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People v. Brown

Court of Appeals of California, Fifth Appellate District.
Jul 8, 2003
No. F040049 (Cal. Ct. App. Jul. 8, 2003)

Opinion

F040049.

7-8-2003

THE PEOPLE, Plaintiff and Respondent, v. DEANDRE BROWN et al., Defendant and Appellant.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant Deandre Brown. Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant Jeffrey Brown. Eleanor M. Kraft, under appointment by the Court of Appeal, for Defendant and Appellant Ralph Alfred Collins. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Jeffrey D. Firestone and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.


Appellants Deandre Brown, Jeffrey Brown, and Ralph Alfred Collins each pled no contest to a charge of assault with a machine gun or assault weapon (Pen. Code, § 245, subd. (a)(3)), as well as admitting the allegation that the offenses were committed in furtherance of a criminal street gang (§ 186.22, subd. (b)(1)). Deandre also pled no contest to permitting another to discharge a firearm from a vehicle that he owned or drove (§ 12034, subd. (b)). The court sentenced Deandre to 13 years and 8 months in prison, Jeffrey to 13 years, and Collins to 34 years.

Unless indicated otherwise, subsequent statutory references are to the Penal Code.

To avoid confusion, Deandre Brown and Jeffrey Brown will be referred to by their first names.

FACTUAL AND PROCEDURAL BACKGROUNDS

Before beginning his shift on the gang enforcement unit, Bakersfield police officer Clayton Madden was informed that defendant Collins had been shot earlier that day. Collins was a member of the West Side Crips and was believed to have been shot by a member of the rival Bloods. Later during their shift, Madden and his partner, Gary Carruesco, received a radio report of shots fired from "an SUV type vehicle" at an apartment complex in Blood territory. Believing the shooting to be in retaliation for the one earlier in the day, the officers proceeded to "the heart" of the West Side Crips territory.

Not more than two minutes after the broadcast, as the officers were stopped at a stop sign some 4-to-10 miles from the shooting site, an SUV-type vehicle drove by on the cross street, coming from the direction of the shooting. The officers could see that the car held several occupants but could not determine their ethnicity. The officers did see that the right backup light cover was broken and the bulb was broken or missing.

When Carruesco pulled behind the SUV and initiated a traffic stop, the vehicle "slowly veered to the right, to the west curbline," but "it then proceeded back into the roadway and continued southbound." As the officers followed, the SUV again moved toward the right curb and, while the car was still moving slowly, Jeffrey jumped out of the right rear passenger door with his hand on his waistband. As Madden gave chase, he saw Jeffrey throw away what appeared to be a gun. Madden yelled to Carruesco that the runner had a gun and continued his pursuit, eventually catching up to Jeffrey and arresting him.

Carruesco continued to follow the SUV, which stopped, finally, four blocks from where Carruesco first turned on the police cars overhead lights. Carruesco detained the driver, Deandre, and the passenger, Collins, both of whom proved to be on active parole, subject to search-and-seizure conditions.

At the suppression hearing (§ 1538.5), the court received evidence and heard arguments, during which defense counsel established that the Vehicle Code requires that a vehicle have "one or more" backup lights (Veh. Code, § 24606). The court ruled that because Jeffrey ran and did not submit to the stop, "he has no standing to object to the seizure of any of the evidence in this case. So with regard to [Jeffrey] Brown, the motion is denied." Indicating that it would like to hear more evidence regarding the suspected retaliatory nature of the shooting and the description of the SUV, the court allowed the People to reopen their case.

On recall, Carruesco testified that the radio broadcast of the shooting described the suspect vehicle as a newer, light-colored SUV; that, in his opinion, the shooting was likely in retaliation for the shooting of Collins, based on his knowledge of African-American street gangs; that he and his partner had driven to Crips territory because they expected the SUV to return there; and, finally, he believed the SUV was likely to be the suspect vehicle because of the location, timeframe, the description of the vehicle, and the ethnicity of the driver. When the court noted that Carruesco had previously said he could not see the ethnicity of the occupants of the vehicle, he explained that he had earlier been asked if he could see them as he followed them, which he could not. However, he testified, when the car first passed in front of the patrol car at the stop sign, it "was at an angle to us where we could see the race of at least the driver." Carruesco also stated that the overwhelming majority of West Side Crips are Black.

Called by the defense, Madden testified that he did not remember the radio broadcast including information about the color or age of the SUV; he did not put that information in his police report; and he first saw the ethnicity of any of the occupants of the vehicle when the passenger got out and ran.

In ruling, the court found Carruesco credible with respect to viewing the ethnicity of the driver: "When youre at a stop sign and someone is approaching you from the right, I cant imagine you not seeing the driver of that vehicle." Under all the circumstances, the court found that "there was probable cause for at least a minimal detention of the vehicle to investigate the possibility that it was involved in these crimes, based on the expert testimony of Officer Carruesco."

DISCUSSION

I. Judicial notice of the record in unrelated cases

Appellants request that judicial notice be taken under Evidence Code sections 459 and 452, subdivision (b), of the unpublished opinions of this court and the record in four "related" cases, in which they contend Officer Carruesco also gave contradictory or unreliable testimony: People v. Hanks (Nov. 14, 2001), F035120; People v. Hester (Nov. 7, 2001), F034897; People v. Anderson (Oct. 15, 2001), F035357; and People v. Powell (Oct. 19, 2001), F035169. Appellants contend that judicial notice is warranted because the officers testimony was critical to the trial courts finding, and the proffered cases would demonstrate a pattern of unreliability on the part of the officer. Respondent argues that appellants seek, impermissibly, to augment the record on appeal with matters not considered by the trial court so as to make factual findings on officer credibility. (People v. Peevy (1998) 17 Cal.4th 1184, 1207-1208 & fn. 4, 953 P.2d 1212.)

Appellants contend that respondents argument in the Reply Brief against the motion was untimely and thus cannot be considered. Appellants acknowledge that we deferred ruling on a motion for judicial notice, but claim that because the order is dated October 18, 2002, it is impossible to tell if the deferral applies to this motion for judicial notice or to another one filed by Collins. The record completely contradicts this contention. Jeffrey filed this motion on June 25, 2002. On June 27, 2002, in an order that specifically applied to "Appellant Jeffrey Browns Request for Judicial Notice," we deferred ruling on the matter pending consideration on the merits. Collins did not even file his motion until July 30, 2002.

We note first that the proffered cases are related to each other, arising from a common detention/arrest scenario (People v. Killebrew (2002) 103 Cal.App.4th 644); however, these cases are in no way related to appellants circumstances. And even in cases that have shared identical factual elements, we have held that "while a court can take judicial notice that a court made a particular ruling, it cannot take judicial notice of the truth of a factual finding made in another action." (People v. Moore (1997) 59 Cal.App.4th 168, 178.)

Here, appellants ask us not so much to take judicial notice of a factual finding in another case as to accept extrinsic evidence from unrelated cases. In doing so, appellants ask us to make a factual finding regarding the inherent credibility of a particular witness, an undertaking as sweeping as it is unwarranted on appeal. In People v. Waidla (2000) 22 Cal.4th 690, 996 P.2d 46, our Supreme Court held that judicial notice of the record on appeal in an accomplices case was inappropriate as it would improperly augment the record in the defendants case. (Id. at p. 703, fn. 1.) Here, appellants ask us to take judicial notice of material even further removed from their case and then to make additional findings of fact. Our Supreme Court has further held that "an appellate court generally is not the forum in which to develop an additional factual record, particularly in criminal cases when a jury trial has not been waived. [Citations.]" (People v. Peevy, supra , 17 Cal.4th at p. 1207.) We thus conclude that the inquiry appellants would have us make is doubly impermissible and decline the request for judicial notice.

II . The vehicle stop

Appellants contend that the officers sought to stop the vehicle based on insufficient cause and, thus, any evidence obtained pursuant to that stop should have been suppressed. We do not agree.

"It is settled that circumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation. [Citations.] Although each case must be decided on its own facts, certain standards for judging the lawfulness of the officers conduct have emerged from our decisions. [Citations.]" (In re Tony C. (1978) 21 Cal.3d 888, 892.) "The guiding principle, as in all issues arising under the Fourth Amendment and under the California Constitution [citations], is the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security." (Ibid.)

"The courts have concluded that in order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question." (In re Tony C., supra, 21 Cal.3d at p. 893.)

Factors that have been found relevant in evaluating the totality of the circumstances include the officers training and experience, time of day, location, and the areas reputation for criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 239-241, 885 P.2d 982.)

Appellants contend that Carruescos testimony was obviously fabricated following the reopening of the prosecutions case. That being said, the court specifically found the officer to be credible. We will not dwell on the matter since our analysis does not depend on the officers additional testimony. We only reiterate that a reviewing court does not reweigh the evidence, reappraise the credibility of the witnesses, or resolve factual conflicts. These are functions reserved for the trier of fact. (People v. Culver (1973) 10 Cal.3d 542, 548, 111 Cal. Rptr. 183, 516 P.2d 887.)

Appellants then contend that even if all of Carruescos testimony were credible, the circumstances known to the officers were meager: a light-colored, newer SUV, traveling in Crips territory, driven by an African-American, arriving from the direction of a shooting two minutes earlier and some 4-to-10 miles away. Thus, appellants argue, the stop was initiated on nothing more than a mere "hunch." Although potentially troubling, we do not think the circumstances surrounding the initial attempt to stop the vehicle are dispositive since, as the United States Supreme Court has instructed, until there is a detention, there can be no illegal detention. (California v. Hodari D. (1991) 499 U.S. 621, 629, 113 L. Ed. 2d 690, 111 S. Ct. 1547.)

In Hodari, youths ran away on seeing a patrol car. Suspicious, the officers gave chase. The officer running after Hodari saw him toss away what appeared to be a small rock. The officer tackled Hodari and the rock proved to be cocaine. (California v. Hodari D., supra, 499 U.S. at p. 623.) The attorney general conceded that the officers did not initially have reasonable suspicion to detain Hodari. (Id. at p. 623, fn. 1.) The court framed the central issue as "whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield." (Id. at p. 626.) The court found that no seizure occurred absent a yielding to the show of force. "In sum, assuming that [the officers] pursuit in the present case constituted a show of authority enjoining Hodari to halt, since Hodari did not comply with that injunction he was not seized until he was tackled." (Id. at p. 629.) The court explained how its ruling was consistent with the objectives motivating the exclusionary rule: "Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed. Since policemen do not command Stop! expecting to be ignored, or give chase hoping to be outrun, it fully suffices to apply the deterrent to their genuine, successful seizures." (Id. at p. 627.)

Here, activation of the police cars overhead lights constituted a show of authority. (People v. Bailey (1985) 176 Cal. App. 3d 402, 405-406, 222 Cal. Rptr. 235.) The parties do not seriously contest that the car was still moving when Jeffrey jumped out, which we believe establishes that it had not yielded to the show of authority, given the previous feigned stop by the vehicle. Whatever else the officers may or may not have known, we think the desperation demonstrated by the need to escape from a moving car, at considerable risk of injury, raised a reasonable suspicion that criminal activity was, or was about to be, afoot. Certainly, we think the circumstances warranted at least a brief detention of the car and its occupants, as well as Jeffrey, to ascertain if the desperation was motivated by the need to escape criminality or the need to escape liability for criminality. Maddens seeing Jeffrey throw away what appeared to be a gun, and communicating that to Carruesco, provided a basis for searching the vehicle as well. (Michigan v. Long (1983) 463 U.S. 1032, 1035-1036, 77 L. Ed. 2d 1201, 103 S. Ct. 3469.)

Appellants attempt to argue that Hodari is distinguishable because it did not involve a traffic stop. We find the contention to be the classic distinction without a difference: Both cases involve an unheeded show of authority. Appellants alternatively argue that the SUV had submitted to the show of authority because it had braked to a point "just short of stopping" when Jeffrey jumped, and the time until the car came to a complete stop was "inferentially short." We are not persuaded. As noted above, because of the previous failure of the car to actually stop, we do not think it yielded to the show of authority until it came to a complete stop. As a result, the court properly denied the motion to suppress the evidence resulting from the stop.

Given this conclusion, we need not address respondents contention that the stop was proper under an alternative Vehicle Code section or that it was justified by the discovery after the stop that Deandre and Collins were on active parole. Neither need we determine whether the trial court erred in finding that Jeffrey did not have standing to challenge the stop, since affording him standing would not have changed the outcome of his case.

III. Collinss 1999 prior conviction

As part of his plea, Collins admitted the truth of the allegations that he had suffered a prior serious felony conviction, a prior prison term, and two prior three strikes convictions (& sect;§ 667, subds. (a) & (c)-(j); 667.5, subd. (b)). At sentencing, appellant argued that his 1999 adjudication for carrying a concealed, loaded firearm in a public place (& sect; 12031, subd. (a)(2)(C)) did not constitute a strike because the People had not shown that he had acted in furtherance of a gang, as required to raise section 12031 to a felony. The court held that a plea under section 12031, subdivision (a)(2)(C), did constitute a felony, as discussed in People v. Robles (2000) 23 Cal.4th 1106, 1115, and a strike. That said, the court exercised its discretion to strike the 1999 conviction as a strike. The material to be judicially noticed contains the 1999 complaint, which clearly states that the section 12031 charge was committed with the intent to aid a gang.

Appellant renews the contention that the conviction did not constitute a felony. He adds that the courts dismissal in 1999 of an additional charge of participation in a criminal street gang under section 186.22 demonstrates that the court and the parties acknowledged that the conviction was not for a gang offense. Appellant also requests that we take judicial notice of records from the 1999 offense, most notably the police reports detailing the circumstances of the offense.

Appellants argument with respect to the 1999 courts reasoning for dismissing the section 186.22 charge is purely speculative and merits no further consideration. Whatever the reason for the dismissal of that charge, appellant cannot escape the fact that he pled to the charge under section 12031, subdivision (a)(2)(C). The statute reads:

"(a)(1) A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place ...

"(2) Carrying a loaded firearm in violation of this section is punishable, as follows: [P] ... [P]

"(C) Where the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act ... as a felony."

Our Supreme Court has construed the statute as follows:

"We construe section 12031(a)(2)(C)s phrase active participant in a criminal street gang, as defined in subdivision (a) of section 186.22 as referring to the substantive gang offense defined in section 186.22 (a). We pointed out earlier that contrary to what section 12031(a)(2)(C) says, section 186.22(a) does not at all define the phrase active participant in a criminal street gang. Instead, section 186.22(a) defines a substantive gang offense, setting forth the elements of that offense. Thus, carrying a loaded firearm in public becomes a felony under section 12031(a)(2)(C) when a defendant satisfies the elements of the offense described in section 186.22(a). Those elements are actively participating in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity and willfully promoting, furthering, or assisting in any felonious criminal conduct by members of that gang. (§ 186.22(a).)" (People v. Robles, supra , 23 Cal.4th at p. 1115.)

Thus, by pleading to section 12031, subdivision (a)(2)(C), Collins necessarily pled to "actively participating in any criminal street gang" and "willfully promoting, furthering, or assisting in any felonious criminal conduct by members of that gang. [Citation.]" (People v. Robles, supra, 23 Cal.4th at p. 1115 .)

Nonetheless, appellant argues there was no evidence that he acted in furtherance of a gang. The argument ignores appellants plea. Appellant does not allege that he was unaware that acting in furtherance was an element of section 12031, subdivision (a)(2)(C). The requisite mental state is generally derived by inference from the facts because defendants rarely concede it. However, when, as here, the defendant admits a charge that includes a mental-state element, he obviously concedes to that element as well. We cannot imagine better evidence of a required mental state than an individuals own concession.

Having reached this conclusion, we decline appellants request for judicial notice of the facts in the proffered court records. Even if it were proper to take judicial notice of these records, the matter is moot given our finding with respect to Collinss plea and the elements encompassed within it. We conclude the court properly found that Collinss 1999 conviction was a felony.

DISPOSITION

The judgments are affirmed. The motions for judicial notice are denied.

WE CONCUR: Harris, Acting P.J., and Levy, J.


Summaries of

People v. Brown

Court of Appeals of California, Fifth Appellate District.
Jul 8, 2003
No. F040049 (Cal. Ct. App. Jul. 8, 2003)
Case details for

People v. Brown

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DEANDRE BROWN et al., Defendant…

Court:Court of Appeals of California, Fifth Appellate District.

Date published: Jul 8, 2003

Citations

No. F040049 (Cal. Ct. App. Jul. 8, 2003)