to effectuate the purpose of the stop. The stopping, handcuffing, and detention of a suspect for a few minutes can constitute a legal investigative detention. (People v. Celis (2004) 33 Cal.4th 667, 674 (Celis).)
In ruling on a motion to suppress, the trial court finds the historical facts, selects the law, and applies it to determine if the law, as applied, has been violated. We review the trial court's resolution of the factual inquiry under the deferential standard of substantial evidence. The ruling by the trial court is a mixed question of law and fact subject to independent review. On appeal, we do not consider the correctness of the court's reasons for its decision, only the correctness of the ruling itself. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145 (Letner).)
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 (Souza).) The appellate court reviews the objective reasonableness of the facts known to the officer, not the officer's legal opinion about those facts. (People v. Limon (1993) 17 Cal.App.4th 524, 539 (Limon).) The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. The principal function of the officer's investigation is to resolve that very ambiguity and establish whether the activity is legal or illegal. (In re H.M. (2008) 167 Cal.App.4th 136, 145 (H.M.).)
The Fourth Amendment permits an officer to "conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot" and that the person detained is engaged in that activity. (Illinois v. Wardlow (2000) 528 U.S. 119, 123 (Wardlow); Souza, supra, 9 Cal.4th at p. 230.) Courts look to the totality of circumstances of each case in determining whether the "'detaining officers [had] a particularized and objective basis for suspecting [the detainee] of criminal activity. [Citations.]'" (Souza, supra, 9 Cal.4th at p. 230; Brown v. Texas (1979) 443 U.S. 47, 52; United States v. Arvizu (2002) 534 U.S. 266, 273.) This approach allows officers to draw on their own training and experience in deciding whether criminal activity is afoot. (United States v. Arvizu, supra, 534 U.S. at p. 273.) We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. (People v. Garry (2007) 156 Cal.App.4th 1100, 1106.)
In Wardlow, the high court recognized that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. [Citations.]" (Wardlow, supra, 528 U.S. at p. 124.) California courts have recognized that such behavior, in conjunction with other factors, can form an officer's reasonable suspicion that criminal activity is afoot. (Letner, supra, 50 Cal.4th at p. 146 [flight under suggestive circumstances suggestive of guilt]; generally see People v. McGaughran (1979) 25 Cal.3d 577, 590.)
In Souza, our Supreme Court found that when an officer is patrolling a high crime neighborhood late at night and two people near a parked car act evasively when the officer directs his patrol car light toward them, the officer is justified in conducting a brief, investigative detention to find out whether activity being engaged in is criminal or legal. (Souza, supra, 9 Cal.4th at pp. 240-242.)
Appellant's behavior did not consist of mere flight from the scene. As the officers were trying to initiate a traffic stop with their forward red lights activated, appellant fled from the vehicle wearing a blue shirt and a ball cap. Appellant jumped a fence into the neighbor's backyard. Lamb heard a metal-to-metal sound. Appellant had clearly discarded something, but when Lamb went to look over the backyard fence, he could not see appellant. Appellant soon came out of his home without any shirt or hat. Appellant, without any direction from the officers, voluntarily placed himself in the felony prone position. Appellant was pleading with Lamb not to shoot him.
Any statements made by appellant while voluntarily assuming the felony prone position were not made under duress. Appellant had not yet been detained by Lamb. The conversation that occurred during this early stage of appellant's encounter with Lamb was consensual. (See People v. Franklin (1987) 192 Cal.App.3d 935, 941; People v. Epperson (1986) 187 Cal.App.3d 115, 118-120.) The trial court did not err in denying appellant's motion to suppress his initial statements to Lamb.
Appellant's actions, involving flight, abandonment of property, change of clothing, and voluntarily lying in the felony prone position were very highly suspicious circumstances suggestive of appellant's nervousness and consciousness of guilt. (Wardlow, supra, 528 U.S. at p. 124; Letner, supra, 50 Cal.4th at p. 146.) Appellant's conduct justified his detention so Lamb could determine what was happening. (See People v. Warren (1984) 152 Cal.App.4th 991, 994-997 [detention for suspect to show investigating officer receipts for property suspect claimed to own justified to clarify ambiguity surrounding suspect's statements].)
The dispatcher soon informed Lamb that the neighbor at 202 Burchfield had seen his dog carrying a gun into the doghouse. Lamb spent five to seven minutes talking to the neighbor and retrieving the gun. At this stage, Lamb had further reason to extend appellant's detention to determine if the gun belonged to appellant. Lamb took three minutes to detain appellant and then another five to seven minutes investigating the gun at the neighbor's home. Excluding the first few minutes that appellant voluntarily talked to Lamb after independently assuming the felony prone position, the total elapsed time that appellant was detained while being handcuffed, placed in the patrol car, and for Lamb to investigate the discovery of the gun was eight to ten minutes, not unduly long under the circumstances. This entire detention was only minutes long and appeared to be necessary for Lamb to talk to the neighbor and to retrieve the gun. (Celis, supra, 33 Cal.4th at p. 674.)
When Lamb then went to appellant's home and looked in through the screen door, he saw the blue shirt inside in plain view. Appellant had no expectation of privacy for what an officer could view through the screen of the open door to appellant's home. (See People v. Chavez (2008) 161 Cal.App.4th 1493, 1499-1500.) Also, Lamb had learned that there were three outstanding warrants for appellant's arrest.
In making our determination that Lamb reasonably detained appellant, we are not bound by the officer's legal opinion about the facts. (Limon, supra, 17 Cal.App.4th at p. 539.) Lamb's testimony concerning whether he had a basis to arrest or detain appellant was not entirely consistent. To the extent that Lamb testified that he did not believe he had a legal basis to arrest, or to detain, appellant when appellant was in the felony prone position, we disregard the officer's legal opinion. Lamb was trying to sort out the facts of a strange sequence of events and he needed some time to sort out the several ambiguities presented by appellant's nervous and unusual behavior. (H.M., supra, 167 Cal.App.4th at p. 145.)
There were several ambiguities created by the appellant himself. Although Lamb did not immediately recognize the man in the felony prone position as the person who fled the vehicle, this was because the man who fled was wearing a shirt and ball cap. Appellant was wearing braids. It can be reasonably inferred from the totality of Lamb's testimony at the suppression hearing that he did later recognize appellant as the person who initially fled from the vehicle.
--------
We conclude that the trial court did not err in denying those portions of appellant's suppression motion now being challenged on appeal.
DISPOSITION
The judgment is affirmed.