People v. Toler CA2/2 ( 2021 )

Filed 8/23/21 P. v. Toler CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B304879
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA476946)
v.
JAMES OTIS TOLER, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Craig E. Veals, Judge. Affirmed.
Justin Behravesh, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Michael C. Keller and
Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
James Otis Toler, Jr. appeals the judgment entered
following a jury trial in which he was convicted of one count of
possession of a firearm by a felon. (Pen. Code,1 § 29800, subd.
(a)(1).) Appellant admitted suffering a prior serious or violent
felony conviction pursuant to the Three Strikes law. (§§ 667,
subd. (d) & 1170.12, subd. (b).) The trial court sentenced
appellant to four years in state prison.
Appellant contends the trial court erroneously denied his
motion to suppress evidence under section 1538.5. We disagree
and affirm the judgment of conviction. Appellant further seeks,
and respondent does not oppose, appellate review of the sealed
record of the hearing pursuant to Pitchess v. Superior Court
(1974) 11 Cal.3d 531 (Pitchess) to determine whether police
personnel records were improperly withheld from discovery.
Having conducted our review of the in camera proceedings, we
find no abuse of discretion.
FACTUAL BACKGROUND
On July 29, 2018, around 12:35 a.m., Los Angeles Police
Officers Matthew Bryant and Joel Dominguez were on patrol on a
gang enforcement detail in the area of 84th Street and Vermont
Avenue. The officers, who were in full uniform and driving a
marked police vehicle, were investigating a shooting that had
occurred in that neighborhood three or four hours earlier.
As Officer Bryant drove east on West 84th Street, he saw
appellant standing in the street next to the open driver’s side
door of a vehicle that appeared to be double parked. As the patrol
car drew closer, appellant bent down and placed on the ground a
cup, which Officer Bryant believed to contain alcohol. He
1 Undesignated statutory references are to the Penal Code.
2
remained bent over as he appeared to shift his weight to the left.
Officer Bryant pulled up next to appellant and asked him if he
was okay and what he was doing. Without changing his position,
appellant responded that he was just fixing his sock.
It appeared to the officer, however, that appellant was
attempting to conceal a firearm or contraband. Officer Bryant
exited the patrol vehicle, and standing about three or four feet
away from appellant, ordered him to turn around and place his
hands behind his back. But instead of complying with the
command, appellant stood up, turned, and immediately “took off
running.” Officers Bryant and Dominguez chased him. As
appellant ran, he appeared to be holding onto his waistband near
the left pocket of his pants with his left hand.
Appellant continued to run even as the officers repeatedly
ordered him to stop. Officer Dominguez, who was running
directly behind appellant, could see him holding a shiny object
that looked like a gun in his left hand. Appellant ran between
two houses, tripped over some bicycles, and fell twice. When he
got up after the second fall, Officer Dominguez could no longer
see anything in his hand, and video from the officer’s body-worn
camera showed a firearm on the ground where appellant had
landed. Officer Dominguez used his TASER to subdue appellant.
After appellant had been taken into custody, a stainless steel
revolver was recovered in the exact spot where appellant had
fallen the second time. The firearm was fully loaded and in good
working condition.
3
DISCUSSION
I. The Trial Court Properly Denied the Motion to
Suppress Evidence
A. Evidence presented at the suppression hearing
At the hearing on appellant’s motion to suppress evidence
of the gun, Officer Bryant testified that in the early morning
hours of July 29, 2018, he and Officer Dominguez were on patrol
conducting an investigation of a shooting in which two of the
victims were members of the Hoover criminal street gang. As
they drove east on 84th Street, Officer Bryant observed a Dodge
Charger he recognized as belonging to Hoover gang member
Javonnie Murphy double parked on the street facing west.
Murphy was standing nearby on the sidewalk, and appellant was
standing in the middle of the street next to the open driver’s side
door of the Dodge Charger.
When appellant did not stand up after setting his cup down
and remained bent over as he shifted his weight, Officer Bryant
became suspicious and asked him what he was doing. Appellant
replied without standing up that he was fixing his sock. But the
officer suspected appellant was attempting to conceal a firearm
or contraband. Intending to detain appellant, Officer Bryant
exited the patrol car and ordered appellant to turn around and
place his hands behind his back. Appellant turned around, but
then immediately “just took off running.”
There was no testimony about the recovery of the firearm.
B. The trial court’s ruling on the motion to suppress
The trial court observed that because there was no search
of appellant that resulted in the recovery of a firearm, the
evidence presented at the hearing seemed to bring the case
within the scope of California v. Hodari D. (1991) 499 U.S. 6214
(Hodari). Defense counsel disagreed, asserting that the initial
detention⎯which occurred when the officer ordered appellant to
turn around and put his hands behind his back⎯was illegal
because there was no reasonable suspicion to stop or detain
appellant in the first place. According to defense counsel, the
video from the officer’s body-worn camera showed that the car
was not double parked, there was no cup, appellant was not
standing in the middle of the street, and he was in fact, touching
his sock. Thus, the later discovery of the gun flowed from an
illegal detention and must be suppressed as the fruit of the
poisonous tree.
Following the parties’ arguments and its own review of
Officer Bryant’s body camera video, the trial court rejected the
fruit of the poisonous tree argument and denied the motion to
suppress on the ground that the gun had been abandoned and
there had been no search. The court explained:
“So even if, for the sake of argument, that the initial
detention was problematic, there are two possible scenarios. No
one testified as to how this gun was recovered. So I’d [have to]
assume one of two things happened. Either [appellant] ran and
discarded the weapon before he was captured or [appellant] never
had a weapon, and the weapon was there when they searched the
area. It’s got to be one or the other. There really are no other
rational deductions I can make.
“Now, if [appellant] never had the weapon, then I don’t
know that he would have any legitimate expectation of privacy to
assert. I mean, he runs. He’s captured. And there’s a weapon
found. If he didn’t have it, he didn’t have it. So I don’t see how
he would be in a position to challenge [that]. . . .
5
“Under the second scenario, if he had it and discarded it
then I think you have a Hodari . . . situation . . . where, if a
person abandons an item then they essentially lose their
expectation of privacy. . . . They abandon it. So they can’t
challenge that.”
C. Legal analysis
A motion to suppress evidence under section 1538.5 must
be assessed under Fourth Amendment principles prohibiting law
enforcement officers from engaging in unreasonable searches and
seizures. (People v. Macabeo (2016) 1 Cal.5th 1206, 1212; People
v. Maury (2003) 30 Cal.4th 342, 384.) “ ‘In reviewing a trial
court’s ruling on a motion to suppress evidence, we defer to that
court’s factual findings, express or implied, if they are supported
by substantial evidence. [Citation.] We exercise our independent
judgment in determining whether, on the facts presented, the
search or seizure was reasonable under the Fourth
Amendment.’ ” (People v. Silveria and Travis (2020) 10 Cal.5th
195, 232, quoting People v. Lenart (2004) 32 Cal.4th 1107, 1119;
People v. Tully (2012) 54 Cal.4th 952, 979 [trial court’s factual
findings reviewed under the deferential substantial evidence
standard, and reviewing court must accept trial court’s resolution
of disputed facts and credibility determinations].) “Accordingly,
‘[w]e view the evidence in a light most favorable to the order
denying the motion to suppress’ [citation], and ‘[a]ny conflicts in
the evidence are resolved in favor of the superior court ruling’
[citation].” (Tully, at p. 979.)
1. Appellant either abandoned the gun or never had it in
his possession; either way, he had no reasonable expectation of
privacy subject to Fourth Amendment protection
6
In denying the motion to suppress, the trial court found
that the firearm was not recovered as a result of any search of
appellant. Rather, the gun had either been abandoned or it was
never in appellant’s possession, and appellant had no
constitutionally protected expectation of privacy.
“The touchstone of Fourth Amendment analysis is whether
a person has a ‘constitutionally protected reasonable expectation
of privacy.’ ” (California v. Ciraolo (1986) 476 U.S. 207, 211;
Robey v. Superior Court (2013) 56 Cal.4th 1218, 1224.) “ ‘ “An
illegal search or seizure violates the federal constitutional rights
only of those who have a legitimate expectation of privacy in the
invaded [space] or the seized thing. [Citation.] The legitimate
expectation of privacy must exist in the particular area searched
or thing seized in order to bring a Fourth Amendment
challenge.” ’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1141;
People v. Stipo (2011) 195 Cal.App.4th 664, 668.) In the context
of a motion to suppress under the Fourth Amendment, it is the
defendant’s burden to establish a legitimate expectation of
privacy and the prosecution’s burden to demonstrate the
reasonableness of the search. (People v. Parson (2008) 44 Cal.4th
332, 345 (Parson).) “It has long been settled, however, that a
warrantless search and seizure involving abandoned property is
not unlawful, because a person has no reasonable expectation of
privacy in such property.” (Ibid.; People v. Daggs (2005) 133
Cal.App.4th 361, 365 (Daggs) [“search and seizure of abandoned
property is not unlawful because no one has a reasonable
expectation of privacy in property that has been abandoned”].)
Whether property has been abandoned is primarily a
question of intent, which is determined by objective
factors⎯including words, acts, and other objective facts⎯not the
7
subjective intent of the defendant. (Parson, supra, 44 Cal.4th at
p. 346; Daggs, supra, 133 Cal.App.4th at pp. 365–366.)
“ ‘ “ ‘Abandonment here is not meant in the strict property-right
sense, but rests instead on whether the person so relinquished
his interest in the property that he no longer retained a
reasonable expectation of privacy in it at the time of the search.’ ”
[Citations.]’ [Citation.] ‘The question whether property is
abandoned is an issue of fact, and the court’s finding must be
upheld if supported by substantial evidence.’ ” (Parson, at p. 346;
Daggs, at pp. 365–366.) “It is, of course, well established that
property is abandoned when a defendant voluntarily discards it
in the face of police observation, or imminent lawful detention or
arrest, to avoid incrimination.” (Daggs, at p. 365; People
v. Brown (1990) 216 Cal.App.3d 1442, 1451 [defendant’s act of
dropping bag while evading police supported finding that
defendant had abandoned the bag and lost any reasonable
expectation of privacy in its contents]; Hodari, supra, 499 U.S. at
pp. 623–624, 629 [drugs tossed away during police pursuit were
abandoned and lawfully recovered by police]; see Hester v. United
States (1924) 265 U.S. 57, 58 [“[t]he defendant’s own acts . . .
disclosed the [contraband]⎯ and there was no seizure in the
sense of the law when the officers examined the contents” after it
had been abandoned].)
Here, even if appellant accidentally dropped the gun when
he fell, he made no effort to reclaim the weapon when he got up,
but continued his flight from the police. Under these
circumstances, substantial evidence supports the trial court’s
determination that appellant had abandoned the gun and had no
reasonable expectation of privacy in it subject to Fourth
8
Amendment protection.2 (See Daggs, supra, 133 Cal.App.4th at
p. 367 [notwithstanding defendant’s subjective reasons for not
retrieving property, the failure to attempt to recover it is an
objective circumstance indicating abandonment]; In re Baraka H.
(1992) 6 Cal.App.4th 1039, 1048 [abandonment may be found
even when defendant does not intend “to permanently relinquish
control over the object” because it is the reasonable expectation of
privacy in the property, not the object itself, that is abandoned].)
Finally, the prospect of an illegal detention does not change
the analysis. Even if appellant dropped the gun and did not seek
to recover it because he was under threat of an illegal detention,
the officers’ recovery of the weapon did not constitute an illegal
search. “A defendant cannot immunize himself from damning
evidence by discarding that evidence on his subjective
assumption that an illegal search would follow his detention.”
(People v. Patrick (1982) 135 Cal.App.3d 290, 294 [rejecting
argument that abandoned contraband had been discarded due to
a threatened illegal detention and should be suppressed as
having been obtained in violation of the Fourth Amendment].)
2. Substantial evidence supports the trial court’s implied
finding that when appellant dropped the firearm he had not been
“seized” by police within the meaning of the Fourth Amendment,
2 Of course, if appellant never possessed the firearm in the
first instance, there could be no violation of his Fourth
Amendment rights when the police recovered the weapon. (See
Rakas v. Illinois (1978) 439 U.S. 128, 134 [Fourth Amendment
rights are personal rights, and a person aggrieved by damaging
evidence obtained in a seizure of another person’s property has
suffered no violation of his or her Fourth Amendment rights].)
9
and therefore recovery of the gun was not the fruit of the poisonous
tree
Appellant contends that because his encounter with Officer
Bryant before the pursuit constituted an unlawful detention, the
firearm appellant discarded should have been suppressed as fruit
of the poisonous tree. Appellant’s claim presents the same issue
the United States Supreme Court addressed in Hodari. That is,
whether, at the time he dropped the gun, “[appellant] had been
‘seized’ within the meaning of the Fourth Amendment.” (Hodari,
supra, 499 U.S. at p. 623.) If so, as appellant argues, the firearm
was the fruit of that seizure and the evidence of it should have
been excluded. But if not, the gun was abandoned by appellant,
lawfully recovered by the police, and thus properly admitted, as
discussed above. (Id. at pp. 624, 629.)
As Hodari recognized, courts “have long understood that
the Fourth Amendment’s protection against ‘unreasonable . . .
seizures’ includes seizure of the person.” (Hodari, supra, 499
U.S. at p. 624.) “A person is seized by the police and thus entitled
to challenge the government’s action under the Fourth
Amendment when the officer, ‘ “by means of physical force or
show of authority,” ’ terminates or restrains his freedom of
movement, [citations], ‘through means intentionally applied’
[citation].” (Brendlin v. California (2007) 551 U.S. 249, 254
(Brendlin).) While a police officer may effect a seizure by a show
of authority and without physical force, “there is no seizure
without actual submission; otherwise, there is at most an
attempted seizure, so far as the Fourth Amendment is
concerned.” (Ibid.) And as the high court recently declared, “The
common law distinguished the application of force from a show of
authority, such as an order for a suspect to halt. The latter does
10
not become an arrest unless and until the arrestee complies with
the demand. As the Court explained in Hodari D., ‘[a]n arrest
requires either physical force . . . or, where that is absent,
submission to the assertion of authority.’ ” (Torres v. Madrid
(2021) ___U.S.___ [141 S.Ct. 989, 995, 209 L.Ed.2d 190, 199],
quoting Hodari, at p. 626 (italics in original).)
In Hodari, upon seeing police approach, a group of
juveniles took flight. (Hodari, supra, 499 U.S. at pp. 622–623.)
One officer pursued Hodari on foot and saw him toss away what
appeared to be a small rock. (Id. at p. 623) A moment later the
officer tackled Hodari and arrested him. (Ibid.) The rock he had
discarded was determined to be crack cocaine. (Ibid.) The
Supreme Court held the seizure of the cocaine was lawful, despite
the state’s concession that the officer did not have a reasonable
suspicion to stop Hodari before he fled. (Id. at pp. 623, fn. 1, 629.)
As the high court explained, even if the officer’s commands and
pursuit qualified as a “ ‘show of authority,’ ” Hodari had not
submitted to the officer’s authority and had therefore not been
seized when he dropped the cocaine. (Id. at pp. 626, 629.)
Because Hodari did not submit to the officer’s commands, he was
not seized until he was tackled, and the cocaine which he
abandoned in flight was not the fruit of that seizure. (Id. at
p. 629.)
So it is in the instant case. When Officer Bryant ordered
appellant to turn around and place his hands behind his back,
appellant turned and immediately began to flee. Appellant
clearly did not yield to Officer Bryant’s show of authority for
purposes of the Fourth Amendment, particularly since he had to
turn away from Officer Bryant in order to run away from him.
By citing Hodari, the trial court implicitly found that appellant
11
had not been “seized” in the Fourth Amendment sense because he
had not been restrained by physical force nor did he submit to the
police officer’s authority. Substantial evidence supports the trial
court’s implied finding, to which we must defer. (People v.
Silveria and Travis, supra, 10 Cal.5th at p. 232 [appellate court
must defer to trial court’s implied factual findings on a motion to
suppress if they are supported by substantial evidence].)
Appellant, however, contends that as long as the officer’s
command would lead a reasonable person to believe that he or
she was not free to leave, the encounter constitutes a detention in
which the subject has been seized. (See United States v.
Mendenhall (1980) 446 U.S. 544, 554 [“a person has been ‘seized’
within the meaning of the Fourth Amendment only if, in view of
all of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave”]; People
v. Jones (1991) 228 Cal.App.3d 519, 523; People v. Verin (1990)
220 Cal.App.3d 551, 556.) Hodari, however, expressly rejected
this test under the circumstances present here, in which the
suspect does not yield to the police show of authority but instead
runs away. (Hodari, supra, 499 U.S. at pp. 627–628 [by stating
that a person has been seized “only if,” and not “whenever,” the
so-called Mendenhall test merely “states a necessary, but not a
sufficient, condition for seizure . . . effected through a ‘show of
authority’ ”].) The flaw in the Mendenhall test is that in cases
where physical force is absent, it omits the requirement that the
person actually submit to the show of authority in order for there
to be a seizure in the context of the Fourth Amendment. (Id. at
p. 628 [where show of authority does not result in person’s
acquiescence to police commands there is no seizure].)
12
Recently, our Supreme Court has also articulated the full
standard for determining whether a seizure has occurred: “In
situations involving a show of authority, a person is seized ‘if “in
view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to
leave,” ’ or ‘ “otherwise terminate the encounter” ’ [citation], and
if the person actually submits to the show of authority [citation].”
(People v. Brown (2015) 61 Cal.4th 968, 974, italics added,
quoting Brendlin, supra, 551 U.S. at pp. 254–255; People v.
Arebalos-Cabrera (2018) 27 Cal.App.5th 179, 186.)
Deferring, as we must, to the trial court’s factual findings,
we conclude there was no error in the trial court’s denial of the
motion to suppress evidence collected from the path along which
appellant ran before he was actually detained.
II. The Pitchess Hearing
The trial court granted appellant’s Pitchess motion for the
discovery of personnel information of Officers Dominguez and
Bryant pertaining to claims of “false reporting and dishonesty.”3
Following an in camera review of the documents, the trial court
found discoverable material and ordered it be provided to trial
counsel. Appellant has requested that this court independently
review the sealed records of the Pitchess hearing to assess
whether the trial court improperly withheld any discoverable
material from the defense. (People v. Landry (2016) 2 Cal.5th 52,
3 The minute order from the October 17, 2019 hearing
incorrectly states that appellant’s Pitchess motion was denied.
But the reporter’s transcript from the hearing reflects that the
court granted the motion and conducted an in-camera review of
documents produced by the custodian of records for the Los
Angeles Police Department.
13
73 (Landry); People v. Hughes (2002) 27 Cal.4th 287, 330
(Hughes); People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
“A trial court’s ruling on a motion for access to law
enforcement personnel records is subject to review for abuse of
discretion.” (Hughes, supra, 27 Cal.4th at p. 330; Pitchess, supra,
11 Cal.3d at p. 535.) We have reviewed the sealed transcript of
the proceedings and conclude that the trial court did not abuse its
discretion in refusing discovery on the basis of its conclusion that
no materials were relevant to appellant’s claims of false reporting
and dishonesty by Officers Dominguez and Bryant. (Landry,
supra, 2 Cal.5th at pp. 73–74; Hughes, at p. 330.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
14