People v. Johnson CA1/5 ( 2022 )

Filed 9/20/22 P. v. Johnson CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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8.1115(b). This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A163270
v.
MARCUS GARY JOHNSON,
(Solano County Super. Ct.
Defendant and Appellant.
No. FCR353742)
Marcus Gary Johnson was convicted of three counts of
felony identity theft with a prior identity theft conviction (Pen.
Code, § 530.5, subd. (c)(2); counts one to three)1 and one count of
forgery (§§ 473, subd. (a), 475, subd. (b); count four). On appeal,
Johnson challenges the denial of his motions to suppress
evidence, contends the trial court erred in admitting statements
he made to police without warnings required by Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda), and suggests that recent
ameliorative changes to the determinate sentencing law (§ 1170)
apply retroactively. The People concede the trial court erred in
denying one suppression motion and that reversal of Johnson’s
convictions on counts two, three and four is required. We agree
and remand for resentencing.
1 Undesignated statutory references are to the Penal Code.
1
BACKGROUND
On July 12, 2019, Johnson was a passenger in a car that
was stopped for a traffic violation. After the driver (Bagwell) was
arrested for driving on a suspended license, Bagwell consented to
a search of the car. In searching the car, Fairfield Police
Department officer Amanda Graham discovered Johnson was in
possession of identification cards and other identifying
information, including an electronic benefit transfer card, that
belonged to other people. This incident formed the basis for
count one.
Ten days later, Johnson was sitting in the passenger seat of
another parked car. On determining that the owner of the car
(Dorianna Mays) was on probation with a warrantless search
condition, Vacaville Police Department officer Matthew Taylor
conducted a probation search. On the passenger side of the car,
Taylor found a bag that contained a driver’s license belonging to
A.D. and four blank checks belonging to B.H. When Taylor asked
Johnson if the bag was his, Johnson replied affirmatively.
Johnson was arrested and a search, incident to his arrest,
revealed that he had a credit card belonging to B.H. in his pocket.
These facts formed the basis for counts two through four.
The parties stipulated that Johnson had suffered a prior
conviction for identity theft. The jury convicted Johnson on all
three counts of felony identity theft (with a prior identity theft
conviction) plus one count of forgery.
At sentencing, the trial court imposed the upper term of
three years for the principal term—count three—plus a
consecutive eight-month term (one-third the middle term) for
each of the two additional identity theft counts (counts one and
two). The court stayed punishment on count four (forgery). The
trial court imposed a split sentence (§ 1170, subd. (h)(5)(B)):
Johnson was to serve the first three years (of his aggregate four
2
years and four months sentence) in county jail and the remainder
of his sentence on mandatory supervision.
DISCUSSION
A.
Johnson contends that the trial court should have granted
his motion to suppress evidence discovered on July 12 as fruit of
an unlawful pat search. We disagree.
1.
In reviewing a suppression ruling, we defer to the trial
court’s factual findings if supported by substantial evidence. We
independently determine whether, on the facts so found, the
challenged search or seizure was reasonable under the Fourth
Amendment. (People v. Brown (2015) 61 Cal.4th 968, 975.)
Whether a search is reasonable must be determined based upon
the circumstances known to the officer when it was conducted.
(In re H.M. (2008) 167 Cal.App.4th 136, 144.)
During a lawful traffic stop, a police officer may detain both
the driver and any passengers (and order them out of the car)
without any additional cause to believe a passenger is involved in
criminal activity. (Arizona v. Johnson (2009) 555 U.S. 323, 327,
331 (Arizona); Maryland v. Wilson (1997) 519 U.S. 408, 413, 415.)
However, to justify a pat search of either the driver or a
passenger, the police must have a reasonable suspicion that the
person is “armed and dangerous.” (Arizona, supra, at pp. 327,
332.)
2.
In his motion to suppress, Johnson argued that he was
detained and searched, on July 12, without reasonable suspicion
or probable cause. At the suppression hearing, officer Graham
testified that she pulled over Bagwell’s Mercedes after observing
that the car was missing a front license plate and that Bagwell
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(the driver) had flicked a cigarette out the window. Johnson was
sitting in the front passenger seat.
On making initial contact with Bagwell, Graham
discovered that he was driving with a suspended license, so she
removed him from the car and detained him. Graham also
ordered Johnson to exit the vehicle, pat searched him, and
ordered him to sit on the curb. Graham admitted that she had no
reason to believe Johnson was armed or dangerous.
Bagwell consented to a search of his vehicle. During the
search, a second officer stood near Johnson. Graham found a
black bag between the car’s center console and the front
passenger seat. Inside the bag, Graham found personal
identification cards, electronic benefit transfer cards, printed
driver’s licenses, and other personal information belonging to
people other than Johnson or Bagwell.
Graham asked Bagwell if the bag was his, which Bagwell
denied. Bagwell said he had never seen the bag before. Graham
then placed Johnson under arrest. Incident to his arrest,
Graham searched Johnson and found, in his back pocket, a spiral
notebook that contained more personal identifying information,
including a social security number that matched an individual
whose information was also in the black bag. After Johnson was
given Miranda warnings, he told Graham that the bag did not
belong to him.
At the conclusion of the evidence, defense counsel argued
that Graham lacked probable cause to arrest Johnson and sought
only to suppress the notebook found on Johnson’s person.
Defense counsel did not seek to suppress the evidence found in
Bagwell’s car. The magistrate denied the motion.
Johnson later renewed his motion to suppress and filed a
motion to set aside the consolidated information, pursuant to
section 995. Johnson insisted he was unlawfully pat searched,
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but did not connect this assertion to the evidence obtained from
Bagwell’s car. In fact, Johnson’s arguments continued to focus
solely on suppressing the notebook discovered incident to his
arrest. The court denied Johnson’s motion.
3.
First, we agree with the People that Johnson forfeited his
current argument—that both the evidence obtained from
searching Bagwell’s car and the notebook found in Johnson’s
pocket must be suppressed because Graham conducted an illegal
pat search of Johnson—by failing to raise it below. (See Evid.
Code, § 353, subd. (a); People v. Silveria and Travis (2020) 10
Cal.5th 195, 235; People v. Polk (2010) 190 Cal.App.4th 1183,
1194-1195.)
Second, even if we assume (for the sake of argument) that
Johnson’s current argument was not forfeited, and that Johnson’s
pat search was unlawful, Johnson’s challenge fails because he
cannot show that an allegedly involuntary search of Bagwell’s car
violated his personal Fourth Amendment rights. (See Rakas v.
Illinois (1978) 439 U.S. 128, 133-134 (Rakas).)
It is settled that a defendant’s Fourth Amendment rights
are not infringed solely because the state was allowed to
introduce damaging evidence recovered from a third person’s
property, even if that search was unlawful. (Rakas, supra, 439
U.S. at p. 134.) To prevail on a motion to suppress, a defendant
bears the burden to prove he had a legitimate expectation of
privacy in the particular area searched or the property seized.
(Id. at p. 143; People v. Valdez (2004) 32 Cal.4th 73, 122; People v.
Williams (1992) 3 Cal.App.4th 1535, 1539.)
As a mere passenger in Bagwell’s car, Johnson failed to
meet his burden to show that he had a reasonable expectation of
privacy in Bagwell’s car sufficient to show that his personal
Fourth Amendment rights were violated by an allegedly unlawful
5
consent search. (See Rakas, supra, 439 U.S. at pp. 130-131 & fn.
1, 148-149; People v. Casares (2016) 62 Cal.4th 808, 835
[“legitimate expectation of privacy in a vehicle requires a showing
of a property or possessory interest therein”], disapproved on
other grounds by People v. Dalton (2019) 7 Cal.5th 166, 214;
People v. Valdez, supra, 32 Cal.4th at p. 122.)
Johnson suggests, in passing in his reply brief, that his
claim is actually that the police illegally searched the black bag
found inside Bagwell’s car and that he had a legitimate
expectation of privacy in the bag. (See People v. Schmitz (2012)
55 Cal.4th 909, 930.) Even if we assume this argument was
preserved on appeal, the record does not support his position.
The only evidence offered on this point at the suppression
hearing was that Bagwell owned the car, that Graham found the
black bag in between the front passenger seat (where Johnson
had previously been sitting) and the center console, that the bag
contained identification cards and other identifying information
for individuals who were not Johnson, and that both Bagwell and
Johnson explicitly disavowed ownership of the bag. Unlike in
People v. Koury (1989) 214 Cal.App.3d 676, 683, 690-691, Johnson
did not testify that he owned the black bag found in Bagwell’s
car. Nor did Bagwell or Johnson testify that Johnson had the bag
with him when he entered the car or otherwise explain how it
came to rest where it was found.
Both drivers and passengers have reduced expectations of
privacy in the interior of a car and its contents. (People v.
Schmitz, supra, 55 Cal.4th at pp. 920, 930.) Although the bag’s
location next to the passenger seat in Bagwell’s car is not
irrelevant (People v. Koury, supra, 214 Cal.App.3d at p. 686), we
conclude this evidence is insufficient to meet Johnson’s burden to
establish a legitimate expectation of privacy under the totality of
the circumstances.
6
Contrary to Johnson’s assertion, there is nothing fatally
inconsistent in allowing the People to simultaneously maintain
that Johnson possessed the items in the black bag while also
arguing Johnson failed to meet his burden to show he had a
legitimate expectation of privacy. (United States v. Salvucci
(1980) 448 U.S. 83, 91.)
Johnson has not demonstrated that the trial court erred in
denying his motion to suppress or his section 995 motion. We
need not separately consider Johnson’s argument that his trial
counsel provided ineffective assistance.
B.
Johnson also moved below to suppress certain evidence
obtained on July 22, pursuant to section 1538.5. He now
contends that, on that date, officer Taylor violated his federal
Fourth Amendment rights by prolonging his detention beyond
the time reasonably necessary to investigate Mays’s traffic
violation. The People concede that Johnson’s second detention
was unconstitutionally prolonged and we agree.
1.
A police detention is a seizure of an individual “strictly
limited in duration, scope, and purpose[.]” (In re Manuel G.
(1997) 16 Cal.4th 805, 821.) In Terry v. Ohio (1968) 392 U.S. 1(Terry), the Supreme Court established that circumstances short
of probable cause may justify a police officer briefly detaining a
person for questioning. (Id. at p. 22.) An individual may be
detained by the police “ ‘if there is an articulable suspicion that a
person has committed or is about to commit a crime.’ ” (Wilson v.
Superior Court (1983) 34 Cal.3d 777, 784.)
Because Terry detentions cannot be subjected to the
warrant procedure, they are instead tested against the Fourth
Amendment’s general proscription against unreasonable searches
and seizures. (Terry, supra, 392 U.S. at p. 20.) Accordingly,
courts must identify the government interest allegedly justifying
7
the intrusion and balance that need against the invasion the
search entails. (Id. at pp. 20-21.) The police officer must point to
“specific and articulable facts which, taken together with rational
inferences from those facts,” reasonably justify a particular
intrusion. (Id. at p. 21, italics added.)
Traffic violations justify a relatively brief investigatory
detention by police. (Rodriguez v. United States (2015) 575 U.S.
348, 354 (Rodriguez).) However, absent independent indications
of criminal activity beyond the initially observed infraction,
officers may not extend a stop’s duration beyond the time
reasonably necessary to attend to officer safety concerns and to
issue a ticket for the traffic violation. (Id. at pp. 350-351, 354.)
An officer is permitted to inquire into matters unrelated to the
suspected traffic violation (Arizona, supra, 555 U.S. at p. 333),
but may not do so in a way that prolongs the stop unless the
officer also has the reasonable suspicion demanded to ordinarily
justify an individual’s detention. (Rodriguez, supra, 575 U.S. at
pp. 355, 357-358.)
2.
Taylor testified, at the suppression hearing, that he
observed a black Nissan, with an expired registration tag, parked
in a parking lot. The car’s owner (Mays) was sitting in the
driver’s seat. Johnson was sitting in the front passenger seat.
On approaching the vehicle and initially contacting Mays, Taylor
learned that she was on probation and subject to a warrantless
search condition.
After learning of Mays’s probation status, Taylor decided to
conduct a probation search of her vehicle. Taylor had both Mays
and Johnson exit the car, pat searched Johnson for weapons, and
then instructed Johnson to sit at the curb about 15 feet away.
Another officer stood guard over Mays and Johnson while Taylor
searched Mays’s vehicle for approximately 23 minutes.
8
During the search of Mays’s car, Taylor discovered a black
bag on the floor in front of the passenger seat. The bag contained
a driver’s license for A.D., blank checks and a credit card in
B.H.’s name, counterfeit $100 bills, two methamphetamine pipes,
and a Social Security card, medical records and birth certificate
belonging to other individuals. After the search, Taylor asked
Johnson if the bag and its contents belonged to him. Johnson
answered affirmatively.
After this evidence was received, defense counsel argued
that Johnson’s detention was unduly prolonged because Johnson
had not been the target of the probation search. The magistrate
denied the suppression motion, explaining that the initial
detention was lawful based on Mays’s expired car registration
and that, on discovering Mays was on probation, Taylor was
authorized to remove and continue Johnson’s detention for the
more than 20 minutes that Mays’s car was searched.
Johnson later renewed his motion to suppress and filed a
motion to set aside the consolidated information (§ 995), which
the court denied.
3.
Johnson does not dispute that he was lawfully detained in
connection with Mays’s traffic violation. (Rodriguez, supra, 575
U.S. at p. 354; Arizona, supra, 555 U.S. at pp. 327, 331.)
Although his argument is not a model of clarity, we do not
understand him to be arguing that his detention was unduly
prolonged by Taylor’s discovery (during the initial interaction)
that Mays was on probation and subject to a warrantless search
condition or by Taylor’s order that Johnson exit the car.
(Arizona, supra, at p. 333; Maryland v. Wilson, supra, 519 U.S. at
pp. 413, 415; Rodriguez, supra, at pp. 355, 357-358.)
Instead, Johnson appears to argue that the Fourth
Amendment was violated when, after pat searching Johnson and
9
(apparently finding nothing), Taylor kept him detained for an
additional 23 minutes while searching Mays’s car. Although
Taylor was justified in searching the Nissan because he knew of
Mays’s probation search condition (Samson v. California (2006)
547 U.S. 843, 846), the People correctly concede that the record
contains no evidence of an independent basis justifying Johnson’s
continued detention.
Taylor’s testimony suggests he believed that Johnson’s
mere presence in Mays’s car (with Mays who was subject to a
probation search condition) justified detaining Johnson for officer
safety purposes as long as necessary to conduct the probation
search. We know of no blanket rule (and the People have not
cited one) allowing police officers to routinely detain third
parties—who are not themselves subject to probation search
conditions—in such a manner. (See People v. Gutierrez (2018) 21
Cal.App.5th 1146, 1157, 1159-1161 (Gutierrez); People v. Glaser
(1995) 11 Cal.4th 354, 373-374 (Glaser) [declining to adopt a
general rule, in the search warrant context, that mere presence
alone at premises to be searched justifies detention to determine
identity and connection].)
In some circumstances when officers conduct a probation
search or execute a search warrant, the presence of an unknown
person (not the target of a search) may reasonably justify a brief
detention of that unknown person—in order to identify the
unknown person and protect searching officers. (See Glaser,
supra, 11 Cal.4th at pp. 374-375, 367 [approving limited
detention of two minutes or less in search warrant context];
Gutierrez, supra, 21 Cal.App.5th at pp. 1157, 1160-1161; People v.
Matelski (2000) 82 Cal.App.4th 837, 852.) However, in refusing
to adopt a general rule in the search warrant context, our
Supreme Court reasoned that blanket approval of third party
detentions during searches would present too much risk that
officers would simply rely on guilt by association in order to stop
10
and frisk anyone seen near prospective criminal activity. (Glaser,
supra, at p. 374.)
Furthermore, it is now well established that even a lawful
detention (justified at its outset) becomes unconstitutional when
it is extended beyond the time reasonably necessary under the
circumstances without an independent articulable suspicion of
criminal conduct. (Rodriguez, supra, 575 U.S. at pp. 350-353
[detention pursuant to traffic stop unreasonably prolonged by
seven or eight minutes (to obtain sniff by police dog) after
violation resolved with warning]; Gutierrez, supra, 21
Cal.App.5th at pp. 1159-1160 [detention of third party present at
probationer’s home unreasonably prolonged when it lasted more
than 30 minutes after pat search revealed third party had no
weapons].)
We would normally engage in a detailed analysis weighing
the extent of the government’s intrusion against the
government’s justifying interests. (See Gutierrez, supra, 21
Cal.App.5th at p. 1159; Glaser, supra, 11 Cal.4th at p. 365.)
Here, however, the People concede that the extent of the
government’s intrusion outweighs any interests justifying
Johnson’s continued detention.
We note that Johnson’s challenged detention was not
particularly brief. It lasted approximately 23 minutes, in a public
parking lot—subjecting Johnson to potential embarrassment and
stigma. Three officers were on the scene and one was specifically
tasked with guarding Mays and Johnson throughout the duration
of the search.
Very little sits on the other side of the scale. The People—
who bear the burden of justifying Johnson’s continued
detention—never presented facts suggesting that they needed to
determine who Johnson was (or if he was a felon or a gang
member) to decide if Mays was prohibited from associating with
him. (Cf. People v. Rios (2011) 193 Cal.App.4th 584, 595; People
11
v. Matelski, supra, 82 Cal.App.4th at pp. 852-853.) Nor did the
People develop a record establishing when Taylor found the black
bag on the passenger-side floorboard, much less argue that this
discovery justified continued detention of Johnson. (See People v.
Russell (2000) 81 Cal.App.4th 96, 102.)
The only reason Taylor gave for the continued detention
was his need for safety while completing a probation search of
Mays’s car. Officer safety concerns may, in these circumstances,
justify a limited detention at the outset. (Gutierrez, supra, 21
Cal.App.5th at p. 1160.) But, here, Taylor articulated no specific
facts justifying a pat search and then kept Johnson detained for
more than 23 minutes after a pat search apparently revealed
Johnson had no weapons.
The prosecution failed to meet its burden. On this record,
we agree with the parties that Johnson’s detention was
unconstitutionally prolonged in violation of the Fourth
Amendment. (See Gutierrez, supra, 21 Cal.App.5th at pp. 1160-
1161 [similar detention lasting more than 30 minutes after
uneventful pat search not justified by specific and articulable
facts].) The orders denying Johnson’s motions to suppress must
be reversed.
The People further concede that the remaining evidence is
insufficient to prove Johnson guilty beyond a reasonable doubt,
and that it is necessary to reverse Johnson’s convictions on
counts two though four and remand for resentencing.
Accordingly, we need not reach Johnson’s additional assertion of
Miranda error. Likewise, we need not decide whether
resentencing is independently mandated by the Legislature’s
recent amendment of section 1170. (See Sen. Bill No. 567 (2021–
2022 Reg. Sess.), Stats. 2021, ch. 731, § 1.3.) On remand, the
trial court must resentence Johnson in compliance with the
current determinate sentencing law.
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DISPOSITION
The judgment is reversed in part. Johnson’s convictions on
counts two through four are vacated, and the matter is remanded
for further proceedings consistent with this opinion. After
Johnson is resentenced under the amended version of section
1170, subdivision (b), the superior court clerk is directed to
prepare and forward an amended abstract of judgment to the
Solano County Sheriff’s Department and any other appropriate
agency. In all other respects, the judgment is affirmed.
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______________________
BURNS, J.
We concur:
____________________________
JACKSON, P.J.
____________________________
SIMONS, J.
A163270
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