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People v. Clemons

California Court of Appeals
Oct 9, 2008
E044213 (Cal. Ct. App. Oct. 9, 2008)


THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DARNELL CLEMONS, Defendant and Appellant. E044213 California Court of Appeal, Fourth District, Second Division October 9, 2008


         APPEAL from the Superior Court of San Bernardino County. No. FSB701000, Arthur Harrison, Judge.

         Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

         Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.


         RICHLI, J.

         A jury found defendant guilty of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) (count 1) and possession of 28.5 grams or less of marijuana (Health & Saf. Code, § 11357, subd. (b)), the lesser included offense of possession of marijuana for sale (Health & Saf. Code, § 11359) as charged in count 2. The trial court found true that defendant had served a prior prison term. (Pen. Code, § 667.5, subd. (b).) Defendant was sentenced to a total term of three years in state prison.

All future statutory references are to the Penal Code unless otherwise stated.

         On appeal, defendant contends (1) the trial court erred in denying his suppression motion; (2) there was insufficient evidence to sustain his conviction for count 1; and (3) the matter must be remanded for resentencing, as the record is unclear whether the court intended to impose the one-year prior prison term enhancement. We find that the abstract of judgment should be amended to reflect the court’s oral pronouncement of judgment. We reject defendant’s remaining contentions, however, and affirm the judgment.



         In brief, on December 11, 2006, while on foot patrol, San Bernardino Police Department Sergeant Gary Schuelke suspected defendant of dealing drugs and approached defendant to speak with him. Defendant complied. During a consent search, certain items indicative of drug sales were found on defendant’s person, and a bag of marijuana was found in defendant’s car. Subsequently, a search of defendant’s apartment revealed a loaded semiautomatic gun in defendant’s bedroom closet. A more thorough rendition of the facts will be recounted as it relates to the issues.



         A. Motion to Suppress Evidence

         Defendant contends that the gun seized at the apartment should have been suppressed under the fruit of the poisonous tree doctrine because the police lacked reasonable cause to detain him at apartment No. 7, and thus any subsequent consent to search was illegal. We disagree.

         1. Additional factual and procedural background

         Before trial, defendant filed a motion to suppress any evidence found on his person, or in the vehicle, on December 11, 2006. The People filed an opposition to that motion, arguing, among other things, that the contact between Sergeant Schuelke and defendant was consensual and that defendant consented to the search of his person and car.

         An evidentiary hearing on the motion was held on July 9, 2007. At that hearing, Sergeant Schuelke, Officer Shank, and defendant testified. Sergeant Schuelke testified that on December 11, 2006, he was assigned as a supervisor for the San Bernardino Police Department’s Crime Impact Team, whose purpose was to patrol areas of the city plagued with drugs and gang activity. On the day in question, Sergeant Schuelke, who was armed and wearing distinctive police attire, was on foot patrol at an apartment complex located as 1441 North Sepulveda Avenue in the City of San Bernardino along with Officers Shank and Gonzalez, who were also armed and wearing distinctive police attire. The officers had information that the apartment complex had been plagued with drug dealing, particularly from apartment No. 7. While Sergeant Schuelke watched apartment No. 7, he directed Officers Shank and Gonzalez to stand one street over by a fence separating the apartment complex and the backyards of houses on that street, because the fence had a hole in it that suspected drug dealers would run through.

         Around 2:00 p.m. that day, Sergeant Schuelke saw defendant standing in front of the laundry room directly outside of apartment No. 7. Defendant appeared to notice Sergeant Schuelke and immediately turned and quickly walked into apartment No. 7. Sergeant Schuelke opined defendant’s actions were significant because, in Sergeant Schuelke’s experience, the laundry room is where many of the drug dealers congregate to get a view of who is approaching and because defendant went into apartment No. 7, which was known to be involved with drug dealings.

         Sergeant Schuelke approached apartment No. 7 and saw defendant and the woman who lived in the apartment standing inside. Sergeant Schuelke asked the woman for permission to enter the apartment, and she gave permission. Sergeant Schuelke entered the apartment and asked defendant if he could talk to him for a minute. Defendant replied, “‘Yeah. What’s going on?’” Sergeant Schuelke asked defendant his name and date of birth, and defendant gave that information to the sergeant. He also asked defendant if he had been arrested or convicted of any drug charges; defendant said he had not but had gone to prison for an assault. Defendant was very cooperative.

         Sergeant Schuelke asked defendant if he had any drugs or weapons in his possession. Defendant responded in the negative, raising his hands and saying, “You can search me if you want.” After Sergeant Schuelke confirmed with defendant that he could search him, Sergeant Schuelke searched defendant. At some point during the initial conversation, Sergeant Schuelke, who was alone, radioed Officers Shank and Gonzalez and told them he was in apartment No. 7. Sergeant Schuelke searched defendant and found a cellular telephone, keys, and $490 in currency of various denominations, the majority of which were $20 bills. Sergeant Schuelke explained to defendant that he had contacted him because it appeared to Sergeant Schuelke that defendant had tried to avoid contact with him by walking into the apartment. Defendant responded he had just pulled up in his car; he directed Sergeant Schuelke to the carport area, where defendant said it was parked. Sergeant Schuelke then radioed headquarters and requested a criminal history check be done of defendant’s arrest record. Within 30 seconds to a minute, Sergeant Schuelke discovered that defendant in fact had been arrested numerous times for narcotics-related charges, including transportation of cocaine. Sergeant Schuelke believed defendant was involved in drug trafficking based on defendant’s criminal record, the fact that defendant had lied about his criminal record, and the items found on defendant’s person.

         Sergeant Schuelke asked defendant if he could search the car. Defendant replied, “No problem. Go ahead and search it.” Officers Shank and Gonzalez arrived at apartment No. 7 about this time. Sergeant Schuelke told Officer Shank to search defendant’s car. While Sergeant Schuelke and Officer Gonzalez stayed in the apartment with defendant and the woman, Officer Shank went to search defendant’s car. Officer Shank used the keys Sergeant Schuelke had found on defendant to open the car. When Officer Shank opened the door, he smelled the odor of marijuana coming from inside the car. Officer Shank searched the car, including the seats, glove compartment, and trunk, but did not find any contraband. Officer Shank informed Sergeant Schuelke that he could not find any contraband despite the smell of marijuana. While Officer Gonzalez stayed inside the apartment with defendant and the woman, Officer Shank returned to the car with Sergeant Schuelke to search the car again. Defendant was not handcuffed or restrained in any way.

         Officer Shank opened the driver’s side door and Sergeant Schuelke opened the passenger side door, and they both smelled the strong odor of marijuana. Following a thorough search of the car by both Sergeant Schuelke and Officer Shank, Sergeant Schuelke found baggies containing marijuana weighing around 28 grams in the disassembled center console of the car. Sergeant Schuelke returned to the apartment and told defendant he was under arrest for possession of marijuana for sale. Defendant responded, “For that little bit of weed?” Sergeant Schuelke asked defendant where he lived. Defendant told Sergeant Schuelke he lived at 1447 East Pumalo Street, Apartment No. 6, and gave permission to search it. Sergeant Schuelke went to that apartment and discovered defendant did not live there.

         Sergeant Schuelke went to the police department where defendant had been transported, confronted defendant about lying, and asked defendant again for his home address. Defendant told Sergeant Schuelke that he lived at 145 East 44th Street, Apartment No. 212, and gave his consent to search that residence. Sergeant Schuelke searched that apartment and found a gun in the bedroom. Sergeant Schuelke conveyed to Officer Shank that defendant might be charged with being a felon in possession of a firearm. When Officer Shank conveyed that information to defendant, who was sitting in a patrol car at the police station with Officer Shank, defendant said the gun was not his but his brother-in-law’s and that he had told his brother-in-law to remove the gun.

         Defendant testified that he did not give any officer of the San Bernardino Police Department permission to search his person, vehicle, or residence on December 11, 2006. On cross-examination, defendant stated that he was not living at 145 East 44th Street, Apartment 212, on December 11, 2006. He claimed that he had lived at that address until the end of October 2006 and that mail he had there was old mail he had to pick up.

         Following the conclusion of testimony, defense counsel argued that defendant walking away from Sergeant Schuelke and being in a high crime area was not a justifiable reason to detain him. Defense counsel also argued that defendant had been detained in the apartment when he was searched, particularly in light of there being three officers; that there was no probable cause to continue detaining defendant after a search of his person only turned up $490 and a cellular telephone; and that the car was searched without consent or probable cause. The prosecutor responded that Sergeant Schuelke had a consensual encounter with defendant and that defendant consented to the search of the car.

         The trial court found that (1) Sergeant Schuelke’s initial contact with defendant was consensual and not a detention; (2) defendant consented to the search of his person; (3) there was no detention even after Sergeant Schuelke searched defendant’s person, and even if defendant was detained, there was reasonable grounds for that detention and the detention was not prolonged; and (4) defendant consented to the search of the car. In regard to the search of the apartment, the court found defendant had no standing to contest the search. Based on those findings, the court denied defendant’s suppression motion.

         2. Analysis

         Defendant argues that the trial court erred in denying his suppression motion, claiming he was unlawfully detained and that the police obtained his consent to search the car following an unlawful detention. He further argues that the search of the car was done without probable cause and exceeded the scope of his consent and that, although he gave consent to search the apartment, the evidence found in the apartment was tainted under “the fruit of the poisonous tree” doctrine despite the fact he did not have standing to challenge that search.

         In reviewing the denial of a suppression motion pursuant to section 1538.5, we evaluate the trial court’s express or implied factual findings to determine whether they are supported by substantial evidence but exercise our independent judgment to determine whether, on the facts found, defendant’s Fourth Amendment rights have been violated. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Williams (1988) 45 Cal.3d 1268, 1301.)

         There are essentially three categories or levels of police “contacts” or “interactions” for purposes of Fourth Amendment analysis: consensual encounters, detentions, and seizures, which include formal arrests and restraints on an individual’s liberty, comparable to an arrest. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.)

         Our present inquiry concerns the distinction between consensual encounters and detentions. Not every encounter an individual has with law enforcement triggers Fourth Amendment scrutiny. (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.) Consensual encounters do not trigger Fourth Amendment scrutiny. (Florida v. Bostick (1991) 501 U.S. 429, 434 (Bostick).) Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. (Wilson v. Superior Court, supra, 34 Cal.3d at p. 784.) The United States Supreme Court has made it clear that a detention does not occur simply because a police officer asks an individual a few questions. (Bostick, at p. 434.) As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual, and no reasonable suspicion is required on the part of the officer. (California v. Hodari D. (1991) 499 U.S. 621, 628.) Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty does a seizure occur. (Bostick, at p. 434.) Thus, Fourth Amendment scrutiny will not be triggered unless the encounter loses its consensual nature. (Ibid.)

         There is no bright-line rule to determine if an encounter is consensual. (Ohio v. Robinette (1996) 519 U.S. 33, 39.) “[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” (Bostick, supra, 501 U.S. at p. 439.) Whether or not a person would have believed that he or she was free to leave is to be evaluated in light of the totality of the circumstances, rather than emphasizing particular details of that conduct in isolation. (Michigan v. Chesternut (1988) 486 U.S. 567, 573.) Factors that might indicate an unlawful detention has taken place include: (1) the presence of several police officers; (2) an officer’s display of a weapon; (3) some physical touching of the person; or (4) the use of language or a tone of voice indicating that compliance with the officer’s request might be compelled. (United States v. Mendenhall (1980) 446 U.S. 544, 554 (Mendenhall); In re Manuel G. (1997) 16 Cal.4th 805, 821.) “The officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.]” (In re Manuel G., at p. 821; see also Mendenhall, at p. 554.)

         In Mendenhall, two Drug Enforcement Administration (DEA) agents were stationed at the Detroit Metropolitan Airport for the purpose of detecting narcotics smuggling. The agents observed the defendant walking through the airport and concluded that her conduct was consistent with that of persons who unlawfully smuggle narcotics. The agents approached the defendant and asked to see her driver’s license and airline ticket. After discovering that the ticket and driver’s license contained two entirely different names, the agents asked further questions and identified themselves as DEA agents. (Mendenhall, supra, 446 U.S. at pp. 547-548.)

         The United States Supreme Court found that no seizure of the defendant occurred. “The events took place in the public concourse. The agents . . . requested, but did not demand to see the respondent’s identification and ticket. Such conduct[,] without more, did not amount to an intrusion upon any constitutionally protected interest. The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official. . . . In short, nothing in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way . . . .” (Mendenhall, supra, 446 U.S. at p. 555.)

         Applying the foregoing principles, we conclude the trial court properly denied defendant’s suppression motion because the contact between Sergeant Schuelke and defendant was a consensual encounter. Here, Sergeant Schuelke was on foot patrol in an area plagued with drugs and gang activity in distinctive police attire when he saw defendant in the laundry room located immediately in front of apartment No, 7, which was known to be involved in drug trafficking. When defendant saw Sergeant Schuelke, he immediately turned and quickly entered apartment No. 7. This caused Sergeant Schuelke to be suspicious. Sergeant Schuelke then approached apartment No. 7 and asked the woman who lived there for permission to enter the apartment. The woman gave her permission and Sergeant Schuelke entered the apartment. Once inside, Sergeant Schuelke asked defendant if he could speak with him for a minute. Defendant replied, “Yeah. What’s going on?” Sergeant Schuelke then asked defendant his name, date of birth, whether he had any drugs or weapons in his possession, and whether he had been convicted of any narcotics-related crimes. Defendant was very cooperative and voluntarily responded to Sergeant Schuelke’s questions and, in fact, informed the sergeant he could search him if he wanted to. After Sergeant Schuelke confirmed with defendant that he could search him, Sergeant Schuelke searched defendant. At that point, only Sergeant Schuelke was present with defendant. Officers Shank and Gonzalez were later directed to come to apartment No. 7. Sergeant Schuelke did not draw his gun or use force or threats. Defendant was not directed to a different location. The tone of the encounter was conversational, not accusatory. Sergeant Schuelke did not exhibit any physical or verbal force, which would cause a reasonable person to feel that he or she was not free to leave. The encounter was not converted into a detention requiring Fourth Amendment scrutiny merely because Sergeant Schuelke asked defendant a few questions. (See Bostick, supra, 501 U.S. at p. 434; Florida v. Royer (1983) 460 U.S. 491, 497-498; People v. Hughes (2002) 27 Cal.4th 287, 328.)

         People v. Lopez (1989) 212 Cal.App.3d 289 is illustrative. In Lopez, the court found no detention when officers, who were concededly on the prowl for narcotics dealers, recognized the defendant from a previous encounter. The officers “stood on either side of him and launched into a short, albeit somewhat accusatory, interrogation.” (Id. at p. 293.) The officers asked the defendant whether the car he was sitting on belonged to him. (Id. at p. 291.) When he said no, the officers asked why he was sitting on that car. The defendant responded that he was waiting for his friends to play pool. When the officers asked where his pool stick was, the defendant did not reply. The officers asked whether the defendant had identification and he reached into his pocket. The defendant handed the officer his wallet, and when it was opened, a bindle of cocaine “‘pop[ped] up.’” (Ibid.) Finding the questions were “brief, flip, and, most importantly, did not concern criminal activity,” the reviewing court concluded the questions were not so accusatory as to demonstrate that a reasonable person would believe he was not free to leave. (Id. at p. 293.)

         Similarly, in this case, defendant voluntarily responded to the police when he answered questions and consented to the search. Therefore, the nature of the contact between defendant and Sergeant Schuelke was consensual and did not constitute a detention requiring reasonable suspicion.

         Based on our independent review of the circumstances as a whole, we conclude that defendant’s initial encounter with Sergeant Schuelke was consensual. The trial court properly denied defendant’s motion to suppress the physical evidence obtained as a result of this encounter.

         Assuming arguendo that the encounter between defendant and Sergeant Schuelke amounted to a detention, the detention was reasonable.

         For this analysis, we must first determine whether the officers had a reasonable suspicion that defendant was involved in criminal activity sufficient to support the detention. (See People v. Harris (1975) 15 Cal.3d 384; People v. Gatch (1976) 56 Cal.App.3d 505, 508-509.) A reasonable suspicion of involvement in criminal activity will justify a temporary stop and detention even though the circumstances are also consistent with lawful activity. Typically, the purpose of the detention is to resolve the ambiguity. (People v. Souza (1994) 9 Cal.4th 224, 233; In re Tony C. (1978) 21 Cal.3d 888, 893-894, superseded by statute on another ground as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733; U.S. v. Arvizu (2002) 534 U.S. 266, 274-276; U.S. v. Sokolow (1989) 490 U.S. 1, 7-8.) Even if individual factors are susceptible to innocent explanation, and some factors are more probative than others, taken together, they may suffice to form a particularized and objective basis for an investigatory stop. (Souza, at p. 233; Arvizu, at p. 277.)

         “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.” (In re Tony C., supra, 21 Cal.3d at p. 892, citing Terry v. Ohio, supra, 392 U.S. at p. 22.) However, the police are not free to detain citizens at will. “In order to justify an investigative stop or detention, ‘the circumstances known or apparent to the officer must include specific or 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 . . . to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch, is unlawful, even though the officer may be acting in complete good faith.’ [Citation.]” (In re James D. (1987) 43 Cal.3d 903, 919-920, quoting In re Tony C., at p. 893; see also People v. Renteria (1992) 2 Cal.App.4th 440, 443; People v. Souza, supra, 9 Cal.4th at p. 231 [“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”].)

         The reputation of an area for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment. (Illinois v. Wardlaw (2000) 528 U.S. 119, 124; People v. Souza, supra, 9 Cal.4th at pp. 240-241; People v. Nonnette (1990) 221 Cal.App.3d 659, 668.) Presence in a high crime area combined with unprovoked flight or “nervous, evasive behavior,” may support a reasonable suspicion of criminal activity. (Wardlaw, at p. 124.)

         Here, the officers’ actions were reasonable, and the totality of the circumstances, as set forth in detail, ante, warranted the detention of defendant. All of the observations, when considered together, provided reasonable suspicion for the officers to believe that some criminal activity was about to occur or had already occurred. Therefore, the facts in this case support the trial court’s finding that the officers had “reasonable grounds” for the detention.

         Based on the above, we find that the trial court properly denied defendant’s motion to suppress.

         Defendant argues that if the detention is found to be lawful, then the search of his vehicle exceeded the scope of the given consent. However, once Officer Shank smelled a strong odor of marijuana emitting from the vehicle, the scope of defendant’s consent became irrelevant. “Hornbook law states that the Fourth Amendment to the United States Constitution permits the warrantless search of an automobile with probable cause. [Citations.] The scope of such a warrantless search is defined by the nature of the items being sought: ‘If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.’ [Citation.]” (People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059.) Sergeant Schuelke and Officer Shank testified that they smelled a strong odor of marijuana coming from the vehicle. At that point, the officers no longer needed defendant’s consent to search the vehicle; they had probable cause. (See id. at p. 1052; see also People v. Benjamin (1999) 77 Cal.App.4th 264, 273.)

         Defendant relies on the case of People v. Cantor (2007) 149 Cal.App.4th 961 (Cantor) to support his view that Sergeant Schuelke’s search exceeded the scope of his consent. In Cantor, the officer attempted to stop a vehicle after the driver had committed several traffic violations. Once the vehicle yielded, the officer asked the driver, Cantor, to exit. The officer detected the odor of marijuana, and he asked Cantor if he had been smoking some “weed.” After Cantor denied doing so, the officer asked if he could search Cantor’s car “real quick.” Cantor agreed. (Id. at pp. 963-964.) The officer took Cantor’s keys, opened the trunk, looked through it, and closed it. After thoroughly searching the engine compartment and the interior of the vehicle several times, he told Cantor that he was going to get a drug-sniffing dog. Cantor did not object. While going through the trunk again, the officer found a wooden box. Cantor said that it was a record-cleaning machine. After inspecting the box and seeing a bag inside through a mesh screen, the officer opened the back panel of the box with a screwdriver. Inside the bag, he found narcotics. (Id. at p. 964.)

         The appellate court reversed the trial court’s denial of Cantor’s suppression motion. The panel noted that the officer had received permission to conduct a “real quick” search of the vehicle. After thoroughly searching for 15 minutes, the officer had not found anything incriminating. The court determined: “At that point, if not sooner, the search should have ceased. A typically reasonable person would not have understood defendant’s consent to a ‘real quick’ search to extend beyond that point, much less to include authorization to unscrew the panel of a piece of equipment during a second search of the trunk while awaiting the arrival of a drug-sniffing dog.” (Cantor, supra, 149 Cal.App.4th at p. 965.) The court reasoned further that “[e]ven if the length of the search were not an issue, no typically reasonable person would have understood defendant’s consent to extend to unscrewing the back panel of the record-cleaning machine.” (Id. at p. 966.) The court relied on a case, State v. Wells (Fla. 1989) 539 So.2d 464, 467, a case relied on by defendant here as well, where the Florida Supreme Court held that consent to search a trunk did not give the officer authorization to break open a locked briefcase located in the trunk. The Cantor court analogized the record-cleaning machine box to locked luggage and concluded that Cantor had manifested a greater expectation of privacy by placing the contraband inside of the box and securing it with screws. Thus, general consent to search did not extend to the box. (Cantor, at p. 967.)

         The People cite People v. Crenshaw (1992) 9 Cal.App.4th 1403 (Crenshaw) to bolster their argument that Sergeant Schuelke’s search was within the scope of defendant’s consent. In that case, the officer stopped Crenshaw for a traffic violation. The officer asked Crenshaw if he “‘had any drugs in the vehicle,’” and whether he could search the vehicle “‘for drugs.’” (Id. at p. 1407.) After receiving permission to search the vehicle, the officer walked to the car while Crenshaw opened the door to retrieve the keys to the trunk. The officer noticed that the vent to the door post was secured with a screw that appeared to have been tampered with recently. Using a screwdriver, the officer removed the screw from the door vent. Inside the post, previously covered by the vent, the officer found a weapon and drugs. (Id. at pp. 1407-1408.)

         The court noted that Crenshaw had been told that the officer wanted to search for drugs. It concluded that Crenshaw’s consent should extend to any location within the vehicle that might reasonably hold narcotic contraband, and held that the door panel was the type of location an experienced officer would search to find drugs. (Crenshaw, supra, 9 Cal.App.4th p. 1415.) The court relied on Florida v. Jimeno (1991) 500 U.S. 248, a case where the driver of a vehicle gave an officer permission to search it for drugs and did not place any explicit limitation on the scope of the search. The Supreme Court concluded: “We think that it was objectively reasonable for the police to conclude that the general consent to search respondent’s car included consent to search containers within that car which might bear drugs.” (Id. at p. 251.) The court upheld the search of a paper bag that was on the car’s floor.

         The Crenshaw court concluded that the officer’s removal of the door vent did not cause the search to be beyond the scope of the consent to search the vehicle. The court noted the ease with which the officer was able to remove the door vent. It distinguished Crenshaw’s case from Wells. “The officer did not rip the vent from the door; he merely loosened a screw with a screwdriver and removed it.” (Crenshaw, supra, 9 Cal.App.4th at p. 1415.)

         Our case does not fit squarely into either the Cantor or Crenshaw scenario. Here, Sergeant Schuelke did not tell defendant that he wanted to search for drugs. He obtained a general release to search the vehicle. Defendant did not attempt to limit the scope of the search in any way. However, after Officer Shank smelled the odor of marijuana coming from the vehicle, it is likely he relayed this information to Sergeant Schuelke, and Sergeant Schuelke searched the vehicle for drugs. In addition, it is likely defendant knew Sergeant Schuelke would be searching the car for drugs as Sergeant Schuelke had asked defendant if he had any drugs or weapons or if he had been convicted of narcotics-related offenses. The record is silent on the questions of how long or how thoroughly Sergeant Schuelke searched the vehicle before locating the loose center console panel. Contrary to defendant’s assertion, the space under the center console of the car is not “reasonably analogous to a locked or sealed container.” Rather, it is reasonable to assume the console would be searched as it is within the passenger compartment of the car.

         We find Cantor distinguishable. Sergeant Schuelke did not tell defendant that he merely wanted to conduct a “real quick” search of his vehicle. There was no evidence that Sergeant Schuelke unsuccessfully searched the entire vehicle before returning to the console to take a second or third look, albeit Officer Shank’s initial search of the vehicle did not produce any contraband. In addition, as noted above, the detention was not impermissibly prolonged. The most salient difference is that Sergeant Schuelke did not open a closed and secured container.

         Defendant makes the broad statement that “[t]his was an integral part of the vehicle not designed for removal.” We disagree. We believe a reasonable person, knowing that an officer is looking for illegal contraband, would expect that the officer would examine an area of a vehicle that, although generally secured, is altered to allow easy access. Indeed, no reasonable person would expect a searching officer not to examine an obviously tampered-with part of a vehicle. As the Supreme Court noted, “Contraband goods rarely are strewn across the trunk or floor of a car.” (United States v. Ross (1982) 456 U.S. 798, 820.) In our case, Sergeant Schuelke would have been remiss if he had not scrutinized the console panel after he discovered it was altered or loose. The search of the vehicle was within the scope of defendant’s consent. (Crenshaw, supra, 9 Cal.App.4th at p. 1408.)

         B. Sufficiency of the Evidence

         Defendant argues there was insufficient evidence to support the jury’s verdict that he possessed the gun found in the bedroom closet of the apartment the police searched. We disagree.

         1. Additional factual background

         After defendant was arrested for the marijuana found in his car, Sergeant Schuelke asked defendant for his address. Defendant initially gave an incorrect address. Once defendant gave his correct home address (145 East 44th Street), the officers went to defendant’s apartment and opened the apartment door with a key from defendant’s key ring. No one was in the apartment but it appeared to be occupied by a male and a female. On the kitchen counter of the apartment, Sergeant Schuelke found a telephone bill dated November 10, 2006, with that apartment’s address and defendant’s name on it. Sergeant Schuelke also discovered two pieces of mail addressed to defendant at that apartment address from the Veteran’s Affairs postmarked November 20 and 21, 2006, in a nightstand in the bedroom, as well as two scales and a large quantity of Ziploc baggies. Inside the bedroom, Sergeant Schuelke observed male clothing and found, on a shelf on top of a shoe box, a loaded .38-caliber semiautomatic gun. No fingerprints were found on the gun.

         When defendant, who stipulated he was a convicted felon, was informed that he would be arrested for possession of the gun, defendant stated the gun belonged to his brother-in-law. Defendant explained that his brother-in-law had dropped the gun off two or three days earlier at the apartment and that he told his brother-in-law to take the gun out of the apartment. Defendant admitted that he had been living at the apartment but had been gone for a couple of days.

         Defendant’s ex-girlfriend Janice Winn testified that she lived at the apartment with defendant but that when they broke up in October 2006, she had thrown defendant out. She claimed that in December 2006 she was living at the apartment with a new boyfriend and believed the handgun belonged to her new boyfriend. She stated that she had changed the locks on the apartment and that defendant never came back to the apartment, but that she had some bills in defendant’s name and that his mail continued to come to the apartment address. She did not give defendant his mail but saved it in a drawer. She denied the gun found in the closet belonged to her or knowing it was there. She also denied ever seeing defendant with a gun. She admitted that defendant still had a key to the apartment.

         Defendant’s cousin’s wife testified that in October 2006, defendant lived at 895 Riverwalk Drive in San Bernardino with her, her husband, and her four children until January 2007. She also stated that defendant had moved his clothes and personal belongings to the residence but did not receive mail there.

         2. Analysis

         Our review of any claim of insufficiency of the evidence is limited. It is well settled that when a defendant challenges the sufficiency of the evidence, the reviewing court must examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which the jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) Substantial evidence—evidence that is reasonable, credible and of solid value—must support each essential element of an offense. (Ibid.) A judgment of conviction will not be set aside for insufficiency of the evidence to support the jury’s verdict unless it is clearly shown there is no basis on which the evidence can support the jury’s conclusion. (Ibid.; see also People v. Rodriguez (1999) 20 Cal.4th 1, 11) If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 326; People v. Davis (1995) 10 Cal.4th 463, 509.)

         In determining whether substantial evidence exists, we do not reweigh the evidence, resolve conflicts in the evidence or reevaluate the credibility of witnesses. (People v. Jones (1990) 51 Cal.3d 294, 314; see also People v. Hale (1999) 75 Cal.App.4th 94, 105; People v. Cortes (1999) 71 Cal.App.4th 62, 71.) “Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’” (People v. Bean (1988) 46 Cal.3d 919, 932-933.) In other words, “[r]esolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witness’s testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.) The standard of review applies even “when the conviction rests primarily on circumstantial evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

         Defendant was convicted of possession of a firearm by a felon pursuant to section 12021, subdivision (a)(1). A conviction of possession of a firearm by a felon requires that he knowingly own, possess, or have custody or control of a firearm. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) Such control need not be exclusive to the defendant. (People v. Neese (1969) 272 Cal.App.2d 235, 245.) Knowledge is also an element of the offense. (Jeffers, at p. 922.)

Defendant does not dispute on appeal that he had knowledge of the gun.

         Section 12021 does not require any specific criminal intent; general intent to commit the proscribed act, as set forth in CALJIC No. 3.30, is sufficient. (People v. Spirlin (2000) 81 Cal.App.4th 119, 130; People v. Jeffers, supra, 41 Cal.App.4th at p. 922.) To prove the possession element of the offense, the prosecution must establish that the defendant had knowledge of the weapon and exercised dominion and control over it, however briefly. (People v. Peña (1999) 74 Cal.App.4th 1078, 1083.) While possession may be actual or constructive, such possession must also be knowing and intentional. (Spirlin, at p. 130; Jeffers, at p. 922.)

         “A defendant has actual possession when the weapon is in his immediate possession or control. He has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others.” (People v. Peña, supra, 74 Cal.App.4th at pp. 1083-1084; People v. Jeffers, supra, 41 Cal.App.4th at pp. 923-925.) Exclusive possession of the item or the place where it is found is not necessary to show dominion and control. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Dominion and control may be shown by circumstantial evidence and any reasonable inferences to be drawn therefrom. (Id. at pp. 621-622.)

         Here, there was substantial evidence in which a reasonable jury could conclude that defendant constructively possessed the gun. After defendant’s arrest and after he initially deceived the police about his residence, defendant stated that he lived at 145 East 44th Street, Apartment No. 212. Defendant did not state that he lived at 895 Riverwalk Drive as testified to by a defense witness. When the police went to 145 East 44th Street, Apartment No. 212 to conduct a consent search, the police found male clothes in the apartment bedroom closet where the gun was found. In addition, three pieces of mail less than a month old addressed to defendant with that apartment address were found in the apartment in the same bedroom as the gun. Another piece of mail addressed to defendant with that apartment address which was about one month old was also found in the kitchen of the apartment. Documents bearing defendant’s name in a room where the gun was found constitutes circumstantial evidence of dominion and control. (See, e.g., People v. Rushing, supra, 209 Cal.App.3d at pp. 620-622.) Moreover, defendant still had a key to the apartment in December 2006, and he had admitted to Officer Shank after the gun was discovered that he had lived at that apartment but was gone for a couple of days. Defendant’s arguments to the contrary were credibility issues for the jury to resolve. (People v. Young, supra, 34 Cal.4th at p. 1181.) The jury could reasonably infer from this evidence that defendant knew of the gun’s presence and constructively possessed the gun.

         Defendant relies on People v. Stanford (1959) 176 Cal.App.2d 388, People v. Hancock (1957) 156 Cal.App.2d 305, People v. Tabizon (1958) 166 Cal.App.2d 271, and People v. Fernandez (1959) 172 Cal.App.2d 747, but those cases are distinguishable.

         The defendant in Stanford “neither made any statement nor performed any act from which the court could draw inferences adverse to him.” (People v. Stanford, supra, 176 Cal.App.2d at p. 391.) As we have explained, that is not the case here.

         The defendant in Hancock was in a hotel room with his codefendant when a police officer knocked on the door. When the officer identified himself, a package containing bindles of heroin was thrown out of the room’s window. The room was registered to the codefendant, the codefendant threw the package out of the window, and the defendant was approaching the door to open it when the package was thrown. (People v. Hancock, supra, 156 Cal.App.2d at pp. 307, 310, 312.) Aside from the defendant’s presence in the room, the only evidence that might have supported a finding that he jointly possessed the heroin was that he was an addict and had changed his story about seeing something thrown out of the window. (Id. at pp. 309-310.) That evidence was insufficient to support the defendant’s conviction. “It may be,” the court concluded, “that [the defendant] went to the [codefendant’s] room to purchase heroin, but to hold that he had any dominion or control over the package which the evidence indicates [the codefendant] threw out the window could only be based upon surmise and conjecture.” (Id. at p. 310.) The facts of Hancock are not analogous to those here. Here, the gun was in the apartment in which defendant claimed to be residing, and four recent pieces of mail addressed to defendant at that address were found in that apartment; in Hancock, the drugs were in someone else’s hotel room.

         In People v. Tabizon, supra, 166 Cal.App.2d 271, the court reversed the defendant’s conviction for possession of heroin because the evidence showed only that he had been a transient visitor to a motel room, where his codefendant sold heroin without his knowledge. (Id. at pp. 272-273.) Here, circumstantial evidence established that defendant had more than a transitory and unwitting connection with the apartment, and the gun found in the bedroom closet of the apartment.

         This case is also unlike People v. Fernandez, supra, 172 Cal.App.2d 747, where any large number of customers could have had access to a cleaning facility where the drugs were found inside of a suit. There was no evidence here that a large number of individuals had access to the apartment.

         For the above reasons, defendant’s reliance on the federal cases to which he cites is also misplaced.

         When viewed in the light most favorable to the prosecution, the evidence as set out above constitutes sufficient evidence that defendant had possession of the gun. (People v. Johnson, supra, 26 Cal.3d at p. 576.)

         C. Sentencing Hearing

         The trial court sentenced defendant to two years in state prison on the possession of firearm charge, plus an additional one year for the prior prison term enhancement, for a total of three years in state prison. The court’s minute order of the sentencing hearing and the abstract of judgment incorrectly state that defendant received a total of two years in state prison because the prior one-year prison term was imposed concurrent to the two-year term.

Count 2 (possession of marijuana) was dismissed in the interest of justice.

         Defendant concedes that “the court may have intended” to sentence him to a consecutive term for the prison prior and requests the matter be remanded for resentencing, “as it is not clear from the record whether the trial court intended to impose the sentence for the prison prior, as reflected in the reporter’s transcript, or not impose the sentence for the prison prior as reflected in the clerk’s transcript.” However, the record is quite clear that the court intended to impose a total of three years in state prison as the reporter’s transcript illustrates. The court stated, “For the offense of [section] 12021[, subdivision] (a)(1), being a felon in possession of a firearm, the Court did and will order the defendant to serve the middle term in state prison, two years, to be enhanced for the [section] 667.5[, subdivision] (b) allegation, one-year prior prison term allegation found true by the Court. That enhancement is one year for the total state prison commitment of three years.” And when there is a discrepancy between the oral pronouncement rendering judgment—as reflected in the reporter’s transcript—and the minute order or the abstract of judgment contained in the clerk’s transcript, the oral pronouncement controls; courts presume any inconsistency is the result of clerical error and rely upon the oral pronouncement contained in the reporter’s transcript. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Crenshaw, supra, 9 Cal.App.4th at pp. 1415-1416.) The court’s minute order and the abstract of judgment should therefore be amended accordingly.



         The trial court is directed to modify the abstract of judgment to conform to the court’s oral pronouncement of judgment and to send the modified abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

         We concur: McKINSTER, Acting P.J., KING, J.

Summaries of

People v. Clemons

California Court of Appeals
Oct 9, 2008
E044213 (Cal. Ct. App. Oct. 9, 2008)
Case details for

People v. Clemons

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DARNELL CLEMONS…

Court:California Court of Appeals

Date published: Oct 9, 2008


E044213 (Cal. Ct. App. Oct. 9, 2008)