P. v. Frank













Filed 3/23/17 P. v. Frank CA6








NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY ARMSTRONG FRANK,

Defendant and Appellant.

H042306
(Santa Clara County
Super. Ct. No. C1117615)

Defendant Anthony Armstrong Frank appeals from a judgment entered after a jury convicted him of two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c) -counts 1 and 3)[1] and one count of shooting at an occupied motor vehicle (§ 246- count 2). The jury also found true the allegations that defendant personally used a firearm in the commission of the robberies (§ 12022.53, subd. (b)). The trial court sentenced defendant to a total term of 17 years and four months in prison. On appeal, defendant contends: (1) the trial court erred when it denied his motion to suppress evidence; and (2) there was insufficient evidence to support his conviction of shooting at an occupied motor vehicle.The judgment is affirmed.


I. Statement of Facts
A. March 16, 2011: Counts 1 and 2
Sometime between 11:45 p.m. and midnight on March 16, 2011, Dionizy Slabolepszy and his employee, Shyeeda Ashford were in Ashford’s caroutside Slabolepszy’s business at 3266 De La Cruz Boulevard in Santa Clara. Slabolepszy was sitting in the front passenger seat. As Slabolepszy and Ashford were talking, a Pontiac approached them with its high beam headlights on. The car stopped in front of them and parked about 300 feet away. Two men exited the car and walked very quickly toward them. When they were about 20 steps from the car, Slabolepszy saw that they were carrying handguns “big enough to see in the distance.” They were wearing ski masks and heavy, puffy jackets.
Ashford immediately locked the car doors and closed her window. Slabolepszy heard two gunshots and “[p]retty instantaneously” the men ordered them to open the doors and pounded on top of the car.[2]One of the men was on the driver’s side and the other was on the passenger side. After Ashford unlocked the doors, the man on the driver’s side opened the door, leaned over Ashford, and held his gun on Slabolepszy’s neck. Both men demanded that Slabolepszy give them money. Slabolepszy handed $60 to the man on the driver’s side. One of the men asked, “What else you got?” Slabolepszy was holding his cell phone. The man on his side hit him in the mouth four or five times with his closed fist in which he was holding a gun. One of Slabolepszy’s teeth was knocked out. The man wore gloves, and the handgun was black and not a revolver. Slabolepszy, who was six feet tall, thought this man was one or two inches taller than he was and about 250 pounds.
Slabolepszy sank down in his seat to avoid the blows and started to lose consciousness. When the man stepped back, Slabolepszy crawled out of the car. After the man on the passenger’s side said, “Give me your phone,” Slabolepszy threw the cell phone about three or four feet from the man, ran to his office, and called 911.
Police officers found a bullet hole in the front left wheel area of Ashford’s car. A spentnine-millimeter Luger casing and a deformed bullet were found from the scene near the car.

B. March 18, 2011: Count 3
On March 18, 2011, Jorge Navarrete responded by e-mail to an ad on craigslist for a HTC Evo cell phone. After an exchange of e-mails, Navarrete spoke to the seller and they agreed on a price of $300. They arranged to meet at 8:00 p.m. at an apartment complex at 1919 Fruitdale Avenue in San Jose.Navarrete arrived at the complex at about 8:05 p.m. After some confusion about which gate was the meeting place, Navarrete drove to another gate. Navarrete identified defendant at trial as the seller.
Navarrete introduced himself to defendant and defendant identified himself as “Kyle.” Navarrete asked to see the phone. Defendant replied that he had the phone and asked to see the money. Navarrete invited defendant into his car. Navarrete sat in the driver’s seat while defendant, who was holding a plastic shopping bag, sat in the front passenger seat. Defendant did not close the passenger-side door. After Navarrete pulled out $300 in 20 dollar bills, defendant reached into the shopping bag, pulled out a stainless steel or chrome semiautomatic handgun with a black handle, pointed it at Navarrete, clicked it, and demanded the money. Navarrete handed the money to defendant, who then demanded Navarrete’s phone. Before giving defendant the phone, Navarrete asked if he could remove the memory card because there were photos and personal information on it. Defendant did not allow him to remove it. As defendant reached for Navarrete’s car keys in the ignition, Navarrete grabbed them. Though defendant told Navarrete that he was going to throw the keys into the bushes, Navarrete refused to hand them over. Defendant exited the car and ran toward the apartment complex.
Navarrete drove to a nearby 7-Eleven where he used the store phone to call 911. The parties stipulated that Navarrete was interviewed by the police and described the suspect as a black adult male, mid-30’s, six feet five inches tall, weighing 230 to 250 pounds, wearing a black-hooded sweatshirt, black pants, and black shoes with white soles. Navarrete also provided the police with a copy of the e-mail of the craigslist ad for the phone. The craigslist ad was placed at 12:12 p.m. on March 18 and the phone number in the ad was 408-386-7340.
On March 18, 2011, San Jose police officers were preparing to conduct a “rolling surveillance” of defendant using a Global Positioning Satellite (GPS) tracking device that had been placed on his white 2009 Pontiac GT with a license plate number of 6GEF303. At about 8:30 p.m. that evening, Sergeant Gustavo Perez and his team were in the area of Fruitdale Avenue and Leigh Avenue because an armed robbery had been reported. The suspect of the armed robbery was described as an African-American male between 20 to 30 years of age, six feet five inches tall,[3] heavy build, and wearing a dark-colored hooded jacket and dark pants.
Sergeant Perez received information that defendant’s car was in the general area of the robbery. Shortly thereafter, he saw defendant’s car in the area of Capitol Avenue and Berryessa and followed it into a shopping center parking lot. Defendant parked his car in front of a Dollar Tree store. Sergeant Perez parked a short distance from defendant’s car and observed defendant exit his car and enter the Dollar Tree store. Defendant was wearing a dark-colored hooded sweatshirt and dark-colored sweatpants. Defendant entered the Dollar Tree store and remained there for five to 10 minutes. Defendant returned to his car, then exited it while he was holding what appeared to be a cell phone. Defendant walked over to a trash can, discarded the object, returned to his car, and drove toward Berryessa. Sergeant Perez directed other members of the surveillance team to continue to keep defendant’s car under surveillance.
Sergeant Perez found a Samsung cell phone on top of the garbage in the trash can. It was raining and the garbage was wet, but the cell phone was clean and dry. Though the cell phone was missing the SIM card and the battery, the police were able to track the device using the serial number of the phone. The phone was identified as the phone listed in the craigslist ad with the phone number of 408-386-7340.
Defendant drove to his apartment on 750 North King Road after leaving the shopping center parking lot. Defendant was eventuallytaken into custody and police found a black smartphone in his pocket. Officers performed a sweep of the apartment and found no one else inside.
Later that evening, Navarrete was taken to the scene of defendant’s arrest for an in-field identification. Navarrete identified defendant as the person who had robbed him. He stated that he was 100 percent sure that defendant was the robber.
When defendant was interviewed after his arrest, he stated that he was the only person who drove his Pontiac GT on March 18, 2011. He also stated that he was with Steffon Macey that day. The parties stipulated that Macey was interviewed by the Santa Clara police and was identified as an African-American male who was six feet tall and weighed 225 pounds. Appellant stated that he had thrown a cell phone away outside the Dollar Tree store that day because it was out ofminutes. Defendant admitted that he owned two handguns.

C. Search of Defendant’s Residence
At approximately 4:00 a.m. on March 18, 2011, the police searched defendant’s residence pursuant to a warrant. They found a loaded black nine-millimeter Glock semiautomatic handgun and a loaded .40-caliber Sig Sauer semiautomatic handgun in the closet. The Sig Sauer handgun was silver with black grips. The parties stipulated that the nine-millimeter casing and the bullet found at the scene of the robbery at De La Cruz Boulevard were fired from the Glock semiautomatic handgun found in defendant’s apartment.
The police found four boxes of ammunition, a “speed loader” for a semiautomatic handgun, two ski masks, and two pairs of gloves in defendant’s closet. They also found a pair of black shoes with white soles and a black-hooded sweatshirt. A wallet containing defendant’s driver’s license and $300 in $20 bills, which were folded together, was found in the closet. There was $81 in a separate compartment of the wallet.
The eye holes of one of the ski masks had a DNA mixture of at least four individuals and at least one of the individuals was male. Defendant was a possible contributor to the major DNA component. The statistical likelihood that the major DNA profile would include defendant as opposed to some unknown individual was one in 480 million individuals in the African-American population.
The eye holes of the other ski mask had a DNA mixture of at least three individuals. Macey was determined to be a contributor to the major component of this DNA.
DNA obtained from one of the gloves located in defendant’s apartment was a mixture of at least two individuals and included defendant and Macey as possible contributors of the major DNA component. DNA from the other pair of gloves was a mixture of at least three individuals. Macey was the source of the major DNA component, but the results were inconclusive as to defendant.



D. Telephone Records
The Samsung cell phone (408-386-7340) that defendant threw in the trash can near the Dollar Tree store had been activated on March 18, 2011. The police seized a Sprint cell phone with the number 408-207-2991 from defendant’s apartment. This phone contained photographs of the cell phone offered for sale in the craigslist ad which was provided by Navarrete. Telephone records showed that calls were made between 11:42 a.m. and 11:44 a.m. on March 18, 2011,from the Samsung phone to the Sprint cell phone seized from defendant’s apartment. Telephone records also showed calls and text messages on the evening of March 18, 2011, between Navarrete’s phone and the defendant’s Samsung phone. A call was made from the Samsung phone to Navarrete’s phone at 8:43 p.m. that night. Both cell phones used the same cell tower, which was in the area of Fruitdale and Leigh near 1919 Fruitdale Avenue.

E. GPS Records
On February 23, 2011, Officer Alex Gutierrez placed a GPS tracking device on defendant’s 2009 Pontiac GT. At 11:34 p.m. on March 16, 2011, defendant’s vehicle was traveling from 74 to 99 Descanso Drive in San Jose. Between 11:55 p.m. on March 16, 2011, and 12:10 a.m. on March 17, 2011, defendant’s vehicle was located in the area of 3200 and 3378 De La Cruz Boulevard near the intersection with Laurelwood Drive in Santa Clara, which was in the area of Slabolepszy’s office. The GPS records indicated that the vehicle travelled between four and six miles per hour. The records never showed that the vehicle had stopped on De La Cruz Boulevard, but the address remained the same for a full two minutes.
At 8:36 p.m. on March 18, 2011, the GPS records indicated that defendant’s vehicle travelled at 14 miles per hour between 1976 and 2149 Fruitdale Avenue in San Jose. About a minute later, the vehicle was traveling 18 miles per hour between 1900 and 1981 Kingman Avenue. The vehicle was not moving in the area of 1800 and 1899 Kingman Avenue. There was no indication that the vehicle went to 1919 Fruitdale Avenue or that it stopped at De La Cruz Boulevard.
The GPS device was programed to record information every minute. Thus, the GPS readings would not necessarily record a brief stop by the vehicle.

II.Discussion
A. Motion to Suppress Evidence
Defendant contends that the trial court erred when it denied his motion to suppress evidence derived from the placement and use of the GPS tracking device on his vehicle without a warrant.
1. Background
At the hearing on the motion to suppress evidence, the parties stipulated that the white vehicle belonged to defendant and there was no warrant for the placement of the GPS device on this vehicle. Lieutenant Johnson Fong testified that he was assigned to the investigation of an attempted robbery at a Kwikee Mart store that occurred on February 5, 2011. An employee saw two male subjects exit a white Pontiac, put on black ski masks, and enter the store. The license plate of the car was 6GEF303 and defendant was the registered owner of this car. Lieutenant Fong and other officers decided to place the car under surveillance using the MERGE unit of the San Jose Police Department. On February 23, 2011, a GPS tracking device was placed on the robbery suspect’s car because it was very difficult to follow a car without being discovered. The GPS device was also very accurate in monitoring a subject.
Lieutenant Fong understood that in February 2011, the law did not require a search warrant to attach a GPS device to a car. However, he was also aware that since 2012 a search warrant must be obtained prior to placing a GPS device on a car under the case of United States v. Jones.[4]According to Lieutenant Fong, the holding in Jones “was a paradigm shifting” for law enforcement, “[b]ecause at that time, 2011, there was not a need for a warrant. However, in 2012, based on this decision, we have to . . . obtain a search warrant.”
On March 17, 2011, Lieutenant Fong asked Officer Gutierrez to obtain the computer data from the tracking device and determine the location of defendant’scar at the time of the robbery. Lieutenant Fong was informed that defendant’s car was in the area of the Santa Clara robbery at that time. The MERGE unit used the GPS tracking device to locate his car on March 18, 2011.
The parties stipulated that the MERGE unit followed defendant to the Dollar Tree store, saw what appeared to be a cell phone dropped into a trash can, and followed him to his apartment where he was arrested. After Lieutenant Fong was informed that there were guns inside defendant’s home, he obtained a search warrant to retrieve the weapons and other devices. Though the affidavit in support of the warrant did not mention the GPS device, it included information that was derived from the GPS device. During the search of defendant’s home, officers found two guns, $381 in cash, a black ski mask, and other items.
The trial court denied the motion. Citing toPeople v. Zichwic (2001) 94 Cal.App.4th 944 (Zichwic), which held that a detective’s placement of an electronic tracking device on the defendant’s truck did not amount to a search within the meaning of the Fourth Amendment, the trial court concluded that the officers reasonably relied on binding precedent when the device was placed on defendant’s car.
2. Analysis
In 2012, after the use of the GPS device in the present case, the United States Supreme Court held that the government’s installation and use of a GPS device on an individual’s vehicle constituted a search within the meaning of the Fourth Amendment. (Jones, supra, 565 U.S. at p. 404.) The Jonescourt concluded that the exclusionary rule of the Fourth Amendment applies not only “when government officers violate a person’s ‘reasonable expectation of privacy,’ ” but also when a trespass to the defendant’s personal property, is “conjoined with . . . an attempt to find something or to obtain information.” (Id. at pp. 406, 408& fn. 5.)Thus,Jones affirmed the Court of Appeals’ reversal of the judgment on the ground that the admission of evidence obtained by use of a GPS device without a warrant violated the Fourth Amendment. (Id. at pp. 404, 413.)
The issue before us is whether Jones applied to the present case. InDavis v. United States (2011) 564 U.S. 229 (Davis), the court held that “[e]vidence obtained during a search conducted inreasonable reliance on binding precedent is not subject to the exclusionary rule.” (Id. at p. 241.) The Davis court concluded that “[e]xcluding evidence in such cases deters no police misconduct and imposes substantial social costs.” (Id. at p. 249.)
Here, when the GPS device was attached and used to monitor defendant’s car in 2011, no search warrant was required under state and federal authority. (See People v. Mackey (2015) 233 Cal.App.4th 32 (Mackey); see alsoZichwic, supra, 94 Cal.App.4th at pp. 953-956; United States v. McIver (9th Cir. 1999) 186 F.3d 1119, 1126-1127.)
Defendant contends that Zichwic did not authorize the warrantless placement of the GPS device on his car, because Zichwic’s holding was limited to parolees who were subject to a search condition. This contention was rejected by the court inMackey. In that case, the court observed: “Where‘ “two independent reasons are given for a decision, neither one is to be considered mere dictum, since there is no more reason for calling one ground the real basis of the decision than the other. The ruling on both grounds is the judgment of the court and is of equal validity.” ’ [Citations.]”(Mackey, supra, 233 Cal.App.4th at p. 96.) The Mackeycourt reasoned that after the Zichwic court affirmed the trial court’s ruling on the parole search, it also stated:“ ‘If defendant was not subject to a parole search condition, we would conclude, on the record before us, that installing an electronic tracking device on the undercarriage of defendant’s truck did not amount to a search within the meaning of the Fourth Amendment.’ [Citation.] Zichwic’s analysis on this point was not mere dictum, but rather an alternative, independent holding. The court closed its discussion by saying, ‘For all the reasons above, we conclude that the trial court did not err in denying defendant’s suppression motion.’ ”(Mackey, at p. 96.)
The court in Mackey also stated: “Even if we agreed that Zichwic’s Fourth Amendment discussion was ‘pure dictum,’ we could not find police reliance unreasonable on that basis. While McIver’s holding in 1999 was not binding on California courts [citation], there is no reason to suppose that in the absence of conflicting California authority, it would not have been grounds for reasonable good faith reliance by the police under the authority of United States v. Leon (1984) 468 U.S. 897, 918-922 and its progeny. [Citation.]” (Mackey, supra, 233 Cal.App.4th at p. 96, fn. 37.) We agree with the court’s reasoning in Mackey.
Defendant next argues that “unlike the situation in Davis, the Supreme Court’s holding inJones did not represent a ‘significant shift’ in the Court’s Fourth Amendment jurisprudence.” He points out that the Jones court explained that its decision was based on, and consistent with, precedent and protected rights that had been recognized since the 18th century.
In reaching its holding, the Jones court reasoned: “The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.Entick v. Carrington, 95 Eng. Rep. 807 (C.P.1765), is a ‘case we have described as a “monument of English freedom” “undoubtedly familiar” to “every American statesman” at the time the Constitution was adopted, and considered to be “the true and ultimate expression of constitutional law” ’ with regard to search and seizure. [Citations.]” (Jones, supra, 565 U.S. at pp. 404-405.)However, the Jonescourt also noted that it had focused on an individual’s reasonable expectation of privacy since the latter half of the 20th century in determining the scope of the Fourth Amendment.(Id. at pp. 405-406.) The court explained that the change from the “property-based approach” came withKatz v. United States (1967) 389 U.S. 347, where “we said that ‘the Fourth Amendment protects people, not places,’ and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan's concurrence in that case, which said that a violation occurs when government officers violate a person’s ‘reasonable expectation of privacy,’ [citations].” (Jones, at pp. 405-406.) Thus, police officers would not have reasonably anticipated this shift in Fourth Amendment analysis, particularly in light of federal and state precedent contrary to Jones. Accordingly, the trial court did not err when it denied defendant’s motion to suppress evidence.

B. Sufficiency of the Evidence
Defendant also contends that the evidence was insufficient to support his conviction of shooting at an occupied motor vehicle.
“Where, as here, a defendant challenges the sufficiency of the evidence on appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—evidence that 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. Hubbard (2016) 63 Cal.4th 378, 392.)“ ‘We presume “ ‘in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct or circumstantial evidence is involved.” [Citation.]’ [Citation.]” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.)
Defendant argues that there was no evidence that he personally discharged a firearm at Ashford’s car. He also argues that there was insufficient evidence that he aided and abetted the shooting by his confederate.
“Under California law, a person who aids and abets the commission of a crime is a ‘principal’ in the crime, and thus shares the guilt of the actual perpetrator.” (People v. Prettyman (1996) 14 Cal.4th 248, 259.) “[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561.)“ ‘Among the factors which may be considered in determining aiding and abetting are: presence at the crime scene, companionship, and conduct before and after the offense.’ [Citation.]The intent to aid and abet may form before or during the perpetrator’s commission of the crime. [Citation.]” (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1065.)
Here, Slabolepszy saw defendant’sPontiac approach with its high beam headlights shining in his eyes. After the car stopped, two men walked very quickly toward Ashford’s car. Both men were carrying handguns and wearing ski masks. Ashford locked the doors and closed her window. After Slabolepszy heard two gunshots, which hit Ashford’s car, the men immediately ordered them to open the doors. Evidence also established that defendant provided both handguns, ski masks, and gloves indicating that defendant and his companion clearly planned the robbery. Based on the close timing between the shooting into the car and the demands to unlock the doors, the jury could have reasonably inferred that the shooting was the product of a common plan between defendant and his companion to shoot into the car to gain access to the victims in the event the doors were locked. Thus, defendant acted with knowledge of the perpetrator’s unlawful purpose. Defendant’s armed participation in the crimes showed that defendant intended to encourage the perpetrator to commit the shooting and did in fact encourage the shooting into the car. Accordingly, there was substantial evidence to support defendant’s conviction of shooting into an occupied motor vehicle.

III. Disposition
The judgment is affirmed.

















_______________________________
Mihara, J.



WE CONCUR:






______________________________
Elia, Acting P. J.






______________________________
Bamattre-Manoukian, J.








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People v. Frank
H042306

[1] All further statutory references are to the Penal Code.
[2] Slabolepszy did not know which of the men fired his gun at the car.
[3] Defendant is about six feet six inches tall.
[4] United States v. Jones (2012) 565 U.S. 400 (Jones).