NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC081258)
Albert Trejo was convicted following a jury trial of one count of first degree murder and being an ex-felon in possession of a firearm. On appeal, he contends (1) there was insufficient evidence of premeditation and deliberation to support his conviction of first degree murder; (2) a police officer's testimony regarding the location of appellant's cell phone at certain relevant times should have been excluded both because the method used to analyze location was unreliable and inadmissible, and because the officer was not qualified to make such a determination; (3) the trial court improperly denied his motion to suppress evidence taken from his cell phone without a warrant; and (4) the case should be remanded to give the court the opportunity to exercise its new discretion to strike a 25-year firearm enhancement.
We shall modify the judgment to reflect a conviction for second degree murder, and shall remand the matter to the trial court for resentencing with directions to also exercise its discretion, pursuant to Penal Code section 12022.53, subdivision (h), in deciding whether to strike or dismiss the firearm enhancement. In all other respects, we shall affirm the judgment.
Appellant was charged by information with premeditated murder (Pen. Code, §§ 187, subd. (a) & 189—count 1) and being an ex-felon in possession of a firearm (§ 29800, subd. (a)(1)—count 2). It was alleged as to count 1 that appellant personally and intentionally discharged a firearm. (§ 12022.53, subd. (d).) The information further alleged seven prior convictions, including a 1994 robbery alleged to be a strike pursuant to section 1170.12, subdivision (c)(2).
All further statutory references are to the Penal Code unless otherwise indicated.
Following a jury trial, the jury convicted appellant of first degree murder, finding true the allegation that appellant had personally and intentionally discharged a firearm, and also convicted him of being an ex-felon in possession of a firearm. Following a court trial, the court struck two prior conviction allegations, but found the remaining allegations true.
On February 21, 2017, the court denied appellant's motion for a new trial and sentenced him to a total term of 80 years to life in state prison.
On March 9, 2017, appellant filed a notice of appeal.
This case arises from the shooting death of appellant's girlfriend, Cecilia Zamora.
Roberto Ramirez testified under a grant of use immunity. He had previously been convicted of misdemeanor vandalism and had a pending drug possession case. On the night of February 12, 2013, Ramirez was at the home of Roxanne Fern on Fleetwood Drive (the Fleetwood house) in San Bruno. He was with Fern and Zamora. Around 1:00 a.m. the next morning, February 13, the three of them went to Artichoke Joe's Casino in San Bruno, where they gambled for about four hours. They then went to San Francisco, where Zamora briefly went into the Sunnyside Hotel, and eventually returned to the Fleetwood house in San Bruno around 4:30 or 5:00 a.m.
Later that morning, appellant arrived at the house in Fern's rental car, a black Mazda. Appellant came into the garage carrying laundry bags that appeared to be filled with dirty laundry. He left the bags in the garage and went into the house. Over the course of the morning, Ramirez smoked marijuana with Fern and Zamora. Ramirez also played cards and worked on the Impala in the garage. At some point that morning, Ramirez saw appellant with either a .38 or .380 caliber revolver. He had not seen appellant with a gun before, but had heard that he carried one.
Fern's car an Impala, was in the garage. It was inoperable, although its engine could start.
Ramirez had a court appearance that day in South San Francisco. He was unsure of what time he was supposed to be there, so he and Fern left for court between 9:00 and 10:00 a.m. When they left in Fern's rental car, appellant and Zamora were in Fern's bedroom lying in bed; no one else was at the house.
Ramirez's court appearance was at 2:00 p.m. While he was inside the courthouse, Fern came up to him and said they had to leave because appellant and Zamora were arguing. They drove back to the Fleetwood house, parked nearby, and entered through the garage. Appellant was standing by the washing machine with his shirt off, doing laundry. Fern's Impala was in the garage and the hood was hot, which indicated it had been running. Appellant said the Impala "wouldn't start." Ramirez noticed that Zamora's backpack, sweater, and phone were in the car. Appellant told Ramirez and Fern that Zamora "had left her stuff" and "had took off mad." When Fern asked where she was, he said "[s]he got pissed off and took off down the street." Appellant also said, "we got dusted," which referred to angel dust or PCP. He said he and Zamora had smoked a "lanyo," which referred to a joint containing PCP and marijuana.
Ramirez and Fern then drove in Ramirez's van to the Sunnyside Hotel in San Francisco, the same hotel to which they had driven after leaving the casino. They went there at appellant's request; Fern went inside and returned 15 minutes later carrying a computer, a phone charger, and some keys. They then returned to the Fleetwood house where Ramirez dropped Fern off. Appellant asked if Ramirez had shorted out the Impala and said he needed it. Ramirez tried to jump start the Impala with his van before leaving. He never saw Zamora again.
Roxanne Fern also testified under a grant of use immunity and acknowledged that she had some prior convictions and was currently in custody on felony charges relating to multiple burglaries. In February 2013, she was living on Fleetwood Drive in San Bruno. She and Zamora were close friends. During 2013, she saw Zamora almost every day. She knew Ramirez through Zamora. Appellant was Zamora's boyfriend; in February 2013, they had been dating about eight months. In early 2013, Zamora stayed at the Fleetwood house about four days a week. During that period, both Fern and appellant were involved in selling drugs with Zamora.
Fern described driving Ramirez and Zamora to Artichoke Joe's Casino early on the morning of February 13, 2013, where they stayed about five hours. The three of them had used methamphetamine and smoked marijuana beforehand. After leaving the casino, they went to the Sunnyside Hotel in San Francisco because Zamora "wanted to check up on" appellant. She went inside the hotel and returned about six minutes later. Fern then drove them back to the Fleetwood house, arriving around 6:00 a.m. Fern's mother and appellant were at the house; her mother was asleep. Appellant had used Fern's rental car to get there. Fern's Impala was not working well at that time.
When they arrived at the Fleetwood house, Zamora walked straight past appellant and into Fern's bedroom, where she fell asleep. Fern, Ramirez, and appellant then used methamphetamine. That morning, Fern saw appellant with a silver revolver when he put it on the table in the garage. She had seen him with that gun about five times before and had also seen Zamora with the gun while in appellant's presence. Fern did not see appellant with dirty laundry that morning, although it was common for him to do laundry at her house.
Her exact testimony in response to when she saw the gun that morning was: "Um, when he—when the defendant—when we went back into my bedroom, all three of us, he laid out on his—actually, when we all sat at the table in my garage, he got comfortable and he laid it out right there in front of me and Roberto."
Fern's mother took Fern's son to school around 8:35 a.m. and did not return to the house. Fern and Ramirez left before noon in the rental car to get to Ramirez's court appearance in South San Francisco. Before they left, Fern saw appellant and Zamora in her bedroom. That was the last time Fern saw Zamora.
While she was waiting for Ramirez outside the courthouse, Fern received three phone calls from appellant, between approximately 3:00 and 3:15 p.m. In the first call, appellant asked where she was and she told him she was at court. In the second call, appellant asked if there was a lighter in the house and she said she did not know. In the third call, he was "weeping, crying," saying Zamora's nickname and either that " '[i]t popped off' " or "one went off." Fern was confused and asked, " 'What? Your gun?' " Appellant responded, " 'Hurry up and come back to the house. Hurry up[.]' "
Fern acknowledged she did not tell police that appellant had said this when she was first interviewed.
Fern ran into the courtroom and told Ramirez, " 'Something is going on at my house.' " They immediately drove back to the Fleetwood house, arriving less than 15 minutes after appellant's last call. They went into the house through the garage. Appellant was standing in the garage with his shirt off and a blank, spooked face. He looked stunned. The washer and dryer were running. Fern looked for Zamora, but she was not in the house. She saw a purse of Zamora's in the backseat of the Impala, in the garage. She also saw Zamora's purse, keys, and phone on the nightstand in her bedroom. It was odd for Zamora to have left those things behind.
Fern asked appellant where Zamora was and he said "they were arguing and she left mad. She left. She walked off." He said Zamora had gotten mad about a text message containing an address on Whitman Way, which showed he was going to see somebody. He said she was also angry about some needles she had seen in Fern's room. Based on the earlier phone call from appellant, as well as the facts that his gun was not "on the side of the stand" where it had been when she left for court and Zamora was not there, Fern believed Zamora had been harmed. She looked in the trunk of the Impala and the trunk of the rental car, to see if Zamora's body was there; it was not. Fern did not see any blood on her bed or anywhere else in the house.
That morning before she and Ramirez left for court, Fern had helped appellant type in the address to get directions to that location.
Fern testified that she had the keys to the Impala in her possession from February 13 to February 14, 2013.
Later that day, Fern and Ramirez went to San Francisco to see if anybody had heard anything about Zamora. Fern did go to the Sunnyside Hotel, but did not do so at appellant's request and did not retrieve anything for appellant from the hotel.
Fern let appellant use her rental car to drive back to San Francisco that same afternoon. He sent her a text that night, which said, " 'Your mom's going for cigs at the store so be careful in the car.' " She did not remember that text. Appellant also sent her a text on February 15, 2013, which said, " 'Let me finish with cleaning the house and all the loose ends of my business around here. Okay. Then I will have money for us and Rigo [appellant's brother].' " She testified that appellant owed her no more than $50 at the time. She did not know why he mentioned Rigo.
On February 14, 2013, Rita Fee, Zamora's mother, came to the Fleetwood house. Fern went with her to the Sunnyside Hotel in San Francisco to retrieve items belonging to Zamora. Appellant's brother Rigo gave them to her.
Several days later, on February 19, 2013, Fern called the San Bruno Police Department because she saw a pinkish stain on her pillow case and thought it might be blood. An officer came to the house in response to her phone call. On February 21, forensic specialists from the Sheriff's Crime Lab came to process the Fleetwood house. Fern testified that she had nothing to do with Zamora's death or the disposal of her body.
On cross-examination, Fern testified that on February 21, 2013, it became apparent to her that the police believed she and appellant were covering up Zamora's murder. On the day Zamora went missing, Fern did not notice any blood on the sheets or the walls of her room, or on any doorknobs in her house. She acknowledged that on February 13, after she returned from court, she stripped the sheets from her bed and washed them. She saw nothing on the sheets indicating that someone had been shot in the bed. She also was with appellant the entire time after she got home from court and she never saw him lifting something heavy and putting it in the trunk of the Impala or rental car. Fern acknowledged that there were occasions when Zamora would disappear for days at a time and Fern would not know where she was.
Rita Fee, Zamora's mother, testified that after she learned on February 13, 2013, that her daughter was missing, she made efforts to find Zamora and, a few days later, reported her missing to the San Francisco and San Bruno Police Departments. On February 15, Fee went to the Sunnyside Hotel to pick up Zamora's belongings, including her cell phone. She used the phone to send a text message on February 16, before turning it over to the San Bruno Police Department. As of February 13, Zamora had been dating appellant about six months. Fee saw him approximately three times during that period. On one occasion, she saw him in possession of a gun in his room at the Sunnyside Hotel. It was a silver revolver with a brown handle. In addition to using drugs, Zamora was selling drugs with appellant in 2013.
Bernadette Santiago, who was in a domestic relationship with Fee, testified that she also saw appellant with a gun on one occasion, at her home. It was a black handgun and Santiago saw him hand it to Zamora. On the afternoon of February 13, 2013, she learned that Zamora was missing when she called Zamora's cell phone and appellant answered. She, along with other friends and family members, made efforts to find Zamora, including distributing flyers in San Bruno and San Francisco. She also reported Zamora missing to the San Francisco Police Department on February 15.
Maria Santiago, Zamora's cousin, testified that she spent some time with Zamora and appellant after they began dating. She saw appellant with a gun about three times, at her house and at the Sunnyside Hotel. It was a brown and black revolver. Zamora sometimes used Santiago's phone and appellant would call or text Santiago looking for Zamora. Text messages appellant sent to her phone for Zamora included two stating, "Answer the fucking phone" and "I'm not kidding. Answer."
San Bruno Police Officer Andrew Harper testified that he went to the house on Fleetwood Drive on February 17, 2013, in response to a report of a missing person. Fern and her mother were there. The house was "[c]ompletely disheveled," with "trash everywhere, rotting food everywhere, very messy, dirty." He walked through the entire home. He did not see any blood, although he did not examine things like curtains or bedsheets closely. He returned to the house on February 18, after receiving a call about people coming to the house looking for Zamora, assaulting Fern's mother, forcing their way into the house, and engaging in a verbal altercation. Harper also returned to the house on February 19, after Fern called and said there was a pinkish stain on the corner of a pillow case, which she thought could be a mixture of saliva and blood. Although she said the pillow case had been washed, he collected it as evidence.
Dana Perez, Fern's mother, testified that about 15 people came to the Fleetwood house on the evening of February 18, 2103, forced their way inside, choked Perez, beat up a friend of Fern's, and took their cell phones. The people said they were looking for Zamora.
Sally Gustavson, a forensic specialist at the San Mateo County Forensic Lab, testified that on February 21, 2013, she and a partner processed the house on Fleetwood Drive. They were looking for items with blood on them. In the garage, they collected an electrical adapter attached to a cord and a mop with blood on them. In the kitchen, there were red-brown stains on the floor near the door into the garage and on a light switch. Multiple red-brown stains were found on the mattress in the front (i.e., Fern's) bedroom. The stains were lighter than would be expected, which could have resulted from efforts to wash them. There were also red-brown stains on the bed pillows. There was a rug on the floor in the same bedroom that also had a red-brown stain on it. On the door to a bathroom that was connected to the front bedroom, they found red-brown staining on the door handle on the bedroom side and small stains on the bottom of the door. More stains were found on two curtains in the bedroom and around a sink in a second bathroom. They also found a garbage bag in the hallway that contained bedding and a copy of Zamora's driver's license.
Criminalist Amanda Munemitsu processed Fern's rental car on March 7, 2013. She found many flakes of what appeared to be dried blood in the trunk of the car and on the seal around the trunk. Criminalist Andrea Weidemann performed DNA testing on the samples taken from the rental car and compared them to Zamora's DNA profile. The samples matched Zamora's DNA profile. Weidemann also tested three stains on a blanket recovered from the Impala. For one stain, there were two contributors and Zamora was the major contributor. The second stain matched Zamora's DNA profile. The third stain contained a mixture of at least two contributors and Zamora was included as a possible contributor to that stain. Weidemann also confirmed through testing that Zamora's DNA was present in blood stains found on the mop and the electrical adapter and cord from the garage. Her DNA was also present in the stains found on the doorknob, the mattress, the curtains, and the rug in Fern's bedroom.
Fern testified that she had last seen this blanket on her bed, which was where she normally kept it.
San Francisco Police Officer David Goff testified that he located appellant at the Desmond Hotel in San Francisco on February 26, 2013. Goff waited outside a room until appellant came out. Appellant was wearing a red Angry Birds beanie and underneath the beanie he had on a dark brown or black wig. Goff collected appellant's cell phone, which he later gave to San Bruno Police Detective James Haggarty, who was the lead detective on the case. Haggarty downloaded data from the phone. Among the data on the phone were text messages between appellant and someone named Stephany early on the morning of February 13, discussing an apparent plan for appellant to bring drugs to her at an address on Whitman Way in exchange for money.
John Tellez, who had known appellant for only a week or two and bought drugs from him, testified that in February 2013, he saw appellant on the street. Appellant was wearing a hoodie and acting paranoid and nervous. He said he had to get out of town. He also "said the police were looking for him because his girlfriend came up missing . . . ."
Janet Hoffman testified that on April 26, 2013, she and a friend were in Pacifica collecting cans to recycle. When they walked behind an apartment complex on Gateway Drive in Pacifica and opened a door to a storage locker, they saw something inside and at the top of a sloped wall; it looked "really odd." There was also a terrible smell. They realized it was a white clothes hamper or trash can. When they went up to it and reached inside, Hoffman's hands got sticky and her friend thought he felt a shoe. They decided to call the police, but then the container slipped down the slope and a body wrapped in a brown blanket fell out. Neither Hoffman nor her friend had a phone, so they went to a friend's house a short distance away and called police.
The body was later identified as that of Zamora, who had been reported missing more than two months earlier. A bag containing makeup and other items was found in a nearby dumpster. Perez, Fern's mother, who lived part time at the Fleetwood house in early 2013, testified that she recognized the laundry hamper in which Zamora's body was found as one she had previously purchased and had noticed was missing from the Fleetwood house around a week after February 13, 2013. Blood from the hamper was found to match Zamora's blood, with a 1 in 310,000 chance of a random match. Fern identified the brown blanket in which Zamora's body was wrapped as having been on her son's bed on February 13.
Forensic Pathologist Thomas Rogers testified that he performed the autopsy on Zamora on April 27, 2013. Her body was "prominently decomposed." The state of decomposition was consistent with her having died on February 13, although she also could have died earlier or later. The cause of death was a gunshot wound to the back of her head. He recovered the bullet from her head and provided it to law enforcement. Rogers noticed no other wounds on Zamora's body.
A firearms examiner determined that the bullet retrieved from Zamora's skull was consistent with having been fired from a .38 or .357 caliber gun, probably a revolver.
Alan Barbour, a forensic supervisor at a toxicology laboratory, testified that an analysis of a piece of Zamora's liver showed that she had methamphetamine and PCP in her system.
Inspector Jordan Boyd of the San Mateo County District Attorney's Office, testified as an expert in call detail record analysis and mapping. Boyd had obtained cell phone records of appellant and other witnesses in this case and had used CellHawk software to analyze and map a series of calls using the locations of cell towers in relation to certain addresses of interest in this case, including the Fleetwood house in San Bruno and the Gateway Drive apartment complex in Pacifica where Zamora's body was found. He estimated a three-quarter mile range for each tower, based on the sector on the tower used to facilitate the call. A cell phone generally uses the tower that is closest to its location, except when there are major obstructions or when an elevated tower can provide coverage beyond that available from a low-lying tower.
Boyd testified that the cell phone number associated with appellant had made calls utilizing cell towers in San Francisco between approximately 4:30 and 5:30 a.m. on February 13, 2013. At 5:34 a.m., calls from his phone used a tower in San Bruno that was very close to the Fleetwood house and between 6:46 and 7:17 a.m., four calls used a tower in the vicinity of the address on Whitman Way that Stephany had texted to appellant that morning. After 7:17 a.m., appellant's calls utilized towers providing service to the Fleetwood house. Appellant's phone called Fern's phone from the vicinity of the Fleetwood house at 2:46 p.m., 2:52 p.m., 2:53 p.m., and 2:54 p.m.
Calls from appellant's phone between 12:59 p.m. and 1:14 p.m. on February 14, 2013, indicated that the phone was moving from the area of the Fleetwood house north into San Francisco. Calls from his phone further showed that the phone was in San Francisco until about 4:15 p.m. on February 15, when the phone started using cell towers between San Francisco and Pacifica until 4:47 p.m., when it used a tower near the Gateway Drive apartment complex where Zamora's body was subsequently found. Several calls from appellant's phone shortly after 5:00 p.m. indicated the phone was moving, using cell towers near the Gateway Drive address for calls at 5:04 p.m., 5:13 p.m., and 5:24 p.m. Additional calls over the next 15 minutes indicated that appellant's phone began moving from that area back to San Francisco.
Boyd testified that the cell phone number associated with Ramirez used cell towers near Artichoke Joe's Casino at 5:40 a.m. on February 13, 2013, and a tower near the South San Francisco courthouse later that day, at 1:34 p.m. Fern's phone used cell towers near the Fleetwood house during calls at 8:30 a.m. and 8:57 a.m.; near the South San Francisco courthouse during three calls on February 13, one at 2:47 p.m. and two at 2:54 p.m.; near the Fleetwood house again during a call at 3:29 p.m.; and in San Francisco for two calls that night to or from appellant's phone number. Neither Fern's nor Ramirez's phone was anywhere near the Gateway apartment complex during the time appellant's phone showed he was in Pacifica. Finally, Zamora's phone used a cell tower near the Fleetwood house at 7:28 a.m. on February 13, 2013, and was not used again until February 16, when it used a San Francisco cell tower.
As noted, Fee, Zamora's mother, testified that she used Zamora's phone on February 16, 2103, after she had retrieved it and other items belonging to Zamora.
Roy Izaguirre, who lived and worked at the Gateway apartment complex in Pacifica, testified that 4:30 to 5:30 p.m. was typically a "busy time" around the carport area where Zamora's body was found.
San Bruno Police Corporal Mike Blundell testified that he assisted Officer Harper in the early morning search of the Fleetwood house on February 18, 2013. The house was very messy, with "a lot of stuff all over the place." Blundell did a cursory search of the front bedroom and did not recall seeing any blood or anything indicating that someone had bled in that room.
San Bruno Police Detective James Haggarty testified that he first conducted a "walk-through" of the Fleetwood house on February 20, 2013. When he returned the next day, he noticed signs of blood in the house for the first time.
Chris Cubanske, a radio frequency engineer for Sprint, testified as an expert in radio frequency engineering and mobile cell phone coverage. Cubanske had created a map of calls from Fern's and Ramirez's phones on February 13 and 14, 2013, using call detail records to identify cell phone towers that were nearby. Cubanske had listened to Boyd's testimony at a prior hearing, and had concerns about his assuming a three-quarter mile radius for cell towers. While that distance "could be accurate for a sector," it should not be used in general because "every sector has a different radius."
Cubanske explained that Sprint has proprietary information "of every parameter of that cell site," which allowed him to use a precise tool to measure each tower's radius. Boyd, as an investigator for the San Mateo County District Attorney's Office, would not have access to this information, which Cubanske believed would make Boyd's estimates less accurate.
I. Sufficiency of the Evidence of Premeditation and Deliberation
At trial, the prosecution theory was that appellant shot Zamora "execution style," before dumping her body in Pacifica. The defense theory was that it was not appellant who shot Zamora.
"When considering the claim of a criminal defendant that a verdict was not supported by sufficient evidence, 'the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Hawkins (1995) 10 Cal.4th 920, 955 (Hawkins), abrogated on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110.)
Murder is the unlawful killing of a human being with either express or implied malice. (§§ 187, subd. (a), 188.) As relevant here, first degree murder includes a killing that is "willful, deliberate, and premeditated," while "other kinds of murders are of the second degree." (§ 189.)
" ' " 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation . . . does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." [Citations.]' " ' [Citation.]
' " 'An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.' [Citation.] A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported—preexisting motive, planning activity, and manner of killing—but '[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.' " ' [Citation.]" (People v. Brady (2010) 50 Cal.4th 547, 561-562 (Brady).) These three factors, discussed in People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), are often referred to as the Anderson factors. The factors "are merely a framework for appellate review; they need not be . . . afforded special weight, nor are they exhaustive. [Citations.]" (Brady, at p. 562.)
In the present case, the evidence of appellant's mental state at the time of the shooting is circumstantial. "The use of circumstantial evidence in proving first degree murder was discussed in [Anderson, in which ] [t]he court stated: 'Given the presumption that an unjustified killing of a human being constitutes murder of the second, rather than of the first, degree, and the clear legislative intention to differentiate between first and second degree murder, [a reviewing court] must determine in any case of circumstantial evidence whether the proof is such as will furnish a reasonable foundation for an inference of premeditation and deliberation [citation] or whether it "leaves only to conjecture and surmise the conclusion that defendant either arrived at or carried out the intention to kill as the result of a concurrence of deliberation and premeditation." ' [Citation.]" (People v. Boatman (2013) 221 Cal.App.4th 1253, 1265 (Boatman), quoting Anderson, supra, 70 Cal.2d at p. 25.)
In Boatman, which we will discuss at some length due to its many striking similarities to this case, Division Two of the Fourth District Court of Appeal utilized the Anderson factors to determine there was insufficient evidence of premeditation and deliberation to uphold the defendant's first degree murder conviction. In that case, after being released from jail in the early morning, the defendant picked up his girlfriend, Rebecca Marth, and took her to his house, where several other family members were present. (Boatman, supra, 221 Cal.App.4th at p. 1258.) That same morning, someone in the room next to the defendant's heard a loud argument between a man and a woman for at least three minutes and then heard a gunshot followed by what sounded like someone " 'panicking, like yelling or screaming like out of fear.' " (Id. at pp. 1258-1259.) When police arrived at the house in response to the report of a shooting, the defendant's brother was holding Marth, who had been shot in the face, in his arms. The defendant ran outside with blood on his clothes and face and told police to call an ambulance. (Id. at p. 1258.) Inside the house, police found bloodstains on the bed and pillow in the defendant's bedroom. A trail of blood led from the bedroom to the kitchen, where an officer found a loaded black revolver on the kitchen floor. Both the floor and the revolver were wet. (Ibid.) During a search of the bedroom, officers found a box containing a semiautomatic handgun, a box of bullets, and duffel bag containing a sawed-off shotgun and a box of shotgun shells. (Ibid.) After the defendant was arrested, on the way to the police station, he was crying and asked if the officer knew if Marth was okay. (Id. at p. 1259.)
In three police interviews, the defendant gave differing versions of what had happened. At trial, he testified that he and Marth had planned to smoke some marijuana and watch a movie. He took some Xanax and Norco pills, which made him feel disoriented. (Boatman, supra, 221 Cal.App.4th at pp. 1259-1260.) While he was weighing some marijuana, Marth removed a gun from under his pillow and pointed it at him; he was not worried and slapped it away. A mosquito then landed on Marth and she started to scream. He teased her, gave her a hug and a kiss, and then went back to weighing the marijuana. (Id. at p. 1260.) As he was squatting to put the marijuana in a safe, Marth again pointed the gun at him. He took it away from her and pointed it at her. He cocked the hammer back but did not intend to threaten or shoot her; he was just "being stupid." (Ibid.) Marth then slapped the gun and he almost dropped it. When he grabbed the gun so it would not fall, it went off. (Ibid.) He immediately told his brother to call the police and tried to give Marth, who had been shot in the face, mouth-to-mouth resuscitation. The defendant and his brother then took Marth outside to the driveway to get her help. (Boatman, at p. 1261.) When the defendant went back inside the house to get his keys, he heard sirens and panicked. He grabbed the gun and rinsed it off in an effort to wash off the fingerprints. He then tossed the gun into a kitchen cabinet before running back outside, where he was met by police officers. (Ibid.)
A forensic pathologist estimated that the gun was fired approximately 12 inches from Marth's face. The trajectory was front to back, slightly left to right, and slightly downward. (Boatman, supra, 221 Cal.App.4th at p. 1261.) Marth's best friend testified that she and Marth had exchanged text messages in the hours before the shooting. Early on the morning she was shot, Marth texted that the defendant was " 'out.' " Two minutes later she texted that she already " 'wish[ed] he was locked back up. . . . [O]mg [you] have no clue.' " Two and a half hours later, Marth texted her friend, " 'Just were [sic] fighting . . . with him right now.' " (Ibid.) The jury found the defendant guilty of first degree premeditated and deliberate murder. (Id. at p. 1257.)
The appellate court analyzed the evidence from trial using the three Anderson factors. First, the court found a lack of "any planning evidence whatsoever," considering that there was no evidence the defendant left the room or house to get a gun and his behavior after the shooting—including telling his brother to call police and the fact that he could be heard crying during the 911 call—was "of someone horrified and distraught about what he had done, not someone who had just fulfilled a preconceived plan." (Boatman, supra, 221 Cal.App.4th at p. 1267.) This evidence "not only fail[ed] to support an inference of a plan to kill Marth, but strongly suggest[ed] a lack of a plan to kill." (Ibid.)
Second, the Boatman court found there was "little or no relevant motive evidence" supporting a finding of premeditation and deliberation. (Boatman, supra, 221 Cal.App.4th at p. 1267.) Even if it could be inferred from Marth's text messages to her friend and from the "loud screaming argument" overheard just before the shooting that appellant was in a bad mood or angry at Marth "and could suggest the intent to kill, it [was], at most, weak evidence of a motive suggesting premeditation and deliberation." (Id. at pp. 1267-1268.) "To the contrary, any evidence of defendant's 'bad mood' or 'anger with the victim' indicates a motive to kill based on ' "unconsidered or rash impulse hastily executed," ' not the sort of ' "preexisting reflection" ' and ' "careful thought and weighing of considerations" ' required to find premeditation and deliberation. [Citation.]" (Id. at p. 1268, quoting Anderson, supra, 70 Cal.2d at p. 27.)
Finally, as to manner of killing evidence, the defendant shot Marth in the face, which supported a finding of malice, i.e., an intent to kill. (Boatman, supra, 221 Cal.App.4th at p. 1268.) The court noted, however, that to support first degree murder, the prosecution had to also "establish that the gunshot to the face was pursuant to a ' "preconceived design" to take his victim's life . . . .' [Citation.]" (Ibid., quoting Anderson, supra, 70 Cal.2d at p. 27.) The court explained: "Even when manner of killing [evidence] is strong, cases in which findings of premeditation and deliberation are upheld typically involve planning and motive evidence as well." (Boatman, at p. 1268 [citing cases].)
The Boatman court then discussed cases that had found premeditation and deliberation even in the absence of planning or motive evidence, explaining that in such cases, " '[t]he manner of the killing clearly suggests an execution-style murder.' [Citations.]" (Boatman, supra, 221 Cal.App.4th at p. 1269, quoting Hawkins, supra, 10 Cal.4th at p. 956.) The court distinguished such cases, explaining that neither the events preceding the shooting in Boatman nor its location suggested an execution and that, "[u]nlike the shots to the head from behind in Hawkins and [People v. Bloyd (1987) 43 Cal.3d 333, 342], defendant and Marth were facing toward each other, and there is no evidence that Marth was crouching or kneeling at the time." (Boatman, at p. 1269.) In addition, the bullet missed Marth's brain and no second shot was fired. (Ibid.) Finally, the defendant's actions immediately after the shooting when he sought help were "not the actions of an executioner." (Ibid.)
The Boatman court concluded: "With no evidence of planning or motive and a killing that cannot be described as 'execution-style,' the application of the Anderson factors weighs heavily in favor of concluding there was insufficient evidence for a reasonable jury to conclude that the killing was the result of premeditation and deliberation." (Boatman, supra, 221 Cal.App.4th at pp. 1269-1270.)
In the present case, there is even less evidence than there was in Boatman concerning the circumstances of the shooting, from which appellant's mental state at the time can be inferred. Moreover, as we shall explain, this limited, mostly circumstantial evidence is far more consistent with a killing that occurred as the result of an " ' "unconsidered or rash impulse" ' " than of " ' "preexisting thought and reflection." ' " (Boatman, supra, 221 Cal.App.4th at p. 1264.)
First, as to planning, there was evidence that appellant came to the Fleetwood house with his dirty laundry and that he often did laundry there. Although Ramirez and Fern saw him with a revolver that morning, Fern and several other witnesses had previously seen him with a gun on various occasions and in a number of locations, which negates any inference that he specially armed himself before coming to the house. (See Boatman, supra, 221 Cal.App.4th at p. 1267 [no evidence the defendant had left bedroom or house to get a gun before shooting Marth].) There was also evidence that appellant had used methamphetamine that morning and that he and Zamora had smoked PCP a short time before the shooting. (See id. at pp. 1259-1260 [defendant testified that he had taken drugs that made him feel disoriented shortly before shooting].)
Also demonstrating a lack of planning was appellant's call to Fern that afternoon during which he was "weeping" and "crying." He said Zamora's nickname and then said that " '[i]t popped off' " or "one went off," and to hurry home. Fern also described appellant's face as looking blank, spooked, and stunned when she returned to the house a short time later. (See Boatman, supra, 221 Cal.App.4th at p. 1267 [defendant's response to shooting "was of someone horrified and distraught about what he had done"].) Moreover, the shooting took place while appellant was known to be alone with Zamora at a house where others, including Fern, her mother, her son, and Ramirez could be expected to return at any time. Indeed, appellant called Fern and told her to hurry home. (See ibid. [lack of planning shown by location of shooting, in a home where other people were present and could identify defendant].) Finally, appellant's sloppy cleanup of Zamora's blood after the shooting suggest panic more than a methodical plan to kill. (See id. at p. 1261 [defendant panicked after hearing sirens and rinsed gun in an effort to wash off his fingerprints].)
As in Boatman, all of this evidence "not only fail[ed] to support an inference of a plan to kill [Zamora], but strongly suggest[ed] a lack of a plan to kill." (Boatman, at p. 1267; see Brady, supra, 50 Cal.4th at pp. 561-562; Anderson, supra, 70 Cal.2d at pp. 26-27.)
Respondent asserts that "appellant's thorough cleaning of the house, his hiding of Zamora's body . . . , and the disguise he was wearing when arrested undercut any claim of an accidental or provoked shooting." This cited evidence certainly is relevant to appellant's consciousness of guilt and whether he in fact shot Zamora, but it plainly does not demonstrate planning or support a finding that when he shot her, appellant acted with premeditation and deliberation. (See Boatman, supra, 211 Cal.App.4th at p. 1261.)
Second, as to motive, there was evidence that appellant and Zamora had a volatile relationship and that Zamora was unhappy about some text messages between appellant and someone named Stephany that she had seen on appellant's phone that morning. This fact and the possibility that they were arguing shortly before the shooting is evidence showing "a motive to kill based on ' "unconsidered or rash impulse hastily executed," ' not the sort of ' "preexisting reflection" ' " necessary to support a finding of premeditation and deliberation. (Boatman, supra, 221 Cal.App.4th at p. 1268.)
Third, as to manner of killing, respondent argues that appellant committed an execution-style murder, noting that this fact alone can be enough to support a finding of premeditation and deliberation. (See, e.g., Hawkins, supra, 10 Cal.4th at p. 957 [answering in affirmative "the question whether manner-of-killing evidence which clearly indicates an execution-style murder [is] sufficient to sustain a first degree murder verdict" based on premeditation and deliberation].) As respondent puts it, "the manner of killing, the absence of struggle, and the evidence of motive," i.e., appellant and Zamora's volatile relationship and appellant's jealousy, as reflected in text messages, "support the conviction. As the prosecutor highlighted repeatedly in his closing argument, the strongest evidence of premeditation and deliberation was the execution-style shooting to the back of Zamora's head. Had appellant and Zamora been in the midst of a fight, it is highly unlikely that appellant would have been able to shoot Zamora in the back of the head without any type of defensive wounds or injuries to either party . . . ."
In support of this argument, respondent cites several cases in which evidence of an execution-style murder was found to be sufficient to support a first degree murder conviction based on premeditation and deliberation. In Hawkins, supra, 10 Cal.4th at page 956, the victim was shot twice, once in the back of his head and once in the back of his neck, from close range and with a downward trajectory suggesting the victim was kneeling or crouching when shot. There were no signs of a struggle. (Ibid.) Our Supreme Court found this evidence was sufficient to support a finding of premeditation and deliberation even though evidence of planning and motive was minimal. (Id. at pp. 956-957.) In People v. Bloyd, supra, 43 Cal.3d at page 348, the court concluded evidence of motive, together with evidence that two victims were shot in the head at close range while one victim was lying on her back and the other was kneeling, and with no evidence of a struggle, "described actions that were cold and calculated—execution-style killings," which provided strong evidence of premeditation and deliberation. (See also People v. Romero (2008) 44 Cal.4th 386, 401 [in addition to evidence of planning and motive, manner of killing was indicative of premeditation and deliberation where victim was killed by a single gunshot fired from a gun placed against his head, with no indication of a struggle]; People v. Mayfield (1997) 14 Cal.4th 668, 768 [in addition to evidence of planning activity and motive, court found that defendant's "firing of the gun at [police officer's] face is a manner of killing that was entirely consistent with a preconceived design to take his victim's life"].)
Here, although Zamora was shot in the back of the head, in the circumstances of this case, this fact alone does not "clearly indicate an execution-style murder." (Hawkins, supra, 10 Cal.4th at pp. 956, 957; see Boatman, supra, 221 Cal.App.4th at p. 1268.) When Fern and Ramirez left for court, appellant and Zamora were lying in bed in Fern's bedroom. There is no direct evidence of what happened next between them. The circumstantial evidence, including the blood found in Fern's bedroom, appellant's statement during his phone call to Fern, and his statements after Fern and Ramirez returned to the house, reasonably supports an inference that appellant and Zamora had been arguing in the bed, that appellant shot Zamora in the back of the head at some point during the argument, and that he did so with malice aforethought. (See § 187, subd. (a); Boatman, at p. 1268.) But unlike the cases cited by respondent, we conclude the circumstantial evidence regarding the manner of killing in this case did not " 'furnish a reasonable foundation for an inference of premeditation and deliberation,' " and therefore did not overcome the presumption that the killing " 'constitutes murder of the second, rather than the first, degree.' " (Boatman, at p. 1265, quoting Anderson, supra, 70 Cal.2d at p. 25.)
That no wounds signifying a struggle were apparent on Zamora's body does not change this conclusion. First, the forensic pathologist who performed the autopsy described Zamora's body as "prominently decomposed," i.e., "rotting," at the time of the autopsy some two months after her death. Given the state of Zamora's body, it is highly unlikely that any minor (or not so minor) bruising or cuts Zamora might have suffered just before she died would still be visible on her body. Second, even assuming there were no defensive injuries at all, the shot to the back of Zamora's head is not sufficient on its own to undermine the presumption that the killing was in the second degree, considering the paucity of other evidence to support that inference. (See Boatman, supra, 221 Cal.App.4th at p. 1266 [a reasonable inference " ' " ' "may not be based on suspicion alone," ' " ' " but " ' "must logically flow from other facts established in the action" ' "].)
Rather, as in Boatman, the available evidence "not only fail[ed] to support an inference of a plan to kill [Zamora], but strongly suggest[ed] a lack of a plan to kill." (Boatman, supra, 221 Cal.App.4th at p. 1267.) Likewise, as noted, the evidence that Zamora and appellant were angry with each other on the morning of the shooting "indicates a motive to kill based on ' "unconsidered or rash impulse hastily executed . . . ." ' " (Id. at p. 1268.) Thus, despite the fact that Zamora was shot in the back of the head, the evidence as a whole " ' "leaves only to conjecture and surmise the conclusion that [appellant] . . . arrived at or carried out the intention to kill as the result of a concurrence of deliberation and premeditation." ' [Citation.]" (Boatman, at p. 1265, quoting Anderson, supra, 70 Cal.2d at p. 25.)
Because the evidence is insufficient to support the jury's first degree murder verdict based on the prosecution theory of premeditation and deliberation, we will reduce appellant's conviction to second degree murder. (See Hawkins, supra, 10 Cal.4th at p. 955; Boatman, supra, 221 Cal.App.4th at pp. 1274, 1269-1270.)
II. Expert Testimony About the Location of Appellant's Cell Phone
Appellant contends Inspector Boyd's testimony regarding the location of appellant's cell phone at certain relevant times should have been excluded because (1) the method used to analyze his location based on call detail records was unreliable and inadmissible, and (2) Boyd was not qualified to make such a determination.
A. Trial Court Background
Before trial, appellant moved to exclude cell site data analysis because, inter alia, "the methodology used to analyze the general location of a cellular phone based on call detail records is unreliable; the methodology does not meet the People v. Kelly (1976) 17 Cal.3d 24 [(Kelly)] test," and "Inspector Jordan Boyd is not qualified to testify as an expert on the relationship and interaction between cell phones and cell towers and the information that can be obtained from their interaction, particularly the location of a cell phone during any given time frame. (Evid. Code, § 720.)"
At a hearing on the motion, the court heard testimony from both Boyd and a defense expert on the issue. The court then denied the motion, concluding "that radiowave technology used in cell phone communication systems is not a new scientific technique" and that Kelly therefore did not apply, and further concluding that Boyd was qualified to testify as an expert.
After trial, appellant raised the call detail records issue in a motion for a new trial. The trial court again rejected the claim, explaining that "determining the general location of a cell phone based upon which sector of a particular cell tower to which that phone's signal connected . . . cannot be considered, quote, new scientific methodology. . . . Such testimony is routinely admitted in trial courts of this state without any suggestion that the Kelly test applies."
B. Legal Analysis
1. Reliability of the Method Used to Analyze the Call Detail Records
"The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion. [Citations.]" (People v. McDowell (2012) 54 Cal.4th 395, 426.)
As noted, Boyd testified at trial that cell phone towers have an estimated range of three quarters of a mile and that cell phones generally use the tower closest to their location unless there are major obstacles between them or a more distant tower is elevated, which allows it to provide coverage beyond that available from a low-lying tower. Based on the particular tower and sector of that tower used, Boyd then used call detail records to describe the general location of several cell phones, including appellant's, at times relevant to the events in this case.
Appellant argues that Boyd's testimony was based on the "granulization theory," a new scientific theory that is insufficiently reliable, citing the federal district court opinion in United States v. Evans (N.D.Ill. 2012) 892 Fed.Supp.2d 949 (Evans). A similar claim was recently rejected by the Third District Court of Appeal in People v. Garlinger (2016) 247 Cal.App.4th 1185, 1187 (Garlinger), which held that "expert testimony explaining a cell phone signal received by a certain side of a cell tower must have come from that side of the tower and in the general vicinity of the tower does not describe a new scientific technique subject to the standard set forth by our Supreme Court in [Kelly] for admitting the results of such techniques."
The appellate court in Garlinger explained that "while cell phones are relatively new devices, the methodology is not new. Cell phones operate like 'sophisticated radios' by sending and receiving a radio signal to and from a cell tower and base station in their general vicinity. . . . There is nothing new or experimental about this technology. . . ." (Garlinger, supra, 247 Cal.App.4th at pp. 1195-1196.) The court noted that expert testimony about "the general location of a cell phone based on which sector of the particular cell tower to which that phone's signal connected . . . [¶] . . . is routinely admitted in the trial courts of this state without any suggestion the Kelly test applies. [Citations.]" (Id. at p. 1196 [citing cases].) The court further found that the expert's testimony in that case would not have carried a " 'misleading aura of scientific infallibility.' [Citation.] He did not purport to be able to determine the precise location of the phone. Nor did he testify cell phone signals always connect to the closest tower. . . ." (Id. at pp. 1196-1197.)
The court in Garlinger distinguished United States v. Evans, supra, 892 Fed.Supp.2d at pages 956-957, in which the district court had found that the so-called "granulization theory," which involved "[e]stimating the coverage area of radio frequency waves" and required "scientific calculations that take into account factors that can affect coverage," was "wholly untested by the scientific community" and had not been shown to be sufficiently reliable. (See Garlinger, supra, 247 Cal.App.4th at pp. 1197-1198.) The Garlinger court explained that, unlike in Evans, the expert in the case before it "did not purport to have estimated the coverage area of specific cell towers based on their proximity to other towers. Nor did he claim to have determined the location of defendant's cell phone based on his ability to predict overlapping coverage areas. Those were the salient aspects of granulization theory found to be lacking in reliability" in Evans. (Garlinger, at p. 1198.) The court further found that nothing in Evans cast doubt on an expert's ability to testify to the location of cell sites used by a defendant's phone at certain times "or to the relatively common sense deduction that the phone must have been in the general area of the cell tower and in the general direction of coverage." (Ibid.)
In the present case, Boyd's call detail record analysis was quite similar to the procedure described in Garlinger. He never claimed to have made his determinations based on the factors found to be lacking in reliability in Evans. (See Garlinger, supra, 247 Cal.App.4th at p. 1199.) Nor did he "purport to know the location of [appellant's] cell phone with any degree of precision." (Ibid.) Instead, he estimated the coverage range of a particular tower (three-quarters of a mile) and opined as to the general vicinity in which appellant's or other individuals' cell phones could have been located based on the sector of the particular tower used by that phone.
Even Cubanske, the defense expert, acknowledged at trial that Boyd had estimated the phone locations using call detail records.
For these reasons, we conclude the court did not err in permitting Boyd to testify about his analysis of the call detail records without first holding a Kelly hearing. (See Garlinger, supra, 247 Cal.App.4th at p. 1187.)
For the same reasons, and like the court in Garlinger, we reject appellant's argument that Boyd's testimony was inadmissible under Evidence Code section 801 because his "opinion as to the location of a cell phone based on how long the range is between a cell phone and a tower was essentially guesswork . . . ." (See Evid. Code, § 801, subd. (b) [expert's opinion testimony is limited to an opinion "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion"]; see also Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769-770 [under Evidence Code section 801, subdivision (b), " 'the matter relied on must provide a reasonable basis for the particular opinion offered, and . . . an expert opinion based on speculation or conjecture is inadmissible' "].)
Although experts could—and in this case did—disagree on Boyd's estimation of the coverage range of a particular tower, Boyd did not purport to know the exact location of the phone based on his analysis and he acknowledged that there are various exceptions to a phone making use of the nearest tower. Instead, his testimony regarding the location of certain cell phones at particular times was based on "the relatively common sense deduction that the phone must have been in the general area of the cell tower and in the general direction of coverage," and thus was not inadmissible under Evidence Code section 801, subdivision (b). (Garlinger, supra, 247 Cal.App.4th at p. 1198.)
2. Inspector Boyd's Qualifications to Testify as an Expert
"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) " 'We are required to uphold the trial judge's ruling on the question of an expert's qualifications absent an abuse of discretion. [Citation.] Such abuse of discretion will be found only where " 'the evidence shows that a witness clearly lacks qualification as an expert.' " [Citation.]' [Citation.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1062-1063.)
Here, Boyd testified that he had been an inspector with the San Mateo County District Attorney's Office for three years, and before that was a law enforcement officer in several jurisdictions beginning in 1996. Boyd had been using call detail records as an investigative tool since 2000. He had received 50 hours of training in analysis of call detail records, and had also received instruction on the subject from FBI agents. In 2006 and 2007, Boyd co-developed and was an instructor for an eight-hour course for law enforcement officers on the benefits and uses of call detail records. In 2012, he participated in a 14-hour training in cell phone investigations and advanced call detail analysis. In July 2012, he became certified using a "Cellebrite mobile device examiner." In 2014, he participated in a 4-hour course in cell site analysis. Boyd's training had included instruction on how cell phones operate with respect to cell towers and in the mapping of call detail records.
Boyd had used call detail records in over 100 investigations and had conducted call detail record analysis at least 500 times. He had testified as an expert in the field 12 times. He devoted approximately 50 percent of his time to call detail record analysis and mapping.
In light of this evidence of Boyd's training and extensive experience in conducting call detail record analysis, we conclude the court did not abuse its discretion when it found him qualified to testify as an expert in call detail record analysis and mapping. (See People v. Wallace, supra, 44 Cal.4th at pp. 1062-1063; see also Garlinger, supra, 247 Cal.App.4th at pp. 1191-1192 [in addition to periodic training, detective who testified as an expert had analyzed call detail records at least 40 times and had testified as an expert on call detail records in 4 cases].)
We also note that defense counsel was given the opportunity to cross-examine Boyd and to call a witness for the defense on this subject. In addition, the court gave CALCRIM No. 332, which told the jury, inter alia, to "consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion," as well as to "decide whether information on which the expert relied was true and accurate." The instruction also told the jury that if "the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters on which each witness relied. You may also compare the experts' qualifications." As this instruction made clear, the weight to which Boyd's testimony was entitled was ultimately a matter for the jury to determine. (See CALCRIM No. 332.) --------
III. Denial of Appellant's Motion to Suppress Evidence from His Cell Phone
Appellant contends the trial court improperly denied his motion to suppress evidence taken from his cell phone without a warrant.
A. Trial Court Background
The prosecution moved to introduce text messages between appellant and various individuals, which purportedly (1) showed "a sometime volatile relationship" between appellant and Zamora, (2) included appellant's interaction with Stephany about heroin on the morning of the shooting, and (3) would corroborate witnesses' testimony. Appellant then moved to suppress all evidence obtained pursuant to the initial search of appellant's cell phone, which took place following his arrest. The court denied appellant's motion after finding that the controlling law at the time of the search permitted police to search a cell phone incident to arrest. The court also noted that the police already had appellant's and Zamora's cell phone numbers before appellant's arrest and would have "inevitably discovered [the text message] evidence by way of a subsequent search warrant."
Appellant raised this issue again in a motion for a new trial. Following a hearing on the motion, the court denied the claim.
B. Legal Analysis
At the time of the initial search of appellant's cell phone following his arrest in 2013, the law permitted the warrantless search of a cell phone's text messages incident to a lawful arrest. (See People v. Diaz (2011) 51 Cal.4th 84, 88.) The following year, however, the United States Supreme Court held in Riley v. California (2014) 134 S.Ct. 2473 that a cell phone may only be searched pursuant to a warrant. In an abbreviated argument, appellant asserts that although the initial search of his cell phone without a warrant was lawful at that time, the evidence taken from the phone nevertheless should have been suppressed because Riley is retroactive and the good faith exception to the warrant requirement did not apply, citing People v. Macabeo (2016) 1 Cal.5th 1206, 1223-1224. Respondent in turn argues that Macabeo is distinguishable and, in any case, the inevitable discovery doctrine applies. (See People v. Robles (2000) 23 Cal.4th 789, 800-801.)
Even assuming, without deciding, that the initial search of appellant's cell phone was unlawful and the evidence obtained as a result of that search should have been suppressed, we conclude any error in admitting the text messages at trial was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see People v. Moore (2011) 51 Cal.4th 1104, 1128-1129.) Appellant does not dispute that police already had his cell phone number before his arrest and would have obtained the call detail record data to establish appellant's location at the relevant times, regardless of the initial search of the phone. The call detail record evidence demonstrated, inter alia, that on February 15, 2013, two days after Zamora's disappearance, appellant's cell phone was near the location where Zamora's body was subsequently found. Moreover, even if the text messages between appellant and Zamora were not separately admissible based on data taken from Zamora's cell phone, there was other strong evidence of conflict between appellant and Zamora, including the testimony of Zamora's cousin that appellant would frequently text and call her looking for Zamora, and appellant's own statement to Fern and Ramirez that he and Zamora had argued just before she disappeared. There was other persuasive evidence of guilt as well, including the evidence that appellant was the last known person to see Zamora alive; that he cried as he told Fern that "one went off" while he was alone at the Fleetwood home with Zamora; that he had a revolver in his possession that morning; that the bullet found in Zamora's skull was consistent with having been fired from a revolver; that the blood evidence found in the house and the two cars matched Zamora's DNA profile; that he subsequently told an acquaintance that police were looking for him because his girlfriend was missing; and that he was wearing a disguise at the time of his arrest.
In light of this extremely strong evidence of guilt presented at trial, we conclude any error in failing to suppress the contents of appellant's cell phone was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
IV. Remand for the Court to Exercise its New Discretion to Strike the
Appellant contends the case should be remanded to give the court the opportunity to exercise its new discretion to strike a 25-year firearm enhancement. Respondent agrees.
Subdivision (d) of section 12022.53 provides that a person who, in the commission of a murder, "personally and intentionally discharges a firearm and proximately causes . . . death . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." At appellant's February 21, 2017 sentencing hearing, the court imposed a consecutive term of 25 years to life, pursuant to this section. After appellant was sentenced, but while this appeal was pending, section 12022.53 was amended to add subdivision (h), which permits the court to exercise its discretion at the time of sentencing to "strike or dismiss an enhancement otherwise required to be imposed by this section." The amendment took effect on January 1, 2018. (People v. Phung (2018) 25 Cal.App.5th 741, 762-763 (Phung).)
In Phung, in which the trial court had imposed the same enhancement at issue here, the appellate court agreed with both parties that the rule of retroactivity set forth in In re Estrada (1965) 63 Cal.2d 740 applied to enhancements imposed under section 12022.53. (Phung, supra, 25 Cal.App.5th at p. 763.) The court therefore remanded the matter "to the trial court to exercise its discretion in deciding whether to strike the firearm enhancements." (Ibid.; accord, People v. Chavez (2018) 22 Cal.App.5th 663, 712 [concluding amended section 12022.53, subdivision (h) applies to all non-final judgments and remanding matter for resentencing, to allow trial court to decide whether to exercise its discretion to strike or dismiss 25-years-to-life firearm enhancement it had previously imposed].)
Here, we agree with the parties that new subdivision (h) of section 12022.53 is applicable to appellant's non-final judgment. Because there is no evidence in the record showing that the court would in any event have exercised its discretion to impose the 25-year enhancement (see People v. Gutierrez (2014) 58 Cal.4th 1354, 1391), we shall remand the matter to the trial court for resentencing to allow it to exercise its discretion under section 12022.53, subdivision (h) in deciding whether to strike or dismiss the firearm enhancement.
The judgment is modified to reflect a conviction for second degree murder. The matter is remanded for resentencing with directions to exercise its discretion, pursuant to section 12022.53, subdivision (h), in deciding whether to strike or dismiss the firearm enhancement. Following resentencing, the trial court is directed to prepare an amended abstract of judgment and forward a certified copy of that document to the Department of Corrections and Rehabilitation reflecting the changes in the judgment. In all other respects, the judgment is affirmed.
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________