Filed 9/17/26 P. v. Cowan CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A156253
v. (San Francisco City & County
RON COWAN, Super. Ct. Nos. 229497/18005814,
Defendant and Appellant. 229498/18010055)
In our prior opinion in this matter, filed in March 2020, we affirmed
defendant Ron Cowan’s conviction of auto burglary, reversed a 16-month jail
term imposed as a component of his probationary sentence, and remanded
to the trial court to conduct further sentencing proceedings, including
addressing any argument by Cowan that he is unable to pay a restitution
fine (Pen. Code, § 1202.4) and court operations and court facilities
assessments (Pen. Code, § 1465.8; Gov. Code, § 70373). (People v. Cowan
(Mar. 27, 2020, A156253) (Cowan I), review granted June 17, 2020,
S261952, transferred and opn. ordered depublished, June 10, 2026.)
The California Supreme Court granted review, and in June 2026,
transferred the case to this court with directions to vacate our prior decision
and to reconsider the cause in light of People v. Kopp (2025) 19 Cal.5th 1
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(Kopp), a case that considered a criminal defendant’s ability to challenge
fines and assessments on constitutional grounds. (People v. Cowan,
S261952, Supreme Ct. Mins., June 17, 2020; id., June 10, 2026.)
As we explain below, we again conclude (as we did in our prior
opinion) that the trial court correctly denied a motion by Cowan to suppress
evidence, but that the court erred in imposing a 16-month jail term as a
condition of Cowan’s probation. We will vacate our prior decision, and we
will again affirm Cowan’s conviction, reverse the 16-month jail sentence,
and remand for further sentencing proceedings. As to the fine and
assessments, we will direct the trial court to consider, at resentencing and
under the standards outlined in Kopp, any argument by Cowan that (1) the
restitution fine is excessive or (2) he is unable to pay the court operations
and court facilities assessments.
I. BACKGROUND
A. Factual Background
On April 14, 2018, at about 6:10 p.m., San Francisco Police Sergeant
James O’Malley was on patrol in the area of Polk and Grove Streets when
he was approached by a woman, identified as “Arie,” who said she believed
two white males were breaking into a car nearby. Sergeant O’Malley went
to the location of the reported break-in and found an empty parking space
where glass shards were on the ground. On the way, a second witness,
identified as James Scott, said he saw one of the suspects, a man wearing a
yellow jacket with dread-style hair, use what appeared to be a cell phone to
break the left rear passenger window of a “newer” “white” car that looked
“similar to a Nissan Ultima [sic]” and reach into it. Scott then saw a second
man, who was nearby, eventually get in the car with the first man, at which
point they drove off together. The second man had long hair.
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After driving in the vicinity of Market Street and Civic Center looking
for the stolen car, 39 minutes after leaving the scene of the break-in
Sergeant O’Malley drove off to respond to a call from dispatch about a
matter near Larch Way and Eddy Street. While en route to that area, on
westbound Eddy Street at the intersection of Gough Street, Sergeant
O’Malley saw a white Ford Fusion waiting there with a missing or rolled
down left rear passenger window and a bicycle lying across the back seat.
The driver of the Fusion had “kind of a dreadlocks style” hair, the passenger
had long hair, and both were white.
Sergeant O’Malley then decided to do an investigative stop and made
a U-turn. At that point, the Fusion accelerated quickly, squealing its tires,
but was forced to stop in the midst of a traffic jam. Sergeant O’Malley and
multiple other officers who had been called in for backup converged on the
car in heavy traffic. Neither man in the car was wearing a yellow jacket.
Cowan, the driver of the car, was placed in handcuffs at the scene, and then
taken to a cold show where he was identified by Scott as one of the two
suspects who drove off in the burgled car.
B. Trial Court Proceedings
Cowan filed a motion to suppress, arguing lack of reasonable suspicion
to detain him in the traffic stop on Eddy Street. The motion was denied.
After pleading guilty to second degree auto burglary (Pen. Code, § 459),
Cowan, pending preparation of the probation report and sentencing, agreed
to a 16-month “hammer” (i.e., imposition of a 16-month term in county jail if
he failed to appear for his sentencing hearing or to his probation department
interview). He failed to appear at both sentencing and his probation
interview. At a continued sentencing hearing, the court rejected Cowan’s
excuses for these failures to appear—he claimed he was late to court
because he had trouble finding a place to stow his backpack, and that he left
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a voicemail with the probation department asking to reschedule—and then
sentenced Cowan to three years’ formal probation, subject to the 16-month
hammer. The court also imposed a $300 restitution fine (Pen. Code,
§ 1202.4), a $300 probation revocation restitution fine (stayed unless
probation was revoked) (Pen. Code, § 1202.44), a $40 court operations
assessment (Pen. Code, § 1465.8), and a $30 court facilities assessment
(Gov. Code, § 70373).
C. Proceedings on Appeal
Appealing from the judgment of conviction and the sentence, Cowan
argued that: (1) the court erroneously denied his pre-plea motion to
suppress because his detention 39 minutes after and eight to ten blocks
from the scene of the break-in based on nothing more than that he was a
white man with dread-style hair, driving a white car, is not enough to justify
a detention under Terry v. Ohio (1968) 392 U.S. 1 (Terry); (2) the court
abused its discretion in imposing the 16-month hammer because there is no
substantial evidence that Cowan’s failures to show up to the sentencing
hearing and to his probation department appointment were willful; and
(3) we should either strike the restitution fine and the assessments or stay
them under People v. Dueñas (2019) 30 Cal.App.5th 1157, disapproved in
Kopp, supra, 19 Cal.5th at page 23 and footnote 17.
In our first opinion in this matter, we rejected Cowan’s argument that
he was detained in violation of the Fourth Amendment. (Cowan I, supra,
A156253.) We reversed the 16-month jail sentence, not because imposing it
as a hammer was an abuse of discretion but because a jail term exceeding
12 months as a condition of probation is an unauthorized sentence under
Penal Code section 19.2. (Cowan I, supra, A156253.) We remanded for
resentencing. Finally, we concluded the trial court erred by overruling
Cowan’s objection that he was unable to pay the minimum restitution fine
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and the court operations and court facilities assessments. (Ibid.) Basing
our holding on the excessive fines clauses of the Eighth Amendment and
article I, section 17 of the California Constitution, we directed that, on
remand, Cowan be given the opportunity to prove his inability to pay the
fine and the assessments. (Ibid.)
The Attorney General petitioned for review, challenging our holding
on the fine and assessments. The California Supreme Court granted review
and deferred briefing pending its resolution of Kopp. (People v. Cowan,
S261952, Supreme Ct. Mins., June 17, 2020.) Following its December 2025
decision in Kopp, the Supreme Court transferred the present matter to us in
June 2026, directing this court “to vacate its decision and reconsider the
cause in light of” Kopp. (People v. Cowan, S261952, Supreme Ct. Mins.,
June 10, 2026.)
The parties have filed posttransfer supplemental briefs in this court,
in which they address issues pertaining to the restitution fine and
assessments. As to the other issues raised by Cowan on appeal and
addressed by this court in its prior opinion (i.e., the suppression ruling and
the 16-month hammer), Cowan states in his supplemental brief that “[t]he
prior opinion’s reversal of the 16-month custody term should remain
unchanged.” The Attorney General does not suggest this court should
modify that ruling, and neither party addresses the suppression issue.
Since we are vacating our decision in compliance with the Supreme
Court’s transfer order, we will again set forth our analysis of all three of
Cowan’s appellate arguments, but we find no basis to modify our rulings as
to the suppression motion or the 16-month custody term. We will remand
for resentencing and will direct that the trial court consider, in light of the
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framework set forth in Kopp, any challenge by Cowan to the minimum
restitution fine and the court operations and court facilities assessments.
II. DISCUSSION
A. Denial of Motion To Suppress
We conclude that when Sergeant O’Malley encountered Cowan on
Eddy Street, he had specific and articulable facts indicating Cowan’s
possible involvement in criminal activity.
Two witnesses told O’Malley that each believed two white men were
breaking into a car. The second witness, Scott, described the men as having
long hair, and said one of them had dreadlocks. Scott said the man with
dreadlocks broke the left rear passenger window of the car by using a cell
phone. Scott described the car as a newer white car, “similar to a Nissan
Ultima [sic].” O’Malley was familiar with this car. He described it as a
“medium-size sedan, four doors, kind of common and sedan styling, similar
to a number of sedans on the market.” Scott next led Sergeant O’Malley to
the location where he had made his observations. There, O’Malley observed
an empty parking space with shards of shattered glass on the ground.
Approximately 40 minutes later, a distance away but in the same general
area, Sergeant O’Malley saw a white male with dreadlocks driving a white
four-door Ford Fusion. The Fusion was a newer model, a 2017, and the
passenger in the car was a white male with long hair. Furthermore, the
“left rear window was either down or missing.”
Challenging the grounds for detention as violative of the Fourth
Amendment under Terry, supra, 392 U.S. 1, Cowan emphasizes the different
makes of the two cars involved, the distance between the location of the
crime and the location where he was detained, the passage of time, and the
differences between the two scenes (i.e., bicycle on back seat in one scene
but not the other, yellow jacket in one scene but not the other). We are not
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persuaded that any of these “discrepancies” makes a difference for Fourth
Amendment purposes. Enough unique identifiers were known to Sergeant
O’Malley—white, relatively new sedan in the same general area as the
break-in; two white men in it, one with dread-style hair; open left rear
passenger window—to detain the men in the car for questioning, especially
since the driver’s conduct could reasonably be interpreted as an attempt to
flee in the presence of police.
This is not a case in which a detention was made based on a hunch,
without any objective specifics connecting the detainee to criminal activity.
Upon consideration of the totality of the circumstances, we are satisfied
that, when Sergeant O’Malley spotted Cowan driving a white car on Eddy
Street, he had ample basis to connect him to the car theft in the vicinity of
Polk and Grove Streets and thus to conduct a Terry stop. (In re Tony C.
(1978) 21 Cal.3d 888, 894 [“The possibility of an innocent explanation does
not deprive the officer of the capacity to entertain a reasonable suspicion of
criminal conduct. Indeed, the principal function of [police] investigation is
to resolve that very ambiguity and establish whether the activity is in fact
legal or illegal”]; People v. Leath (2013) 217 Cal.App.4th 344, 354–355
[minor discrepancies in descriptions of a suspect or a vehicle are not
dispositive for purposes of reasonable suspicion].)
B. Imposition of 16-Month Hammer
At the sentencing hearing on January 9, 2019, the prosecutor pointed
out that Cowan had been on felony probation at the time of the vehicle
burglary to which he pleaded guilty, and that he had a very extensive
criminal history. The prosecutor stated that the terms of the hammer were
quite clear—that it would indeed serve as a hammer, not as a substitute
sentence. The prosecutor stated he would compromise and agree to a one-
year hammer for Cowan with probation still being in place. The prosecutor
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argued that the “credit for time served” sentence recommended by the
probation officer, “given the nature of the negotiations that occurred in this
case” and given Cowan’s history, was not appropriate. And, the prosecutor
continued, “irrespective of what probation may indicate what they think is
appropriate here, they were not part of the negotiated deal. That negotiated
deal Mr. Cowan agreed to included the 16-month hammer. [¶] If he is
uninterested in the proposed compromise of a year, then I think that the
16-month hammer should be imposed, and he should still be on probation
afterwards.”
The court essentially agreed with the prosecutor: “THE COURT: So
in the Court’s view, [the prosecutor]’s position is correct. The parties[’]
negotiated resolution here stated clearly on the record, and the Adult
Probation Department’s overall recommendation are the same. That is, if
the defendant failed to comply with the conditions of the hammer, as he did,
the recommendation I’m looking at in the pre-sentence report is that he be
sentenced to a term of 16 months as well as be placed on probation. [¶] And
the pre-sentence report very clearly states the reasons for that conclusion,
stating that Mr. Cowan has an extensive criminal history dating back to
1999. He has been sentenced to probation on numerous occasions which
were met with probation violations, modifications, and unsuccessful
terminations. He also has been sentenced to state prison in another state
on two occasions, and among other things, that at the time of his arrest he
was on felony probation in San Francisco for second-degree burglary.”
After reciting this background relating to Cowan’s record of prior
convictions and probation history, the court turned to the parties’
discussions about Cowan’s sentence. “[T]he Court has engaged in
discussions—informal discussions with counsel in chambers, intended to
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arrive at a sentence that albeit one at variance with the one that the
defendant expressly agreed to on the record, that in the Court’s and the
parties’ view would be a just sentence under the circumstances. [¶] And it
was under those circumstances that [the prosecutor] is, as he has indicated,
that the People, as a compromise, would be willing to reduce the so-called
hammer to [a] 12-month period rather than a 16-month period. Of course
what we are talking about here is the defendant is 4019 eligible. [¶] So,
[defense counsel], you offered me a choice. I’m going to offer your client, in
turn, a choice, and then I’m going to give you a couple of minutes to consider
it with him, and then I’m going to impose sentence.”
At that point the court set out Cowan’s options. “The choices [are] as
follows: I will either sentence him in accordance with the terms of the
parties’ original negotiated settlement; that is, that he be placed on three
years of Adult Probation, on the condition that he serve 12 months in the—
16 months in the county jail, and the other conditions that were agreed to at
the time. [¶] Or if he is willing to accept the conditions of probation, I would
be willing to impose sentence on the compromised version that [the
prosecutor] has suggested; that is, that—the custody condition of probation
be a 12-month period. If he is going to accept that sentence, that is the
sentence I will impose. [¶] If he will not, I will impose the original
negotiated 16-month probationary sentence. So I’m going to give you a
couple of minutes to discuss that with your client. Those are his choices.
And I will be back in 5 minutes or so, and we will decide which way to go.”
After a short recess, on-the-record proceedings resumed and defense
counsel told the court that Cowan did not want to accept the 12-month
compromise, but wanted “the hammer of 16 months imposed with no
probationary terms.” The court told counsel and Cowan no—that was not
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one of the choices given to Cowan—and then imposed sentence, in relevant
part, as follows: “THE COURT: Very well. Consistent with the parties’
negotiated resolution in this case, it is the judgment and sentence of the
Court as follows: Imposition of sentence is suspended. Defendant is placed
on formal probation to the Adult Probation Department for a period of 3
years on the following terms and conditions: [¶] He shall serve 16 months in
the county jail. He is entitled to credit for time served of 81 days. He is
subject to a search and seizure condition. His person, property, premises
and vehicle are subject to search without probable cause or reasonable
suspicion at any time of the day or night by any peace, parole or probation
officer.”
Cowan argues that the imposition of a 16-month jail term as a
hammer for his failure to appear at sentencing on October 18, 2018, was an
abuse of discretion. We need not reach that issue because the sentence
must be vacated for another reason. Except in situations not here relevant,
under Penal Code section 19.2, “[i]n no case shall any person sentenced to
confinement in a county or city jail . . . , as a condition of probation upon
conviction of either a felony or a misdemeanor . . . be committed for a period
in excess of one year.” The negotiated sentence of three years’ probation
subject to a custody condition of 16 months in jail exceeded the maximum
period of confinement that may be imposed under Penal Code section 19.2;
Cowan could have been sentenced to a 16-month jail term, or to probation
for three years, but not to both unless the custody term was 12 months or
less.1 We must therefore vacate the imposed jail term of 16 months as an
unauthorized sentence and remand for resentencing.
1 We note the court in People v. Bailey (1983) 140 Cal.App.3d 828, 831
held the provision of former Penal Code section 19a (now Pen. Code, § 19.2)
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C. Assessments and Restitution Fine
In Kopp, supra, 19 Cal.5th 1, the Supreme Court held a challenge to
the amount of a criminal fine, such as a restitution fine under
section 1202.4, should be reviewed under the excessive fines provisions of
the United States and California Constitutions. (Kopp, at pp. 9, 13, 23, 30.)
As to “ancillary costs” such as a court operations assessment (Pen. Code,
§ 1465.8, subd. (a)(1)) or a court facilities assessment (Gov. Code, § 70373,
subd. (a)(1)), the Supreme Court held equal protection principles require
that, upon request, a court must consider a defendant’s inability to pay
these assessments before imposing them. (Kopp, at pp. 9, 14–15, 31.)
specifying the one-year limit on county jail time as a condition of probation
may be waived by the defendant. Specifically, the Bailey court concluded
that, because “section 19a was designed exclusively for the defendant’s
protection, we see no legal impediment to defendant’s knowing and
intelligent waiver of the one-year limitation therein on confinement in the
county jail.” (Bailey, at p. 831.) But the record here shows no such waiver.
Although Cowan agreed to the 16-month hammer when he entered his
guilty plea, the transcript of that hearing does not show that Cowan was
advised he had a statutory right to receive no more than a 12-month county
jail term as a condition of probation, or that he knowingly and intelligently
waived that statutory right.
In the related context of a waiver of custody credits under Penal Code
section 2900.5, our Supreme Court has stated: “The gravamen of whether
such a waiver is knowing and intelligent is whether the defendant
understood he was relinquishing or giving up custody credits to which he
was otherwise entitled under section 2900.5.” (People v. Arnold (2004)
33 Cal.4th 294, 308; see also People v. Sivongxxay (2017) 3 Cal.5th 151, 166
[criminal defendant’s waiver of right to jury trial “ ‘may not be accepted by
the court unless it is knowing and intelligent, that is, “ ‘ “made with a full
awareness both of the nature of the right being abandoned and the
consequences of the decision to abandon it” ’ ” ’ ”].) There is no evidence here
that Cowan understood he was relinquishing or giving up a statutory right
(the 12-month limitation on county jail time that may be imposed as a
condition of probation) to which he was otherwise entitled.
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Pursuant to Kopp, Cowan may, on remand, challenge the imposition of
any fine (such as the restitution fine under Pen. Code, § 1202.4, or the
probation revocation restitution fine under Pen. Code, § 1202.44) as
constitutionally excessive under the federal and state constitutions. (Kopp,
supra, 19 Cal.5th at p. 30; see U.S. Const., 8th Amend.; Cal. Const., art. I,
§ 17.) The trial court shall consider any such challenge under the standards
outlined by the Supreme Court in Kopp. In addition, as to “ancillary costs,”
if requested by Cowan, the trial court shall consider his inability to pay
before imposing a court operations assessment under Penal Code
section 1465.8, subdivision (a)(1) or a court facilities assessment under
Government Code section 70373, subdivision (a)(1), “allowing the parties to
present any relevant evidence or argument on the matter.” (Kopp, at p. 31.)
We reject Cowan’s request that we make these determinations on
appeal based solely on information about Cowan’s financial situation that
was available at his January 2019 sentencing hearing (such as information
in the probation report prepared for that hearing). We agree with the
Attorney General that, on remand, the trial court may consider any relevant
evidence or argument presented by the parties (including any evidence as to
changes in Cowan’s financial circumstances).
We also decline Cowan’s request that we give more specific remand
instructions (beyond what we have outlined above), such as directing the
trial court as to whether and how it should consider certain questions
addressed by Justice Liu in his concurring opinion in Kopp. (See Kopp,
supra, 19 Cal.5th at pp. 32–35 (conc. opn. of Liu, J.).) The trial court’s
ruling should be based on the nature of any challenge Cowan makes on
remand, and the evidence and arguments presented by the parties in
support of, or in opposition to, that challenge.
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III. DISPOSITION
This court’s decision filed on March 27, 2020, is vacated.
The sentence to a 16-month term of incarceration is reversed. The
cause is remanded for further sentencing proceedings consistent with Kopp,
supra, 19 Cal.5th 1, and with this opinion. In all other respects, the
judgment is affirmed.
STREETER, J.
WE CONCUR:
BROWN, P. J.
GOLDMAN, J.
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