P. v. Tyars
Filed 9/10/13 P. v. Tyars CA2/2
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DEWAYNE MICHAEL TYARS et al.,
Defendants and Appellants.
B240804
(Los Angeles
County
Super. Ct.
No. GA082719)
APPEALS
from judgments of the Superior Court
of
County.
Teri Schwartz, Judge. Affirmed.
Mark
S. Givens, under appointment by the Court of Appeal, for Defendant and
Appellant Dewayne Michael Tyars.
Richard
L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant Justin David Tyson.
Jennifer
Peabody, under appointment by the Court of Appeal, for Defendant and Appellant
Kenneth Melvin Battle.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Dewayne
Michael Tyars (Tyars), Justin David Tyson (Tyson) and Kenneth Melvin Battle (Battle)
were charged with first degree burglary
and possessing burglary tools. Tyars was also charged with receiving stolen
property. They filed a motion to
suppress evidence obtained during a detention following a traffic stop. After the motion was denied, they entered
pleas and appealed.
Tyars contends that the motion to
suppress should have been granted. We
disagree. Our review of the record
reveals that his detention was permissible under Fourth Amendment principles.
Appointed counsel for Battle and
Tyson each filed briefs pursuant to People
v. Wende (1979) 25 Cal.3d 436 (Wende)
that raised no issues and requested that we conduct an independent review of
the record. We notified Battle
on October 16, 2012, and
Tyson on August 30, 2012,
of the briefs filed by counsel and gave each of them an opportunity, within 30
days, to file a brief or letter identifying arguments for us to consider. That time elapsed, and they submitted no
briefs or letters. We reviewed the
entire record and found neither error nor arguable issues.
The
judgments are affirmed.
FACTS
The
detention and search
On March 10, 2011, at 8:46
a.m. in the City of Arcadia,
W. Chu called 911 to report that two Black males in their 20’s were attempting
to break into his house through a rear window.
The first male was wearing a light blue shirt and dark colored
pants. The second male was wearing a
light colored polo shirt with some print on it.
and walked east on Arborlada Drive
toward San Carlos Road.
San Carlos
Road intersects Orange
Grove Avenue, which is the dividing line between Arcadia
and the City of Sierra Madre. On the Sierra Madre side of Orange
Grove Avenue, the street that was San
Carlos Road continues on but is named Mountain
Trail Avenue.
At 8:47
a.m., Sierra Madre Police Officer Henry Amos was patrolling in
Sierra Madre, an area that was predominantly Asian and Caucasian. He was monitoring a second radio in his car
that was tuned to the frequency of the Arcadia Police Department and heard a
broadcast about a burglary in progress.
The dispatcher identified the suspects as two Black males and said that
one of the suspects was wearing a light blue shirt and wearing dark pants.
said the suspects were walking away from the scene in the direction of San
Carlos Road.
Within a minute, Officer Amos parked 20 feet from the intersection of Mountain
Trail Avenue and Orange
Grove Avenue.
A few minutes later, he saw a white Ford Taurus travel northbound on San
Carlos Road and stop at Orange
Grove Avenue.
A Black male, later identified as Battle,
was the driver.
title="">[3] A second Black male, later identified as
Tyson, was in the front passenger seat and wore a dark colored shirt. The Taurus turned east onto Orange
Grove Avenue.
Officer Amos saw that the side and rear windows were tinted and
constituted a Vehicle Code infraction.
He followed. At 8:58 a.m. he ran the license plates and learned
that the Taurus was registered in the City of Redlands. The Taurus turned on Santa
Anita Avenue headed south toward the 210 freeway,
which Officer Amos found odd. To get to
that freeway, a local would have taken San Carlos Road
south to Foothill
Boulevard where there was a closer on-ramp.
At 8:58 a.m., just after the Taurus turned onto Santa
Anita Avenue, Officer Amos conducted a traffic
stop based on the window tinting. He
approached the vehicle and asked Battle
to roll down all the windows. Battle
did so. At that point, Officer Amos saw
Tyars in the back seat. He was wearing a
light blue shirt and dark blue pants, and he matched the description of one of
the burglary suspects. Officer Amos
asked if Battle had a valid driver’s license.
He said no. Under Officer Amos’s
department policy, he could have arrested Battle for both the window tinting
and driving without a valid driver’s license, and he could have had the vehicle
towed away.
title="">[4]
Officer Amos asked all of the
occupants of the Taurus to produce identification. They complied. After that, the colloquy turned to what
Tyars, Tyson and Battle were doing in the area.
Tyson said that they had been handing out business cards related to a
door-to-door sales business. Officer
Amos returned to his patrol car and requested that the Sierra Madre dispatcher
inform the Arcadia Police Department that a person who matched the description
of one of the burglary suspects had been detained during a traffic stop. By that time, Officer Amos’s partner and
supervisor from the Sierra Madre Police Department had arrived on the
scene. They proceeded to wait for the
Arcadia police.
Detective Scott Elenberger from the
Arcadia Police Department arrived at the scene a few minutes later, which was
approximately 9:02 a.m. Officer Amos
handed the identification cards produced by Tyars, Tyson and Battle over to
Detective Elenberger and explained everything that had transpired. More Arcadia police officers showed up at the
scene to assist.
Officer Amos returned to the Taurus
and obtained the keys to the vehicle from Battle because he lacked a valid
driver’s license.
title="">[5] The Arcadia police spoke to Officer Amos’s
supervisor. At about 9:05, they decided
to conduct a felony “high risk traffic stop†because a burglary of an occupied
residence is a serious felony. They had
to wait for units to arrive to block off the streets and detain the suspects
safely. Once the streets were secured,
Tyars, Tyson and Battle were ordered out of the Taurus one at a time at
gunpoint. By 9:14 a.m., they had all
been extracted from the Taurus.
Subsequently, they were handcuffed and placed into separate patrol cars.
At about 9:19 a.m., police officers
drove Mr. and Mrs. Chu to the scene to make identifications. Mr. Chu identified Tyars based on the clothes
he was wearing. Police officers searched
the Taurus and found tools, cellular telephones, and two pairs of
binoculars. They also found a tan jacket
that had stripes.
Tyars, Tyson and Battle all wore
shirts without collars.
The
amended information
The Los Angeles County District
Attorney filed an amended information charging Tyson, Battle, and Tyars with
first degree burglary (Pen. Code, § 459)
(count 1) and possession of burglary tools (§ 466) (count 2). Tyars was also charged with receiving stolen
property (§ 496) (count 4). It was
alleged that Tyson had two prior convictions within the meaning of the Three
Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and one prior
serious felony conviction (§ 667, subd. (a)(1)), and he had served three prior
prison terms (§ 667.5, subd. (b)); Battle had two prior convictions within the
meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)) and one prior serious felony conviction (§ 667, subd. (a)(1)), and he
had served two prior prison terms (§ 667.5, subd. (b)); and Tyars had one prior
conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)), and one prior serious felony conviction (§ 667, subd.
(a)(1)), and had served two prior prison terms (§ 667.5, subd. (b)).
The
motion to suppress
Tyson filed a motion to suppress
evidence obtained during the detention because it was unnecessarily prolonged
and therefore not constitutional. Battle
and Tyars filed a joinder. The trial
court held a hearing. It denied the
motion after finding that the detention was lawful.
Tyson and Battle each pleaded no
contest to count 1. In addition, they
admitted to a prior conviction for purposes of sections 667, subdivisions (b)
through (i) and section 1170.12, subdivisions (a) through (d). Those admissions also supported one
allegation pursuant to section 667, subdivision (a)(1). Count 2 and the other enhancement allegations
were dismissed. Tyson and Battle each
received nine years in state prison comprised of the lower base term of two
years, which was doubled pursuant to the Three Strikes law, and a consecutive
five-year term for the prior serious felony conviction enhancement. The trial court awarded Tyson and Battle 398
actual days of presentence custody credit and 60 days of local conduct credit
for a total of 458 days of presentence custody credit each.
Tyars pleaded no contest to counts
1 and 3. The trial court dismissed count
2 and the enhancement allegations. Tyars
was sentenced to a total of four years eight months in state prison, comprised
of a middle base term of four years in count 1, and a consecutive eight-month
term (one-third the midterm) in count 3.
The trial court awarded Tyars one day of actual custody credit.
These
timely appeals followed.
DISCUSSION
I. Tyars.
According
to Tyars, the police lacked reasonable suspicion that he had committed a crime
and therefore his detention was unlawful.
In addition, he contends that he was subjected to a de facto arrest
without probable cause. As a result, he
argues that the trial court erred when it denied his motion to suppress. When reviewing the denial of a motion to
suppress, the trial court’s factual findings are tested for substantial
evidence and its application of the law to those facts is examined de
novo. (People v. Williams (1988) 45 Cal.3d 1268, 1301.) After review, we conclude that the motion to
suppress was properly denied.
A.
A detention
is reasonable 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.) The circumstances apparent to the
officer must cause him to suspect that (1) a crime has occurred, is occurring,
or is about to occur, and (2) the person he intends to detain is involved in
criminal activity. (In re Tony C. (1978) 21 Cal.3d 888, 893, superseded by statute on
other grounds as stated by In re
Christopher B. (1990) 219 Cal.App.3d 455, 460, fn. 2.) “An
investigatory stop exceeds constitutional bounds when extended beyond what is
reasonably necessary under the circumstances that made its initiation
permissible. [Citation.] Circumstances which develop during a
detention may provide reasonable suspicion to prolong the detention. [Citation.]
There is no set time limit for a permissible investigative stop; the
question is whether the police diligently pursued a means of investigation
reasonably designed to confirm or dispel their suspicions quickly. [Citations.]â€
(People v. Russell (2000) 81
Cal.App.4th 96, 101.) “During the
traffic stop, an officer may ‘“take such steps as [are] reasonably necessary to
protect [his] personal safety and to maintain the status quo during the course
of the stop.â€â€™ [Citation.] Reasonable steps may include temporary
handcuffing and transportation in a police car.
[Citations.]†(
775, 785-786 (Torres).)
For
purposes of this appeal, Tyars concedes that the traffic stop of the Taurus was
justified because it had unlawful window tinting.
lawful basis for converting the routine traffic stop into a high risk traffic
stop, or for extending the detention to allow time for Mr. and Mrs. Chu to make
field identifications of the suspects.
We disagree.
The
specific, articulable facts gave rise to a reasonable suspicion that Tyars had
burglarized the Chus’ home: the suspects
were seen heading on foot to San Carlos Road;
within minutes of the burglary, Officer Amos saw two Black males driving
northbound on San Carlos Road away from the direction of the burglary; the
dispatcher said that the suspects were two Black males; the Taurus was
registered in Redlands, which is not a nearby city; it appeared that the Taurus
was headed toward the 210 freeway, but the route taken by the driver was not
the route that a local would have taken to get to that freeway; Tyars’s
clothing matched the description of the clothing worn by one of the
suspects. At that point, the
Constitution allowed the officers to detain Tyars as well as Tyson and Battle
until the Chus could make field identifications. (People
v. Harris (1975) 15 Cal.3d 384, 391 [“The officers may call or escort the
witness to the detention scene for an immediate viewing of the suspectâ€].) The record reveals that the police officers
secured the scene and brought the Chus to the scene as quickly as
possible. Thus, the length of the
detention was reasonable because the police acted diligently to either confirm
or dispel their suspicions. Moreover, it
“was [not] unreasonable for the [police] to secure [their] personal safety by
placing [Tyars] in the patrol car pending†the arrival of the Chus for a field
identification. (Torres, supra, 188
Cal.App.4th at p. 786; People v.
Soun (1995) 34 Cal.App.4th 1499, 1517 (Soun).)
Our conclusion is consistent with
385 (Conway). In that case, an officer received a dispatch
about a burglary in progress at a location that was a quarter mile away. The dispatch explained that two suspects had
been seen in a garage. There was no
description of the suspects, and there was no mention of a car. The officer proceeded toward the area. It was early, about 3:00 a.m. He saw a brown car turn on a street. Inside the brown car, he saw an older Black
male and a young White male. There was
no other traffic. The officer conducted
a stop less than two minutes from the time he heard the dispatch. His intent was to identify the occupants of
the car and have the burglary victim look at them. (Id.
at pp. 387–388.) The court held
that “it was objectively reasonable for the officer to suspect the car’s
occupants were involved in the burglary.â€
(Id. at p. 390.) Here, the police officers had more
information at their disposal than the officer in Conway because they had a description of the suspects, including
what one of the suspects was wearing.
And like in Conway, the
traffic stop was made within minutes of a nearby burglary.
According to Tyars, “there were far
more specific and articulable facts that were
inconsistent with
Battle, Tyson, and Tyars being the perpetrators of the burglary. None of the three was wearing a collared polo
shirt like the victims had reported.
[Citation.] Also, none of them
was wearing the described patterned or striped shirt. [Citation.]
Additionally, the victims reported that there were two perpetrators, not
three. Moreover, the victims reported
that the burglary suspects were traveling on foot in an Eastbound direction
[citation], not driving in a vehicle in a Northbound direction . . .â€
These
points do not shake our conclusion.
Regardless of whether his shirt had a collar, Tyars otherwise fit the
description of the suspect, i.e., he was a young Black male wearing a blue
shirt and dark pants. That there were
three males in the Taurus is not inconsistent with the report of two burglary
suspects. Officer Amos could have
reasonably surmised that the third male in the Taurus was the getaway driver,
the look-out or both. While it is true
that the suspects were seen leaving the scene on foot, it was reasonable to
conclude that they eventually got into a vehicle. And even though the suspects were seen
traveling eastbound, they were headed toward San Carlos Road, which was a
north-south street. Thus, it was not
inconsistent that the victims described the suspects as traveling east.
We recognize that the dispatcher’s
description of the second suspect’s clothing did not match what Tyson or Battle
were wearing. But Officer Amos could
have surmised that the description of the clothing was mistaken, or that there
was a rational explanation for the discrepancy.
The bottom line is that this one mismatch of information was superficial
given all of the other suspicious facts.
It is noteworthy that officers eventually found a tan jacket with
stripes. It is plausible that one of the
suspects was wearing the jacket, and that Mrs. Chu had seen that jacket but had
mistakenly believed that it was a tan polo shirt with print on it.
B. De
facto arrest.
Tyars contends that when the officers handcuffed him and
placed him into a police car pending the field identification, it was a de
facto arrest without probable cause and that any evidence gathered after must
be suppressed.
We disagree.
“When a detention becomes overly
intrusive—by becoming unreasonably prolonged or involving unreasonable
protective measures, for example—it evolves into a de facto arrest. [Citation.]
An arrest must be justified by probable cause. [Citation.]â€
(Torres, supra, 188 Cal.App.4th at p. 786; People v. Gomez (2004) 117 Cal.App.4th 531, 538 [“A detention that
is unreasonably prolonged amounts to a de facto arrest that must be supported
by probable cause to be constitutionally validâ€].) Evidence found during a search incident to an
unlawful arrest must be excluded. (4
Witkin & Epstein, Cal. Criminal Law (3d ed. 2000), Pretrial
Proceedings, § 14, p. 212.) Assuming for
the sake of argument that the detention was overly intrusive, the trial court
did not err. The window tinting
“violation that led to the initial detention . . . supplied probable
cause for [Tyars’s] de facto arrest.†(
In any event, we conclude that
Tyars was not subjected to a de facto arrest because the police officers used
the least intrusive means reasonably available under the circumstances to
confirm their suspicions. (
intrusive detention to be lawful. There,
the defendant was removed from a “car at gunpoint by a large number of police
officers, was forced to lie on the ground, was handcuffed and placed in a
patrol car, was transported from the site of the stop a distance of three
blocks to a parking lot, and then was held at the parking lot for up to an
additional thirty minutes, all without being told why he had been stopped or
being permitted to communicate with his confederates.†(Id.
at p. 517.) Here, Tyars was not
removed from the site of the stop. And
by Tyars’s own reckoning of the evidence, he was placed in a patrol car
sometime between 9:06 a.m. and 9:14 a.m., and that the Chus viewed the three
suspects sometime between 9:24 a.m. and 9:30 a.m. Less than 30 minutes transpired between the
high risk traffic stop and the identification.
The detention did not exceed or even reach the boundary of what is
permissible. In our view, the police
proceeded with as much speed and efficiency as possible as they waited for
units to arrive, closed off the streets, extracted Tyars, Tyson and Battle in a
safe manner, and then gave the Chus an opportunity to make
identifications.
II. Tyson and Battle.
By virtue of counsel’s compliance
with the Wende procedure and our
review of the record, Tyson and Battle have received adequate and effective
appellate review of the judgment entered against them. (Smith
v. Robbins (2000) 528 U.S. 259, 278; People
v. Kelly (2006) 40 Cal.4th 106, 109–110.)
DISPOSITION
The
judgments are affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________, P. J.
BOREN
_______________________________, J.
CHAVEZ
In the
transcript of the 911 call, Mr. Chu says that the first suspect was wearing “a
light blue shirt.†Mrs. Chu then took
the phone. She reiterated that the first
suspect was wearing a light blue shirt.
When asked what color clothing the second suspect was wearing, she
stated, “You know, he’s also got a polo shirt.
It was lighter colored with some print on it.â€
Officer
Amos at first did not recall hearing a description of the second suspect. He later acknowledge that in his report he
wrote that one suspect was described as wearing a light blue “polo-type†shirt, and that the other suspect was
described as wearing dark pants and a light-colored shirt. Arcadia Police Officer Kevin
Fox testified that the first suspect was described as wearing a blue shirt and dark pants, and
the second suspect was
described by the dispatcher as wearing a light colored shirt with stripes.
