Filed 3/22/13 P. v. Phillips CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
KARL
PHILLIPS,
Defendant and Appellant.
A136896
(City & County of San
Francisco
Super. Ct. No. 216220)
Defendant
Karl Phillips appeals his conviction for second
degree robbery, based upon a guilty plea entered after the trial court had
denied his motion to suppress evidence. His appointed counsel has filed a brief
pursuant to
raising no issues. Defendant was informed of his
he has not done. Upon independent review of the record, we conclude no arguable
issues are presented for review and affirm the judgment.
Factual and
Procedural History
On
July 28, 2011, the
Francisco District Attorney filed a first amended complaint alleging that
defendant committed robbery in the second degree (Pen. Code, § 211),
and that he inflicted injury on a dependent adult likely to cause great bodily
injury (§ 368, subd. (b)(1)). The complaint further alleged that defendant
suffered a prior conviction for second
degree robbery (§§ 667, subd. (d) & (e), 1170.12, subd. (b) &
( c)), that the prior conviction was a serious felony (§ 667, sub. (a)(1)), and
that it constituted a prison prior (§ 667.5, subd. (b)).
Pursuant
to section 1538.5, defendant moved to suppress all defendant’s statements, all
physical evidence seized from defendant upon arrest, and all observations by
police officers, including the identification of defendant. At the preliminary
hearing, the victim, Jack Burns, was the only witness to testify. He testified
that around 9:00 a.m. on June 5, 2011, he was walking on Willow
Street when four men approached him, one of whom
he identified as defendant. Defendant asked him, “Are you looking for a lady?â€
and Burns responded “yes.†After accompanying defendant and the three other men
to a store to purchase alcohol, the group walked further down Willow
Street to a point at which defendant and the
others pushed Burns onto the ground. Defendant then took his iPod, Diamondbacks
hat, and iPhone. Defendant told Burns he had a knife and that Burns should not
tell anyone what had occurred. The men searched through Burns’ pockets before
leaving. Burns identified himself in a still shot taken from a July 5
surveillance videotape which showed three people walking down Willow
Street.
At
the conclusion of the preliminary hearing, defense counsel requested a ruling
on the motion to suppress evidence. The court responded, “there is nothing for
me to suppress at this time,†“that’s not an issue before me†as there “are no
statements that are being introduced. There is no physical evidence that is
being introduced. And there are no observations by the police officers being
introduced. The only evidence before me is the testimony of the victim who has
identified the defendant in court.â€
The trial court held defendant to answer on all counts.
On
April 11, 2012, defendant
filed another motion to suppress, seeking to suppress the same evidence as in
the earlier motion. Officer Kevin Coleman and Inspector Brian Danker were
called as witnesses at the hearing on the motion. Officer Coleman testified
that on June 25, 2011, he
was with Officer Guiney and Officer Byrne when they saw defendant and another
individual “walking in the middle of the roadway, committing a traffic
violation.†Guiney told Coleman that he recognized defendant as a robbery
suspect. Based on the traffic violation, the officers detained defendant and
his companion for five to ten minutes, but did not issue a citation. The three
officers then went back to the station and watched the June 5 videotape that
Guiney had previously seen that implicated defendant in a robbery. Coleman
identified defendant and Burns in the surveillance video. Coleman also read
Burns’ statement about the incident, which was consistent with the videotape.
Coleman concluded, based on “the initial report . . . the video and
the time frame, [that he] had probable cause to believe that [defendant] was
the suspect.†Inspector Danker told the officers to arrest defendant the next
time they saw him. Coleman saw defendant on July 4, 2011, and took him into
custody without an arrest warrant.
Inspector
Danker testified that the surveillance videotape was retrieved from Willow
Street on the night in question. Danker showed Burns the video a week later and
Burns identified himself and the individual who threatened him with a knife and
took his property. Danker testified that defendant was the individual Burns
identified in the video.
At
the conclusion of the hearing, the court denied the motion to suppress. The
court explained, “There is no absolute requirement of an arrest warrant in
these situations. . . . [¶] And Officer Coleman testified that
. . . he wasn’t aware of this videotape [before June 25, 2011]. And
of course, [June 25th] wasn’t the time that [defendant] was arrested. He was
merely detained, and . . . they did have a reasonable suspicion to
detain†as defendant “was violating a citable offense. . . .
[¶] But having his memory tweaked, Officer Guiney went back, took Officer
Coleman and Byrne with him, had them view the videotape. They talked to
Inspector Danker, apprised themselves of the evidence in the case, being the
videotape, statement of the victim stating that the three men who were in the
videotape and identified himself in the videotape were the three men who, in
fact, had robbed him. [¶] That is enough for probable cause to arrest. And
. . . there is no requirement [to obtain a warrant] as long as you
have the probable cause, and the probable cause is there. [¶] So I am going
to deny the motion to suppress.â€
Pursuant
to a plea agreement, defendant entered a plea of guilty to one count of robbery
in the second degree. The remaining counts and allegations were dismissed and
it was agreed that imposition of sentence would be suspended. Subsequently,
imposition of sentence was suspended and defendant was placed on three years of
formal probation, subject to standard conditions, including 477 days in county
jail with equal credit for time served. Defendant filed a timely
Discussion
Since
defendant’s conviction rests on a guilty plea and no certificate of probable
cause has been obtained in the trial court, the only issues subject to review
are the denial of the motion to suppress and the propriety of rulings made
after entry of the plea that do not affect the plea’s validity. (Cal. Rules of
Court, rule 8.308(b)(4).)
Defendant’s
detention on June 25, 2011, comported with constitutional standards.
“In order to justify a detention
‘the circumstances known or apparent to the officer must include specific and
articulable facts causing him to suspect that (1) some activity relating to
crime has taken place or is occurring or about to occur, and (2) the person he
intends to stop or detain is involved in that activity.’ †(
478.) In this case, the suspected Vehicle Code violation provided reasonable
suspicion to detain defendant.
493, 496.) Officer Guiney also recognized defendant as a robbery suspect,
further justifying defendant’s detention. Defendant was detained for only five
to ten minutes, the brevity of which “weighs heavily in favor of a finding of
reasonableness.â€
title="">[4] (
367, citing United States v. Sharpe
(1985) 470 U.S. 675, 686-688 [20-minute investigative detention reasonable
under circumstances].)
Defendant’s
arrest was equally lawful. A police officer may arrest a person without a
warrant when the officer has probable cause to believe that the person has
committed a felony. (§ 836, subd. (a)(3).) Probable cause to arrest exists when
“ ‘the facts known to the arresting officer would persuade someone of
“reasonable caution†that the person to be arrested has committed a
crime.’ †(People v. Thompson
(2006) 38 Cal.4th 811, 818.) An officer may have probable cause to arrest one
whose picture has been identified by a crime victim. (People v. Villarico (1956) 140 Cal.App.2d 233, 238.) In this case,
Burns identified defendant from the surveillance video as the individual who
stole his property and threatened him with a knife. After watching the video,
Officer Guiney recognized defendant during the traffic stop on June 25. Officer
Coleman also identified defendant from the videotape. Coleman thus had ample
basis to suspect defendant as the perpetrator of the June 5 robbery of Burns.
(See In re Brian A. (1985) 173
Cal.App.3d 1168, 1174 [officers had probable cause to arrest defendants when
their descriptions corresponded with descriptions given by the victim and
broadcasted by the police].) Defendant therefore was lawfully arrested and
subject to a search as incident to arrest. (Chimel
v. California (1969) 395 U.S. 752; People
v. Flores (1979) 100 Cal.App.3d 221, 230.) Assuming that anything had in
fact been seized from defendant — itself questionable — it was not obtained
unlawfully and was not subject to suppression.
Defendant
was sentenced in accordance with his plea agreement. He was at all times
represented by competent counsel. There are no issues warranting further
briefing.
The
judgment is affirmed.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness,
P.J.
_________________________
Jenkins,
J.
name="_ftn1" title="">[1]
All statutory references are to the Penal Code unless otherwise noted.
The reporter’s transcript indicates that the trial court never explicitly
denied defendant’s motion. However, the minute order states, “defense motion to
suppress is denied.â€
