P. v. Sauceda
Filed 6/12/13 P. v. Sauceda CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Appellant,
v.
CARLOS FRANKIE SAUCEDA, JR.,
Defendant
and Respondent.
E057032
(Super.Ct.No.
RIF1201488)
OPINION
APPEAL
from the Superior Court
of
County. Helios (Joe)
Hernandez, Judge. Affirmed.
Paul
E. Zellerbach, District Attorney, Emily R. Hanks and Natalie M. Pitre, Deputy
District Attorneys, for Plaintiff and Appellant.
David
L. Polsky, under appointment by the Court of Appeal, and Alison H. Ting, for
Defendant and Respondent.
District
Attorney (DA) investigators detained defendant, Carlos Frankie Sauceda, Jr.,
and another man at night in a parking lot in a high-crime neighborhood. Defendant admitted that he was on parole. The investigators searched defendant and
found a gun in his pocket. The People
appeal from the superior court’s order setting aside the information under
Penal Code section 995
name="_ftnref1" title="">[1] after it found the magistrate erred in denying
defendant’s motion to suppress the evidence obtained as a result of the
detention. As discussed below, we find
the detention to be unconstitutional and affirm the superior court’s ruling.
and Procedure
On
February 24, 2012, the
People filed a complaint charging defendant with
felon (former § 12021, subd. (a)(1)); possession of a loaded firearm in public
by an active gang member (former § 12031, subd. (a)(2)(C)); and active
participation in a street gang (§ 186.22, subd. (a)). The People alleged defendant had served a
prior prison term (§ 667.5, subd. (b)).
Defendant
filed a motion to suppress evidence obtained as a result of an unlawful
detention (§ 1538.5). On April 30, 2012, the hearing on that
motion was held in conjunction with the preliminary hearing before the
honorable Judge W. Charles Morgan. The
testimony obtained at the hearing is as follows.
Agent
Kwan (Kwan), a District Attorney investigator assigned to the Riverside County
Regional Gang Task Force, testified.
Kwan was familiar with the Riverside gang called
the East Side Riva (ESR), but would not recognize each
of its more than 500 members. He was
also familiar with the ESR Gang Injunction (injunction), which made it illegal
for these gang members to associate with each other within an area known as the
“ESR safety zone.†The market at the
corner of Victoria Avenue
and 11th Street (market)
falls within this area. Kwan was aware
that ESR gang members had committed the crime of graffiti on the walls
surrounding the parking lot of this market and that calls for police response
had been made because of gang members hanging out “right next to†the market
yelling out their gang name at passing cars.
At
about 8:50 p.m. on October 7, 2011, Kwan and Agent
Webber (Webber), also a DA investigator, drove past the market on Victoria
Avenue. The
market has its own parking lot in the back, which is bordered by block
walls. Kwan saw three people sitting on
one of the block walls. No cars were
present. The parking lot was dimly lit
by a light on a pole. Kwan could not see
the men’s faces. Each of the men was
wearing “baggy clothing and hooded sweatshirts.†One of the men in a light-colored sweatshirt
had the hood on his head. Of the three,
one was wearing “dark clothing†and the other two were wearing light clothing.
contact them to see what they were doing in the back of the parking lot.â€
At that point in
the hearing, the People introduced as People’s Exhibit, a photograph of the
parking lot area showing the walls.
name="_ftnref5" title="">[5] The photograph had not been shown at the
suppression hearing held in the previously-filed case. Kwan testified that the men were sitting at
the point where the two walls converged, and that the driveway on Victoria
Avenue was the only way to enter or exit the
parking lot.
Kwan testified
that, after he and Webber made the u-turn, they parked “out of sight.†They got out of the car and walked toward the
parking lot along one of the walls, using the wall as “concealment.†When they turned the corner of the wall to
the parking lot, they saw two of the men walking across the parking lot toward Victoria
Avenue. The
men were walking in the middle of the parking lot, moving “diagonally†in a
direction mostly away from the agents and toward the market.
Kwan testified
that they had two reasons for approaching the men to see what they were doing
in the parking lot without a car. First,
they wanted to contact them to see if they were gang members who were
congregating in the ESR safety zone, which was prohibited by the
injunction. Second, they wanted to
determine whether a crime was happening or about to happen, such as spraying
graffiti or robbing the market.
The
agents’ suspicions were heightened by the absence of the third person, because
it was not usual for a person to leave an area as they approached unless that
person had committed a crime or was in violation of the injunction. Agent Kwan testified that they “had an
officer safety issue with the third person
leaving . . . . [¶]
. . . [¶] I’m
surrounded by a block wall. I don’t know
which direction he is or which way he went.â€
Kwan
told the two men to “‘Come here.’†At
the first command, the man other than defendant turned around toward the
agents. At that point, Kwan recognized
the man as an ESR associate, not a gang member, from three or four previous
contacts with him. Normally, when Kwan contacted
this man, or other ESR associates, they were with other ESR members or
associates. Defendant continued to walk
away. Defendant stopped after the
agents’ third command to “come here†in a loud voice. Kwan did not recognize defendant but noticed
he had a hood pulled over his head and a tattoo on his face.
Webber
contacted defendant, while Kwan contacted the other man, and asked him whether
he was on parole or probation. Defendant
said he was on parole. Webber searched
defendant and found a loaded handgun in his pocket.
At the close of
the hearing, the magistrate denied the suppression motion and found sufficient
probable cause to proceed to trial. The
magistrate reasoned: “I don’t think this rests on gangs. I think this rests on three guys in the
corner in an area that has an elevated crime rate, with no good business, in a
corner in a dim parking lot with no vehicles.â€
On
May 11, 2012, the People
filed an information alleging the same crimes as charged in the earlier
complaint. Defendant filed a motion to
dismiss the information pursuant to sections 995 and 1538.5 on the ground the
magistrate erred in denying defendant’s motion to suppress. On June 27, 2012, after hearing argument from
the parties and reviewing the papers and transcripts, the superior court
granted the motion to suppress. The
court reasoned that the investigators had no articulable suspicion that the men
might be gang members (and so in violation of the gang injunction) until after
they stopped the men, and no articulable suspicion that the men were “casingâ€
the market, that is, intending to rob it if open or burglarize it if
closed. “The officer just sees somebody
that’s, to him, the usual suspects, and he decided to shake him down but
doesn’t have a reason, and the reason doesn’t really develop after he stops
him. He just assumes they’re gang members
because they’re on the east side. And
that’s a little broad.†The court
dismissed the information. This appeal
followed.
The
People contend the superior court erred when it granted defendant’s motion to
dismiss pursuant to sections 995 and 1538.5 on the ground that the only
evidence offered at the preliminary hearing in support of the charges must be
suppressed because it was obtained pursuant to an unlawful detention. Specifically, the People argue the detention
was supported by reasonable suspicion that defendant and his companions were
involved in criminal activity, based on their presence in a high-crime area at
night, their suspicious behavior in the parking lot, and the fact that they
attempted to leave the parking lot after the agents drove by. Thus, the People argue, suppression of the
evidence was not warranted. Defendant
argues the detention was unlawful because these factors, whether considered separately
or in conjunction with each other, do not justify detaining the men. As discussed below, we conclude that the
relevant case law is fairly clear that the defendant’s mere presence at that
location at that time of night, even assuming he attempted to avoid contact
with the investigators, do not justify the detention.
On
appeal from the granting of a defendant’s section 995 review in the superior
court of the magistrate’s denial of a motion to suppress, the appellate court
directly reviews the determination of the magistrate. We must uphold the magistrate’s findings of fact
if supported by substantial evidence, but independently determine whether the
search or seizure was reasonable as a matter
of law. (People v. McDonald (2006) 137 Cal.App.4th 521, 528;
178, 182-183.)
“California
law requires that the reasonableness of searches and seizures undertaken by the
police be reviewed under federal constitutional standards. [Citation.]â€
(People v. Hochstraser (2009)
178 Cal.App.4th 883, 894.)
“A
detention is reasonable under the Fourth
Amendment when the detaining officer can point to specific articulable
facts that, considered in light of the totality of the circumstances, provide
some objective manifestation that the person detained may be involved in
criminal activity.†(
231 (Souza).)
The
facts found by the magistrate at the suppression hearing are as follows. After discounting the existence of the gang
injunction as a possible justification for the detention, the magistrate cited
the following facts: “I think this rests on three guys in the corner in an area
that has an elevated crime rate, with no good business, in a corner in a dim
parking lot with no vehicles . . . .†The magistrate also referred to the absence
of the third person: “And I think it’s justified for a peace officer to make
contact with those three. Then it turns
out there’s only two of them and one, reasonably, in leaving the area, went over
the wall. That’s not how you go home or
that’s not how you get to your car or that’s not how you—whatever.†In other words, the magistrate concluded
that, as a matter of law, the presence of the men in that parking lot at that
time of night with no car subjected them to being detained. In the magistrate’s view, the fact that one
of the men left the area, presumably over the wall, was an additional factor
but not a necessary one.
Next,
we review the cases cited by the parties and/or courts below that we find most
factually similar to the case at hand.
In In re Tony C. (1978) 21
Cal.3d 888, a police officer stopped and detained two male minors who were
walking down a public street in a high crime area during school hours. The officer was aware that three males of the
same ethnic background as these two minors were wanted in connection with a
recent string of burglaries in the area.
The officer drove past the minors, pulled a u-turn, and then on the
second pass noticed that only one of the minors was still on the sidewalk. The officer suspected the one minor might be
acting as a lookout while the other was committing a burglary nearby. The officer stopped both boys and found stolen
property on one of them. The Supreme
Court found the stop to be unreasonable and ordered the evidence found to be
suppressed.
“ . . . [I]t is not reasonable to suspect, as did
[the officer] that any minor who is proceeding along a public street during
school hours is ipso facto bent on committing crimes.†(Id.
at p. 897.) Further, although the court
acknowledged case law according some “weight to the fact that the stop or
detention took place in a ‘high crime area’
[citation] . . . this fact alone should not be deemed
sufficient to support the intrusion. A
day-old burglary report does not transform a residential neighborhood into a no
man’s land in which any passerby is fair game for a roving police
interrogation: ‘To hold that police
officers should in the proper discharge of their duties detain and question all
persons in that location . . . would for practical purposes
involve an abrogation of the rule requiring substantial circumstances to
justify the detention and questioning of persons on the street.’ [Citations.]
(Ibid.)
Here,
Agent Kwan justified the detention of defendant and his companion based on
their presence in a particular location after dark, without any reasonable
suspicion based on their specific actions.
Again, we quote from the magistrate’s factual findings: “I think this
rests on three guys in the corner in an area that has an elevated crime rate,
with no good business, in a corner in a dim parking lot with no vehicles.†In favor of the magistrate’s ruling is that,
unlike in Tony C., defendant and his
companions were sitting on the back wall of a parking lot at night rather than
walking along a public street during daylight hours. In opposition to the magistrate’s ruling is
that, unlike in Tony C., the
arresting officers here did not have information about any specific crimes of
which they suspected defendant and his companions.
In
were standing on a sidewalk in a high crime residential area at 3:00 a.m. The defendant was leaning into a car parked
on the street in nearly total darkness (the street lights were not working),
talking with the car’s occupants. The
officer parked behind the car and shined his patrol car’s spotlight on the
group. The occupants of the car ducked
down below window height and the defendant took off running. The officer pursued and detained the
defendant and found cocaine on his person during a routine pat down for
weapons. The Supreme Court concluded
that, under the totality of the circumstances known to the officer, the
detention was legal. This was because of
the following facts: “[T]he area’s
reputation for criminal activity, the presence of two people near a parked car
very late at night and in total darkness, and evasive conduct not only by [the]
defendant but by the two occupants of the parked
car . . . .†(
The court cited to other cases specifically endorsing the following
facts as suspicious, though not necessarily sufficient by themselves to justify
detention. First is the area’s
reputation for criminal activity.
“ . . . mere presence in a high crime area is not,
standing alone, ‘sufficient to justify interference with an otherwise
innocent-appearing citizen . . . [however] we must
allow . . . [peace officers] . . . to
give appropriate consideration to their surroundings and to draw rational
inferences therefrom . . . .’ [Citation.]â€
(Id. at p. 241.) Second is the time of night. “‘Three a.m. . . . is
both a late and an unusual hour for anyone to be in attendance at an outdoor
social gathering. . . . ’â€
(Ibid.) Here, as in Souza, defendant and the other two men were in a high-crime area
after dark. However, the time was 8:50
p.m. rather than 3:00 a.m., the parking lot was lit, if dimly, by a light on a
lamp post, the men were not doing much of anything, and it is not clear whether
defendant was “fleeing†at all. We find
these facts to be, if not quite as innocuous as those in In re Tony C., very similar to those in People v. Aldridge (1984) 35 Cal.3d 473 (Aldridge), which the Souza
court examines for its dissimilarity to the Souza
facts.
In
People to justify a detention were that it was nighttime, the detention took
place in the parking lot of a liquor store known for “continuous drug
transactions,†and that, when the police car entered the parking lot, the
defendant and his companions slowly disbursed, walking away and eventually
running to avoid contact with police.
These factors are functionally identical to those cited by the People in
the current case. In holding that the
detention did not comply with the Fourth Amendment, our Supreme Court stated
that “Whether considered separately or together, these factors do not justify
the detention. First, being in the area
of a liquor store at 10:15 p.m. . . . is neither unusual or
suspicious. [Citation.] Next, we have explained that persons may not
be subjected to invasions of privacy merely because they are in or passing
through a ‘high crime area.’
[Citations.] . . . A history of past criminal
activity in a locality does not justify suspension of the constitutional rights
of everyone, or anyone, who may subsequently be in that locality.†(Aldridge,
supra, 35 Cal.3d at pp. 478-479.)
For
the same reasons, defendant’s mere presence in a parking lot in a high crime
area at 8:50 p.m. with two other men, even if we presume that he attempted to
avoid contact with law enforcement, does not justify the detention. Defendant had the right to sit on a wall with
two other people behind a local market, even at night, without being seized by
law enforcement. He had a right to walk
out of that parking lot and away from the investigators if he so desired. Therefore, the search was unconstitutional,
defendant’s motion to suppress should have been granted and the case should
have been dismissed.
>
The
superior court’s ruling granting the suppression motion and dismissing the case
under section 995 is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.
name="_ftn1" title=""> [1] All section references are to the Penal Code
unless otherwise indicated.
name="_ftn2" title=""> [2] On October 13, 2011, the People filed an
earlier complaint on these charges, in case No. RIF1105358. The preliminary hearing in that matter was
held on December 6, 2011, before the honorable Judge H.A. Staley. Defendant was held to answer. On February 21, 2012, the honorable Judge W.
Charles Morgan heard and granted a section 1538.5 motion to suppress the
evidence. The People then dismissed the
case and refiled it on February 24, 2012, under its current case No. RIF201488.
