People v. Tawney CA3 ( 2021 )

Filed 12/6/21 P. v. Tawney CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sutter)
----
THE PEOPLE, C090659
Plaintiff and Respondent, (Super. Ct. No.
CRF190300004A)
v.
ANTHONY MICHAEL TAWNEY,
Defendant and Appellant.
This case arises out of the severe beating of a man by defendant Anthony Tawney
and his codefendant stepfather during a domestic dispute. After a joint trial, a jury found
defendant guilty of assault by means of force likely to produce great bodily injury (Pen.
Code, § 245, subd. (a)(4)), 1 possession of a firearm by a felon (§ 29800, sub. (a)(1)), and
1 Undesignated statutory references are to the Penal Code.
1
possession of ammunition by a felon (§ 30305, subd. (a)(1)). 2 The jury also found true
the allegation that he personally inflicted great bodily injury. (§ 12022.7, subd. (a).) The
trial court sentenced him to an aggregate term of seven years in prison, and this timely
appeal followed. The notice of appeal in this case was filed in October 2019. After
numerous granted requests for extension of time to file the opening brief, the case was
fully briefed in August 2021 and assigned to this panel that same month. The parties
waived oral argument, and the case was submitted on October 29, 2021.
Defendant contends reversal is warranted due to the trial court’s failure to suppress
evidence seized during a warrantless automobile search, insufficient evidence, and
evidentiary error. We reject these contentions and affirm the judgment.
FACTUAL BACKGROUND
In February 2019, defendant’s mother, Michelle Tawney-Wilson, and his
stepfather, Brandon Wilson, lived in Yuba City. 3 On February 3, 2019, Michelle invited
some people to her home (Wilson residence) for a Super Bowl party, including the
victim, Richard Evers, III. Michelle knew Evers because she was a friend of his younger
brother, who had died around 10 years earlier.
Brandon and Michelle drove Evers home around 10:00 p.m. Thereafter, Michelle
went to a bar by herself. At approximately 3:30 a.m. on February 4, she went to Evers’
residence. According to Evers, Michelle came over to talk about his deceased brother.
At approximately 4:00 a.m., Brandon and defendant knocked on Evers’ front door.
Evers was shirtless when he opened the door; Brandon demanded to know if Michelle
was inside and began arguing with Evers, which woke up Evers’ roommate, Gerald
Lujan. During the argument, Brandon searched the house for Michelle. When he noticed
2 The jury found defendant not guilty of assault with a deadly weapon, a firearm. (§ 245,
subd. (b).)
3 To avoid any confusion, we refer to Brandon and Michelle by their first names.
2
that the bathroom door was locked, he pounded on it and said, “I know you’re in there.”
Shortly thereafter, Michelle emerged from the bathroom. Brandon yelled and screamed
at her; he said he wanted a divorce and called her a “bitch” and a “whore.” According to
Lujan, Evers had a “crappy shit eatin’ grin” on his face when Michelle came out of the
bathroom.
As Brandon and Michelle were arguing, Lujan noticed that defendant was “beating
[Evers] up.” Evers was on the ground and defendant was punching him. Brandon ran
toward Evers and joined the attack. Both Brandon and defendant repeatedly punched
Evers. Brandon also kicked Evers in the head and back. Evers, a much smaller man, did
not fight back.
During the attack, Lujan saw a black semiautomatic handgun on the floor near
Brandon’s legs. According to Lujan, Brandon picked the gun up and told defendant,
“[Y]our gun fell out.”
When Lujan said that he was calling the police, Brandon and defendant fled the
area. Police officers were dispatched to the scene at 4:33 a.m. Inside the residence, there
was a significant amount of blood, including a large puddle where the attack occurred.
Evers, who was covered in blood, was taken to the hospital by ambulance.
Evers sustained numerous injuries from the attack, including broken and loose
teeth, a broken nose, a broken upper jaw, and a broken eye socket. In total, Evers
suffered 11 bone fractures. At the time of trial, he had missing teeth and was unable to
see out of one of his eyes.
At approximately 1:32 p.m. the next day, defendant was stopped by police officers
for traffic violations shortly after he drove away from the Wilson residence. He was
arrested and placed on the curb or in the backseat of a patrol vehicle. Thereafter, a
warrantless search of the car revealed a loaded, black semiautomatic handgun inside a
blue bag, which was located on the front passenger-seat floorboard. Defendant was alone
3
in the car, which was not registered to him. His right hand was swollen and was cut in a
manner consistent with a fistfight.
DISCUSSION
I
Motion to Suppress
Defendant contends reversal is required due to the trial court’s failure to suppress
the evidence seized during the warrantless automobile search. He argues the trial court
erred in determining the search was justified under the search incident to arrest exception
to the Fourth Amendment’s warrant requirement. We disagree.
A. Additional Background
Defendant filed a pretrial motion seeking to suppress the loaded handgun seized
during the warrantless automobile search pursuant to section 1538.5. The prosecution
filed a written opposition. Among other things, the prosecution argued that the search
was valid because the gun was seized during a lawful search incident to arrest.
At the hearing on the motion, Detective Charles Taylor Green, Jr., from the Sutter
County Sheriff’s Department testified that on February 5, 2019, he and his partner were
conducting surveillance on the Wilson residence when they observed an individual get
into a car and drive away. At that time, Green was aware that defendant had assaulted
someone 24 to 36 hours earlier, he had a handgun during the assault, the gun was
potentially used in the assault, and defendant remained in possession of the gun after the
assault.
Detective Green and his partner followed the car for a short distance and then
conducted a traffic stop after observing two traffic violations. After defendant produced
an identification card but not a driver’s license, Green instructed him to get out of the car.
When asked whether he was armed, defendant said that a box cutter was in his right front
pocket.
4
Detective Green handcuffed defendant, removed the box cutter from his pocket,
and arrested him for “the 245 and some other charges added.” Green requested a tow-
truck and then searched the car. 4 During the search, he found a black handgun inside a
blue gym bag, which was located on the front passenger-side floorboard. At the time of
the search, defendant was handcuffed and sitting on the curb or in the backseat of a patrol
vehicle. He was the only person in the car, which was not registered to him.
After hearing argument from counsel, the trial court denied the motion to suppress.
The court ruled the search was justified under the search incident to arrest exception to
the Fourth Amendment’s warrant requirement. The court added that the search was
“potentially or legitimately a search for probable cause.”
B. Applicable Legal Principles and Standard of Review
The Fourth Amendment guarantees the right to be free of unreasonable searches
and seizures by law enforcement personnel. (U.S. Const., 4th Amend.; People v. Diaz
(2011) 51 Cal.4th 84, 90, overruled on other grounds in Riley v. California (2014) 573
U.S. 373, 403.) “The remedy for a violation of the Fourth Amendment is to render
inadmissible any evidence seized during the illegal search.” (People v. Downey (2011)
198 Cal.App.4th 652, 657.)
Under section 1538.5, a defendant may move to suppress evidence obtained
during an unreasonable warrantless search. (§ 1538.5, subd. (a)(1)(A).) The prosecution
bears the burden of showing that a warrantless search was lawful. (People v. Johnson
(2006) 38 Cal.4th 717, 733; see also People v. Macabeo (2016) 1 Cal.5th 1206, 1213.)
4 Detective Green described the automobile search as an inventory search, explaining
that he searched the car “incident to arrest” to document whether there was anything of
“high value” inside. The prosecution, however, did not argue in the trial court, and the
Attorney General does not assert on appeal, that the search was a valid inventory search.
Therefore we do not discuss it further.
5
We review issues relating to the suppression of evidence derived from police
searches and seizures under federal constitutional standards. (People v. Schmitz (2012)
55 Cal.4th 909, 916; People v. Bradford (1997) 15 Cal.4th 1229, 1291.) Warrantless
searches are presumed to be unreasonable, subject only to a few specifically established
and well-delineated exceptions. (People v. Diaz, supra, 51 Cal.4th at p. 90, citing Katz v.
United States (1967) 389 U.S. 347, 357.) “One of the specifically established exceptions
to the Fourth Amendment’s warrant requirement is ‘a search incident to a lawful arrest.’ ”
(Diaz, at p. 90, citing United States v. Robinson (1973) 414 U.S. 218, 224.)
Police officers may search a vehicle incident to an occupant’s arrest in two
circumstances: (1) when the arrestee is unsecured and within reaching distance of the
passenger compartment at the time of the search, or (2) when there is reason to believe
evidence relevant to the crime of arrest might be found in the vehicle. (Arizona v. Gant
(2009) 556 U.S. 332, 343 (Gant).) Under Gant, “circumstances unique to the vehicle
context justify a search incident to a lawful arrest when it is ‘reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle.’ [Citation.] In
many cases, as when a recent occupant is arrested for a traffic violation, there will be no
reasonable basis to believe the vehicle contains relevant evidence. [Citations.] But in
others . . . the offense of arrest will supply a basis for searching the passenger
compartment of an arrestee’s vehicle and any containers therein.” (Id. at pp. 343-344.)
“ ‘In reviewing a suppression ruling, “we defer to the superior court’s express and
implied factual findings if they are supported by substantial evidence, [but] we exercise
our independent judgment in determining the legality of a search on the facts so found.” ’
[Citation.] [¶] Thus, while we ultimately exercise our independent judgment to
determine the constitutional propriety of a search or seizure, we do so within the context
of historical facts determined by the trial court.” (People v. Tully (2012) 54 Cal.4th 952,
979.)
6
C. Analysis
We conclude the warrantless automobile search was justified under the search
incident to arrest exception to the Fourth Amendment’s warrant requirement.
In People v. Nottoli (2011) 199 Cal.App.4th 531, the Sixth Appellate District
considered the legality of the search of a car driven by a defendant who was arrested for
being under the influence of a controlled substance, and for driving with an expired
license. (Id. at p. 540.) The search revealed drug paraphernalia, a loaded firearm, and a
cell phone that had a picture of the defendant posing with firearms. (Id. at pp. 540-541.)
In finding the search lawful as incident to an arrest, the court relied on Gant, which
“explicitly held that a vehicular search incident to arrest is valid when ‘it is reasonable to
believe that evidence of the offense of arrest might be found in the vehicle[]’ [citation] or
when ‘it is “reasonable to believe evidence relevant to the crime of arrest might be found
in the vehicle.” ’ ” (Nottoli, at p. 551, fn. omitted.)
Here, when the car was searched, defendant did not have access to the passenger
compartment, as he was detained. However, the car and blue bag found inside were
properly searched incident to his arrest because it was reasonable for Detective Green to
believe that evidence relevant to the crime of arrest might be found in the car. (People v.
Nottoli, supra, 199 Cal.App.4th at p. 551; Gant, supra, 556 U.S. at pp. 343-344.) At the
time of the search, defendant had just been arrested for assault, and Green was aware that
defendant possessed and potentially used a handgun during the very recent assault for
which he had just been arrested. Under these circumstances, it was reasonable for Green
to believe the car defendant was driving might contain the handgun or other evidence
relevant to the assault, such as bloody clothes. Accordingly, we find no Fourth
Amendment violation. 5
5 In his reply brief, defendant conflates the two circumstances described by Gant to
argue that regardless of the likelihood that evidence of the crime of arrest would be
7
II
Sufficiency of the Evidence
Defendant contends reversal is required because there was insufficient evidence
presented to establish that he knowingly possessed the loaded handgun found during the
warrantless automobile search. We disagree.
A. Applicable Legal Principles and Standard of Review
The firearm and ammunition possession offenses charged in this case “prohibit a
felon from ‘possess[ing]’ or having ‘under [his] custody or control’ the given item
[citations], and they are general-intent crimes that require knowing possession of the
prohibited item.” (People v. Bay (2019) 40 Cal.App.5th 126, 131-132; see CALCRIM
No. 2511 [possession of firearm]; CALCRIM No. 2591 [possession of ammunition].)
Knowledge can be proved by circumstantial evidence and any reasonable inferences
drawn from that evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746.)
“Possession may be actual or constructive. ‘ “A defendant has actual possession
when the weapon is in his . . . immediate possession or control,” ’ i.e., when he . . . is
actually holding or touching it. [Citations.] ‘To establish constructive possession, the
prosecution must prove a defendant knowingly exercised a right to control the prohibited
item, either directly or through another person.’ [Citations.] Although a defendant may
share possession with other people, ‘mere proximity’ or opportunity to access the
contraband, ‘standing alone, is not sufficient evidence of possession.’ ” (People v. Bay,
supra, 40 Cal.App.5th at p. 132.)
located in the car, some exigency or danger to the officers was still required in this
situation. But as Gant itself makes clear, this characterization is inaccurate. “Neither the
possibility of access nor the likelihood of discovering offense-related evidence authorized
the search in this case. . . . Gant clearly was not within reaching distance of his car at the
time of the search. An evidentiary basis for the search was also lacking in this case. . . .
Gant was arrested for driving with a suspended license—an offense for which police
could not expect to find evidence in the passenger compartment of Gant’s car.” (Gant,
supra, 556 U.S. at p. 344, italics added.)
8
Dominion and control may be inferred when the prohibited item is discovered in a
place over which the defendant has general dominion and control, such as his residence,
automobile, or personal effects. (People v. Jenkins (1979) 91 Cal.App.3d 579, 584).
Dominion and control may also be inferred when the prohibited item is immediately
accessible. (People v. Miranda (2011) 192 Cal.App.4th 398, 410.)
“ ‘In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ” (People v. Steele (2002) 27 Cal.4th 1230,
1249.) “We draw all reasonable inferences in favor of the judgment.” (People v.
Cardenas (2020) 53 Cal.App.5th 102, 119, fn. 11.) “If the circumstances reasonably
justify the trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary finding.”
(People v. Albillar (2010) 51 Cal.4th 47, 60.) We reverse for lack of substantial evidence
only if “ ‘upon no hypothesis whatever is there sufficient substantial evidence to support
[the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. Analysis
Viewing the record in the light most favorable to the judgment, we conclude there
was substantial evidence from which a reasonable jury could have concluded that
defendant knowingly possessed the firearm and ammunition found during the search of
the car. The firearm was found in the car defendant was driving on the day after the
assault; it was inside a blue bag located on the front passenger-side floorboard. Given the
location of the gun and the evidence that defendant was alone in the car and possessed a
similar gun during the assault, the jury could have reasonably inferred the gun belonged
to him. Although defendant was not the registered owner of the car, there was no
9
evidence that any other person had recently driven the car or that the blue bag belonged
to someone else. There was sufficient evidence to support the convictions. 6
III
Alleged Evidentiary Error
Defendant contends the trial court prejudicially erred in allowing the prosecution
to introduce testimony from Lujan that, during the assault, Brandon told defendant:
“Your gun fell out.” Defendant argues the admission of this evidence violated the
Aranda-Bruton7 rule and his Sixth Amendment right to confrontation, which, as we
explain below, prohibit the admission of testimonial statements made by a non-testifying
defendant that incriminate a codefendant. (See People v. Washington (2017) 15
Cal.App.5th 19, 26-28 (Washington).) Defendant additionally contends that Brandon’s
statement regarding the handgun was inadmissible hearsay and should not have been
admitted. We disagree.
A. Additional Background
Immediately before Lujan testified, the prosecutor learned for the first time that,
during the assault, Lujan heard Brandon tell defendant that his gun fell. Over defense
objection pursuant to the Aranda-Bruton rule, the trial court admitted Lujan’s testimony
under the spontaneous declaration exception to the hearsay rule. The court stated:
“[T]he Aranda-Bruton rule does not apply to statements that are admissible under hearsay
exceptions. A spontaneous statement is a hearsay exception that survives any
Crawford[8] issue. Therefore, it’s admissible . . . .”
6 The parties stipulated defendant was a felon at the time of the search.
7 People v. Aranda (1965) 63 Cal.2d 518, partially abrogated by constitutional
amendment as stated in People v. Fletcher (1996) 13 Cal.4th 451, 465 (Fletcher);
Bruton v. United States (1968) 391 U.S. 123.
8 Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
10
B. Applicable Legal Principles
The confrontation clause guarantees that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.” (U.S.
Const., 6th Amend.) “The right of confrontation includes the right of cross-
examination.” (Fletcher, supra, 13 Cal.4th at p. 455.)
In Bruton, the United States Supreme Court held that the admission of a non-
testifying codefendant’s confession implicating the defendant violates the confrontation
clause’s guarantee of the right to cross-examination even if the jury is instructed to
disregard the confession as to the defendant. (Bruton v. United States, supra, 391 U.S. at
pp. 127-128.) The Aranda court reached a similar conclusion on non-constitutional
grounds. (People v. Aranda, supra, 63 Cal.2d at pp. 528-531; see also Fletcher, supra,13 Cal.4th at p. 455.)
However, nearly 40 years after Aranda and Bruton were decided, the United States
Supreme Court held that the confrontation clause only prohibits the admission of
testimonial hearsay statements. (Crawford, supra, 541 U.S. at pp. 59, 68-69; see
Whorton v. Bockting (2007) 549 U.S. 406, 420 [confrontation clause has no application to
out-of-court nontestimonial statements]; People v. Gutierrez (2009) 45 Cal.4th 789, 812
[“[o]nly the admission of testimonial hearsay statements violates the confrontation
clause”].) “Nontestimonial hearsay is subject only to ‘traditional limitations upon
hearsay evidence’ and does not implicate the Sixth Amendment right of confrontation.”
(People v. Arauz (2012) 210 Cal.App.4th 1394, 1401-1402; see also People v. Arceo
(2011) 195 Cal.App.4th 556, 575.)
In Crawford, the United States Supreme Court did not explicitly define
“testimonial statements.” (Crawford, supra, 541 U.S. at p. 51.) Instead, it described
testimonial hearsay as “ ‘ex parte in-court testimony or its functional equivalent—that is,
material such as affidavits, custodial examinations, prior testimony that the defendant
was unable to cross-examine, or . . . ‘statements that were made under circumstances
11
which would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.’ ” (Crawford, supra, 541 U.S. at pp. 51-52.) The court
also noted that “[s]tatements taken by police officers in the course of interrogations are
. . . testimonial under even a narrow standard.” (Id. at p. 52.) In order to be “testimonial”
under Crawford, a statement must have been “given and taken primarily for the purpose
[of] . . . establish[ing] or prov[ing] some past fact for possible use in a criminal trial.”
(People v. Cage (2007) 40 Cal.4th 965, 984; see also Washington, supra, 15 Cal.App.5th
at p. 28.)
C. Analysis
We conclude that defendant’s Aranda/Bruton argument fails because Brandon’s
statement regarding the handgun was nontestimonial. Under Crawford, the rule
announced in those cases only applies to testimonial hearsay statements. (People v.
Cortez (2016) 63 Cal.4th 101, 129 [rejecting Bruton argument because, among other
things, “ ‘the confrontation clause applies only to testimonial hearsay statements and not
to [hearsay] statements that are nontestimonial’ ”]; see also Washington, supra, 15
Cal.App.5th at p. 28.)
Here, because the challenged hearsay statement was nontestimonial, it was
admissible if an exception to the hearsay rule applied. (People v. Arauz, supra, 210
Cal.App.4th at pp. 1401-1402.) The trial court found that the spontaneous statement
exception applied. (See Evid. Code, § 1240.)9 Defendant did not object in the trial court
on the ground that this exception did not apply. On appeal, he argues for the first time
that the challenged statement was “classic hearsay and inadmissible because it was
9 Evidence Code section 1240 provides: “Evidence of a statement is not made
inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or
explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made
spontaneously while the declarant was under the stress of excitement caused by such
perception.”
12
introduced solely for the truth of the matter asserted -- that [defendant] possessed a gun.”
Even were we to overlook forfeiture, 10 we would find no merit in defendant’s argument.
A spontaneous statement is admissible for the truth of the matter asserted. (People v.
Pensinger (1991) 52 Cal.3d 1210, 1266.) The hearsay statement at issue here clearly
qualified as a spontaneous statement. 11
DISPOSITION
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Hoch, J.
10 It is well established that “trial counsel’s failure to object to claimed evidentiary error
on the same ground asserted on appeal results in a forfeiture of the issue on appeal.”
(People v. Dykes (2009) 46 Cal.4th 731, 756.)
11In view of our conclusions, we need not and do not address any of the other arguments
made by the parties.
13