People v. Quevara CA5 ( 2021 )

Filed 12/20/21 P. v. Quevara CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078311
Plaintiff and Respondent,
(Super. Ct. No. BF172506A)
v.
JUAN QUEVARA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw
and Gary T. Friedman, Judges.†
Paul Kleven, 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, Michael P. Farrell, Assistant Attorney General, Louis M.
Vasquez, Doris A. Calandra, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
† Judge Bradshaw conducted an in camera review of officer personnel records and presided
on August 2, 2018; Judge Friedman presided over all other hearings pertinent to this appeal.
A jury convicted defendant Juan Quevara of second degree robbery after he
robbed employees of a farm equipment store (the store) in Kern County. On appeal,
defendant contends (1) the trial court erred in denying his motion to suppress evidence
seized during a patdown search and a more thorough search prior to his arrest; (2) the
evidence was insufficient to prove he used force or fear to take property; and (3) this
court should review the trial court’s Pitchess motion ruling and ensure the trial court
followed proper procedure in denying it. We affirm.
PROCEDURAL BACKGROUND
The Kern County District Attorney filed an information on June 26, 2018,
charging defendant with second degree robbery (Pen. Code, § 212.5, subd. (c))1 and
alleged that the charged crime was a serious felony within the meaning of section 1192.7,
subdivision (c). Defendant pled not guilty on July 2, 2018.
Defendant filed a Pitchess2 motion on July 10, 2018, requesting disclosure of
Bakersfield Police Officer Anthony Kidwell’s personnel records relevant to dishonesty,
false arrest, illegal detentions, and the fabrication of charges, evidence, or reports, and
other records. Counsel for the Bakersfield Police Department objected to producing any
records other than those relating to dishonesty. The trial court granted defendant’s
motion for an in camera review and conducted a review of Officer Kidwell’s records
pertaining to false reporting and honesty on August 2, 2018. After reviewing the records,
the court denied the motion for discovery.
Upon hearing the parties’ in limine motions on September 17, 2018, the trial court
held an Evidence Code section 402 hearing on defendant’s motion to exclude evidence of
prior bad acts and his statements to police at the time of arrest. As a result of information
revealed during that hearing on September 17 and 18, 2018, defense counsel made an oral
motion to suppress evidence seized from defendant’s person before his arrest. Counsel
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Pitchess v. Superior Court (1974) 11 Cal.3d 531; see also Evidence Code section 1043.
2.
explained that she only realized at this hearing that a suppression motion was appropriate
because the testimony differed from the police report. After allowing more evidence and
hearing argument from counsel, the trial court denied the suppression motion.
After a two-day trial, the jury convicted defendant of count 1, second degree
robbery, on September 19, 2018.
On October 16, 2018, the trial court denied probation and sentenced defendant to a
term of two years in state prison. In addition, the court ordered defendant to pay
restitution in amounts to be later determined by probation to Mario (§ 1202.4, subd. (f))
and to the Restitution Fund in the State Treasury (§ 1202.4, subd. (f)(2)), a $300
restitution fine (§ 1202.4, subd. (b)), a stayed $300 parole revocation restitution fine
(§ 1202.45, subd. (a)), a $10 crime prevention fund fine (§ 1202.5), a $40 court
operations assessment (§ 1465.8, subd. (a)(1)), and a $30 conviction assessment (Gov.
Code, § 70373).
Defendant timely appealed on October 23, 2018.
FACTS
Mario L. had been employed by the store in Kern County for at least two months
as of June 5, 2018, when he saw defendant in the store. The store sold animal feed,
mechanical equipment, and other farming items. Mario first saw defendant on the
northwest side of the store, in an enclosed outdoor area, where he was placing items in a
shopping cart. Mario estimated that he contacted defendant after defendant had been in
the store approximately three to four minutes. At the request of his manager, Mario
approached defendant and asked him to leave the store.3 Defendant immediately became
upset and threatened Mario.
3 The trial court excluded evidence regarding the reason Mario asked defendant to leave
the store. Defendant had been asked to leave the store a month earlier because employees
believed he had been stealing. Mario asked defendant to leave the store at the manager’s
direction due to defendant’s earlier conduct.
3.
Mario followed as defendant refused to leave and walked in different aisles around
the store, taking items and placing them in his pockets. Mario observed defendant place
a key chain, pliers, and number stickers (for use on mailboxes) in his pockets. Mario
valued the items at approximately $40 to $50.
During this time, as Mario followed defendant around the store, defendant called
him names and threatened to “kick [his] ass.” Mario felt afraid hearing defendant’s
threats. Defendant was in the store approximately 10 minutes and threatened Mario
“[t]he whole time.” Mario called 911 several times while defendant was in the store.
Mario stayed near defendant while trying to get him to leave because Mario was afraid
for himself and the women working in the store.
Mario followed defendant, trying to escort him to an area out in front of the store
where merchandise was on display. Defendant turned, took a fighting stance, and told
Mario, “I’m going to kick your fuckin’ ass, you bitch.” Defendant continued to curse and
threatened Mario, causing Mario to get scared, move out of defendant’s way, and call 911
again. When he called 911, Mario described defendant as a Hispanic male, either in his
late twenties or early thirties, bald, wearing shorts and a black shirt, with a red marking
on his hand or forearm.
Defendant walked away through the parking lot with the stolen items in his pocket
while continuing to yell threats at Mario. Mario was still frightened as defendant walked
away. The police arrived shortly thereafter. Mario saw the police arrest defendant.
Mario identified defendant as the man who had threatened him and taken items from the
store. Mario testified the key chain, pliers, and number stickers police seized from
defendant were those he saw defendant take from the store.
Bakersfield Police Officer Kristopher Jauch responded to the store parking lot at
approximately 6:33 p.m. The initial 911 call had been received at 6:21 p.m. and reported
a theft. Shortly thereafter he learned that another 911 call was received, reporting that the
suspect was making threats to assault employees.
4.
As he drove through the parking lot, Jauch saw defendant, who was the only
individual matching the suspect’s description. Although the description included a red
tattoo, Jauch testified he did not remember if defendant had such a tattoo. Jauch
identified defendant’s booking photo and acknowledged that defendant was not bald at
the time of his arrest. Jauch testified that the booking process generally does not
document every tattoo an individual has.
Jauch saw defendant near a coffee shop in the same parking lot (the coffee shop),
approximately 200 yards from the store. Defendant did not initially respond to Jauch’s
commands to come to him. Once defendant complied, Jauch searched defendant and
seized a key chain, pliers, and number stickers from the pockets of defendant’s shorts.
Jauch testified he could not remember if these items had tags indicating they were from
the store.
During rebuttal, defense counsel introduced into evidence a stipulation that
Bakersfield Police Officer Mark Rice,4 if called to testify, would testify that he did not
recall seeing a tattoo on defendant’s arm. The defense presented no additional evidence.
DISCUSSION
I. The trial court properly denied defendant’s motion to suppress because the
evidence seized during Officer Jauch’s searches would have inevitably been
discovered following his arrest.
Defendant argues that the trial court erred in denying his motion to suppress the
items seized from him at the time of arrest because Officer Jauch lacked reasonable
suspicion to detain him or to believe he was armed and dangerous. The People respond
that defendant’s detention and patdown search were supported by reasonable suspicion
that he committed a crime and might be armed and dangerous. Reasonable suspicion
ripened to probable cause supporting the search of defendant’s person. We agree that
reasonable suspicion supported defendant’s detention but do not reach the legality of the
4 Although not explained to the jury, Officer Rice responded to the store on June 5, 2018,
as described below.
5.
searches as we agree with the trial court that the items seized from defendant would have
inevitably been discovered during a search of defendant incident to his arrest. We
conclude the trial court properly denied defendant’s motion to suppress evidence.
A. Background—Evidence Code Section 402 Hearing Testimony
Before trial, the trial court held an evidentiary hearing addressing defendant’s
motion to exclude evidence of his prior bad acts and statements to police. After Officers
Kidwell and Jauch testified, defense counsel alerted the trial court to an issue relating to
the legality of Jauch’s searches of defendant.5 After concluding the section 402 hearing
later that day, defense counsel orally moved to suppress the evidence seized from
defendant before his arrest based upon the testimony adduced.
1. Mario L.’s Testimony
Mario worked for the store since April 2018. Mario first saw defendant in May
2018, one month prior to the instant offense, when defendant was asked to leave the
business. Mario next saw defendant on June 5, 2018, and recognized him from the May
encounter. That day, Mario personally saw defendant take and steal items including
pliers and number stickers.
2. Officer Kidwell’s Testimony
a) Initial Testimony6
Officer Kidwell was working on June 5, 2018.7 He responded to the store that
day. When he arrived, he spoke first to Mario to confirm an offense had occurred, and
5 Kidwell’s police report erroneously described that he found the seized items during a
postarrest search of defendant. The officers’ testimony revealed that Jauch had performed the
two searches of defendant yielding the seized evidence while Kidwell’s search did not result in
any seizure.
6 Because the purpose of the hearing evolved, after his initial testimony, Kidwell was
recalled for additional testimony.
7 As of September 17, 2018, Kidwell had been employed with the Bakersfield Police
Department for one year.
6.
Mario pointed out defendant as the suspect. Defendant matched the description of the
suspect.
Kidwell learned from Officer Rice, who had also responded to the scene, that
while Kidwell was speaking with Mario, Rice had searched defendant and removed items
from defendant’s pockets. 8 Kidwell later contacted defendant and searched him before
transporting him to jail.
b) Further Testimony
When recalled, Kidwell testified he arrived at the store within minutes of the
arrival of Jauch and Rice. Because he was newer to the Bakersfield Police Department,
Kidwell was assigned to speak with Mario and determine whether an offense occurred
while Jauch and Rice contacted defendant. After speaking with Mario, Kidwell contacted
Jauch and Rice, learning that they had found items during a search of defendant. The
seized items included a pair of pliers, number stickers, and a double spring hook.9
Kidwell later confirmed with Mario that these items were sold by the store.
Kidwell did not find these items during his search of defendant, though his report
mistakenly indicated that Kidwell had seized them during his search of defendant. 10
When Kidwell searched defendant, he did not find anything in defendant’s pockets.
Kidwell searched defendant after his arrest pursuant to standard practice and
procedure. As required by policy, before placing defendant in his patrol vehicle, Kidwell
searched defendant to ensure that nothing that could harm Kidwell had been missed in an
earlier search. Kidwell was trained to search every suspect before placing them in his
patrol vehicle for his own safety.
8 Rice subsequently testified that he did not search defendant, arriving after the search had
occurred.
9 Some witnesses referred to this item as a key chain. While the item had a tag attached,
Kidwell could not recall if it indicated being from the store.
10 Kidwell’s report is also incorrect in that it provides he searched Mario when, in fact, he
actually searched defendant.
7.
3. Officer Jauch’s Testimony
Officer Jauch responded to the store on June 5, 2018. He had heard a report of a
theft in progress, later updated to indicate the suspect was threatening to assault the staff.
The initial 911 call was received at 6:21 p.m., and Jauch arrived at approximately
6:33 p.m.
Jauch received a description of the suspect from the radio, remembering only that
he had been described as a Hispanic male who was wearing a black shirt, black or gray
shorts, and possessed a red tattoo. In addition, Jauch heard on the radio that the
employees had followed the suspect to the coffee shop.
Jauch believed that he was the first person on the scene and, upon arrival, drove
around the parking lot. Approximately 200 yards from the store, and within the same
parking lot shared by the store and other businesses, Jauch saw defendant walking away
from the store and to a bike just outside of the coffee shop. Observing at least 10 other
individuals outside of the coffee shop, Jauch approached defendant who most closely
matched the suspect’s description. While Jauch could not remember descriptions of the
other individuals at the coffee shop, defendant was the only person whose clothing
matched the suspect’s description. Jauch could not remember if defendant had a tattoo.
Jauch ordered defendant to come to him. Defendant ignored him and Jauch
repeated his command two or more times. Defendant eventually complied with Jauch’s
directions after repeated commands. Jauch acknowledged that defendant had not verbally
threatened him, acted aggressively, nor had Jauch observed defendant with a weapon.
Nonetheless, Jauch believed defendant may have had a weapon as Jauch’s past
experiences showed that theft suspects have been armed with box cutters, knives, and
wire cutters. In addition, defendant did not respond to Jauch’s directions to approach
him, attempting several times to walk away. Jauch believed that defendant may have had
a weapon because of the reluctance and hesitance he exhibited.
8.
Jauch patted defendant down, looking for weapons, and removed black and red
wire cutters from his right pants pocket. Defendant sat on a curb while Jauch waited for
another officer to arrive. Officer Rice arrived and stayed with Kidwell.
Kidwell responded to the call before Jauch conducted a second search of
defendant. Kidwell was speaking with the store employees, confirming the offense took
place and that Mario identified defendant as the suspect. Jauch never spoke to any
witnesses himself but learned that Kidwell had spoken to a witness who identified
defendant as the suspect before conducting the second search.
Jauch believed that while Officer Rice was present during the second search,
Kidwell was still interviewing witnesses. During the search, Jauch found several white
stickers with black numbers and a key chain.
4. Officer Rice’s Testimony
Officer Rice responded to the store on June 5, 2018. Rice was advised by radio
that another officer had contacted the suspect and responded to that location. When Rice
arrived, Jauch and Kidwell were with defendant. Rice stood nearby while the other
officers conducted their investigation.
5. Defendant’s Motion to Suppress
Defense counsel argued that Jauch lacked reasonable suspicion to believe
defendant was armed when he conducted the patdown search and lacked probable cause
to justify the subsequent search of defendant. As to Jauch’s patdown search of defendant,
defense counsel argued that defendant’s verbal threat to Mario, even considering
defendant’s lack of cooperation with the officer, was not enough to support the officer’s
belief that defendant was a safety threat and might be armed. Counsel also argued that
defendant did not match the suspect’s description as he did not have a tattoo and that
defendant’s proximity to the scene was not significant given the more than 10 minutes
that had elapsed since the 911 call. Regarding the subsequent search, counsel argued that
at the time of the search, Jauch had not yet learned that Kidwell both confirmed a crime
9.
had occurred and that Mario had identified defendant as the perpetrator; therefore, he
lacked probable cause to justify the search.
The prosecutor argued that the items seized from defendant would have inevitably
been discovered by the officers when they performed a search incident to defendant’s
arrest, and justified the patdown search relying upon (1) the officer’s past experiences
with armed theft suspects; (2) the radio report indicating the suspect had threatened to
assault employees; and (3) defendant’s initial refusal to follow the officer’s directions.
The trial court found defendant’s detention was supported by the radio reports
Jauch had heard and the patdown search was lawful and supported by concerns for officer
safety. Furthermore, the trial court determined that the items would have been inevitably
discovered.
B. Standard of Review
“A defendant may move … to suppress as evidence any tangible or intangible
thing obtained as a result of a search or seizure on … the … grounds … [¶] … [t]he
search or seizure without a warrant was unreasonable.” (§ 1538.5, subd. (a)(1)(A).)
“The standard of appellate review of a trial court’s ruling on a motion to suppress
is well established. We defer to the trial court’s factual findings, express or implied,
where supported by substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
C. Defendant’s Detention
Even if lacking probable cause, an officer may stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion, supported by articulable
facts, that criminal activity “ ‘may be afoot.’ ” (United States v. Sokolow (1989) 490 U.S.
1, 7.) Reasonable suspicion is a less demanding standard than probable cause and is
determined in light of the totality of the circumstances. (Id. at pp. 7–8.) Innocent
10.
behavior will frequently justify suspicion that “ ‘criminal activity was afoot.’ ” (Id. at
pp. 9–10.)
Officer Jauch heard the broadcast description of the suspect. He was informed by
radio that a crime had been committed, that the suspect was a Hispanic male, dressed in a
black shirt and gray shorts, with a tattoo, and that he was last seen near the coffee shop.
Within minutes of the crime, Jauch observed defendant, a Hispanic male, dressed as
described, near the coffee shop, and only 200 yards from the store.11 Defendant initially
disregarded the officer’s commands, responding only after repeated commands.
Defendant argues that the significance of defendant’s proximity to the crime is
dispelled by the lapse between the time of the robbery and Jauch’s arrival (approximately
12 minutes). However, Jauch’s testimony indicates that while he heard the initial
911 broadcast of the robbery at 6:21 p.m., the report was updated once to advise that the
suspect threatened to assault employees, and then again to advise that the suspect had
been followed to the coffee shop. Thus, though the initial broadcast may have
commenced at 6:21 p.m., the robbery was still in progress and the time lapse between the
start of the crime and defendant’s apprehension was likely several minutes shorter.
Defendant’s proximity to the store that was robbed was still an important part of the
“totality of the circumstances,” and even if 12 minutes had elapsed, we do not find that
length of time sufficient to dispel the inference that defendant committed the crime due to
his proximity to the scene of the crime. “The ultimate question is whether the description
affords a sufficient basis for ‘selective investigative procedures,’ vis-à-vis a universe
made up of all persons within fleeing distance of the crime in question. [Citations.]
There is no definitive amount of time that should be considered a bar to a detention based
on a particular description.” (People v. Fields (1984) 159 Cal.App.3d 555, 565.)
11 Officer Kidwell testified that when arriving at the scene, Mario immediately pointed out
defendant as the suspect. However, the evidence is not clear as to when Jauch received this
information in relation to his searches of defendant.
11.
Defendant further argues that Jauch lacked reasonable suspicion that defendant
was the suspect because Jauch did not remember seeing a red tattoo on defendant’s
arm.12 While defendant argues that the discrepancy concerning the tattoo demonstrates a
lack of reasonable suspicion, we do not find it dispositive and consider it as part of the
“totality of circumstances.” The lack of evidence that defendant had a red tattoo on his
arm does not diminish the probative value of the other evidence supporting the trial
court’s finding. (See People v. Leath (2013) 217 Cal.App.4th 344, 355 [minor
discrepancies in descriptions of the suspect or vehicle are not dispositive for purposes of
reasonable suspicion].) Courts have repeatedly held an investigatory detention proper
under the totality of the circumstances even when a suspect’s characteristics are not an
exact match with the victim’s description. (See, e.g., People v. Craig (1978)
86 Cal.App.3d 905, 911–912 [finding an investigatory detention reasonable even though
the defendants did not perfectly match the suspects’ descriptions because “the
descriptions and appearances were substantially the same, and coincided in the
discernable factors (race, sex, build, number)”].)
“It is enough if there is adequate conformity between description and fact to
indicate to reasonable officers that detention and questioning are necessary to the proper
discharge of their duties.” (People v. Smith (1970) 4 Cal.App.3d 41, 48–49 [holding
officers reasonably stopped four African-American occupants in a vehicle located
30 blocks from a robbery involving four African-American suspects that had been
broadcasted just minutes before, and stating that discrepancies between the broadcast and
the stopped vehicle were minor and did not preclude the formation of reasonable
suspicion]; see People v. Lazanis (1989) 209 Cal.App.3d 49, 54, 59 [investigatory stop
supported by following facts: broadcast of a burglary in progress; brief description of a
small car and multiple passengers; and observation of car in the area headed away from
12 The record on appeal contains no evidence as to whether defendant possessed a red tattoo
at the time of the crime.
12.
the burglary shortly after the broadcast, even though car was a different model]; People v.
Jones (1981) 126 Cal.App.3d 308, 312–313 [broadcast of a recent assault, description of
vehicle and license plate, and description of suspects as two African-American males
justified stop of vehicle in the area four minutes after crime occurred, even though license
plate was not an exact match]; People v. McCluskey (1981) 125 Cal.App.3d 220, 226–
227 [report of robbery in the area justified stop of vehicle, even though no information
indicated suspects had used a vehicle, where vehicle spotted minutes later and passenger
resembled the description of the suspect].)
Here, even though officers did not observe a tattoo, Jauch testified that of the
approximately 10 or so individuals outside the coffee shop, defendant was the only
Hispanic individual wearing a black shirt and gray shorts. Considering also that Mario
had reported the suspect could be found at the coffee shop and defendant failed to
immediately respond to Jauch’s commands, the officer reasonably believed criminal
activity involving defendant was afoot, thereby justifying the decision to detain him.
We conclude the trial court’s decision that Officer Jauch lawfully detained
defendant is supported by substantial evidence that, considered in light of the totality of
the circumstances, provided Officer Jauch with “specific articulable facts” demonstrating
“some objective manifestation” that defendant was involved in criminal activity at the
time of his detention. (People v. Souza (1994) 9 Cal.4th 224, 231.)
D. Trial Court’s Denial of Motion to Suppress
Defendant argues that the facts were insufficient to support the reasonable belief
that he was armed and dangerous, necessary to support the patdown search and seizure of
the wire cutters. Defendant also argues that Officer Jauch did not have probable cause to
believe defendant committed a crime at the time he searched defendant and found the key
chain (or double spring hook) and number stickers. The People disagree and argue that
both the patdown search and the later search were lawful. The trial court found that the
items seized would have been inevitably discovered and denied the motion to suppress
13.
the evidence. We agree that the items would have been inevitably discovered after
defendant’s arrest and search incident to his arrest and, therefore, find it unnecessary to
address the lawfulness of the searches themselves. (See, e.g., People v. Clark
(1993) 5 Cal.4th 950, 992–993 [“We need not address the merits of defendant’s
contentions relating to the existence or absence of probable cause … because we
conclude the doctrine of inevitable discovery would validate the lower court’s ruling in
any event.”], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22.)
“ ‘Under the inevitable discovery doctrine, illegally seized evidence may be used
where it would have been discovered by the police through lawful means.… [T]he
doctrine “is in reality an extrapolation from the independent source doctrine: Since the
tainted evidence would be admissible if in fact discovered through an independent
source, it should be admissible if it inevitably would have been discovered.” ’ ” (People
v. Fayed (2020) 9 Cal.5th 147, 183–184; see Nix v. Williams (1984) 467 U.S. 431, 444
(Nix).)
“Instead, in order to justify application of the inevitable discovery exception,
respondent must demonstrate … that, due to a separate line of investigation, [13]
application of routine police procedures, [14] or some other circumstance, the [evidence]
… would have been discovered by lawful means. The showing must be based not on
speculation but on ‘demonstrated historical facts capable of ready verification or
13 People v. Hughston (2008) 168 Cal.App.4th 1062, 1072 (Hughston) cited Nix, supra,467 U.S. at pages 449 through 450 as an example where a separate line of investigation
established the inevitable discovery of the evidence.
14 Hughston provided two examples where the application of routine police procedures
established the inevitable discovery of the evidence. (Hughston, supra, 168 Cal.App.4th at
pp. 1072–1073, citing United States v. Andrade (9th Cir.1986) 784 F.2d 1431, 1433 [narcotics in
possession of lawfully arrested defendant inevitably would have been discovered through lawful
inventory search] & United States v. Martinez-Gallegos (9th Cir.1987) 807 F.2d 868, 869–870
[fact that defendant previously had been deported inevitably would have been discovered
through examination of his immigration file].)
14.
impeachment.’ (Nix, supra, 467 U.S. at pp. 444–445, fn. 5.) The inevitable discovery
exception requires the court ‘ “to determine, viewing affairs as they existed at the instant
before the unlawful search, what would have happened had the unlawful search never
occurred.” ’ ” (Hughston, supra, 168 Cal.App.4th at p. 1072.)
“The prosecution must prove ‘by a preponderance of the evidence that the
information inevitably would have been discovered by lawful means.’ ([Citation];
see People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 681 [‘The test is not
one of certainty, but rather of a reasonably strong probability’].) ‘As this is essentially a
question of fact, we must uphold the trial court’s determination if supported by
substantial evidence.’ ” (People v. Fayed, supra, 9 Cal.5th at p. 184, first bracketed
insertion added.)
In this case, Mario called 911 to report that a suspect had threatened him and
stolen items from the store. Officer Kidwell testified that when he arrived at the location,
Mario pointed out defendant as the suspect while he was in the parking lot. Mario
identified defendant as the individual who had taken items from the store and threatened
to harm him. This evidence alone was enough to provide Kidwell probable cause to
arrest defendant without reliance upon the items found in defendant’s pockets during
Jauch’s searches. Defendant points out that the trial court relied upon “ ‘information
received and the items found’ ” by Jauch in applying the inevitable discovery doctrine.
We agree that our analysis of whether the evidence would have inevitably been
discovered cannot rely upon the items that Jauch found through his searches. (See, e.g.,
U.S. v. Boatwright (9th Cir. 1987) 822 F.2d 862, 864–865.) We have not relied upon
these items and still agree with the trial court’s conclusion as to the applicability of the
inevitable discovery doctrine and denial of defendant’s motion to exclude the evidence.
Kidwell testified that, after Jauch’s search, Kidwell searched defendant before
placing him in his patrol car to ensure that defendant did not have any weapons or
dangerous items during transport. Kidwell performed this search pursuant to standard
15.
policy requiring such a search before placing any suspect in a patrol car. Even if Jauch
had not patdown searched defendant or searched his pockets, Kidwell’s search of
defendant subsequent to arrest and prior to transport would have resulted in the seizure of
the pliers, key chain, and number stickers that defendant had taken from the store.
Defendant argues that inevitable discovery is inapplicable to this case because
while Kidwell obtained information establishing probable cause, Jauch’s illegal detention
of defendant was the only reason defendant was still in the parking lot when Kidwell
arrested him. According to defendant, even Kidwell’s discovery of the seized items
relies upon the illegal detention and is not truly independent. 15 However, we have
already concluded that defendant was lawfully detained. Given defendant’s arrest would
have occurred based upon Mario’s statements to Kidwell, Kidwell would have inevitably
discovered the items during a routine search of defendant pursuant to his arrest. Since
this search took place even though Jauch had already searched defendant, the items
seized from defendant would have inevitably been discovered.
We conclude substantial evidence supports the trial court’s conclusion that the
items taken from the store and found in defendant’s pockets by Officer Jauch inevitably
would have been discovered by Officer Kidwell when he searched defendant prior to
transporting defendant in his patrol car.
II. The evidence that defendant used force or fear to take property from employees
of the store was sufficient to support defendant’s robbery conviction.
Defendant argues the evidence was insufficient to demonstrate that he used force
or fear to take, asport, or retain the stolen items. We disagree and conclude that the
evidence was sufficient to support defendant’s robbery conviction.
15 The existence of a separate investigation is not the only way in which the prosecution
may show the evidence would have been inevitably discovered by lawful means. (U.S. v.
Boatwright, supra, 822 F.2d at p. 864 [“The existence of two independent investigations at the
time of discovery is not, therefore, a necessary predicate to the inevitable discovery
exception.”].)
16.
A. Standard of Review and Law
In reviewing the sufficiency of evidence to support a conviction, we examine the
entire record and draw all reasonable inferences therefrom in favor of the judgment to
determine whether it discloses substantial credible evidence from which a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks
(2017) 3 Cal.5th 1, 57.) We do not redetermine the weight of the evidence or the
credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60; People v. Young
(2005) 34 Cal.4th 1149, 1181 [“Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact.”].) We must accept logical
inferences that the trier of fact might have drawn from the evidence although we would
have concluded otherwise. (People v. Streeter (2012) 54 Cal.4th 205, 241, overruled on
other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834.) “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.” (Albillar, at p. 60.) “Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is sufficient to support
a conviction.” (Young, at p. 1181.)
Robbery is defined as “the felonious taking of personal property in the possession
of another, from his person or immediate presence, and against his will, accomplished by
means of force or fear.” (§ 211.) Robbery is larceny with the aggravating circumstances
that “the property is taken from the person or presence of another” and “is accomplished
by the use of force or by putting the victim in fear of injury.” (People v. Gomez (2008)
43 Cal.4th 249, 254, fn. 2.) In California, “[t]he crime of robbery is a continuing offense
that begins from the time of the original taking until the robber reaches a place of relative
safety.” (People v. Estes (1983) 147 Cal.App.3d 23, 28.) It thus is robbery when the
property was peacefully acquired, but force or fear was used to carry it away. (Gomez, at
pp. 255–256.)
17.
To establish that a robbery was committed by means of fear, the prosecution must
present evidence that the victim was in fact afraid, and such fear allowed the crime to be
accomplished. (People v. Montalvo (2019) 36 Cal.App.5th 597, 612.) “ ‘The fear is
sufficient if it facilitated the defendant’s taking of the property. Thus, any intimidation,
even without threats, may be sufficient.’ ” (Ibid.) The victim is not required to resist,
and the victim’s fear need not be extreme. (People v. Morehead (2011) 191 Cal.App.4th
765, 775.) All that is necessary is that the defendant demonstrates either conduct, words,
or circumstances reasonably calculated to produce fear. (Ibid.)
B. Analysis
In this case, Mario testified that he approached defendant and asked him to leave
the store. Defendant did not leave the store but rather, while threatening to harm Mario,
took items from the aisles and placed them in his pockets. There is no evidence that
Mario attempted to resist defendant’s taking of the items, but Mario testified that he was
frightened of defendant. Despite his fear, Mario followed defendant without attempting
to retrieve the property and repeatedly asked defendant to leave. When defendant
eventually did walk outside, he stayed in an area where merchandise was on display and
Mario continued to follow him. Defendant then took a fighting stance and threatened to
“kick [Mario’s] ass,” causing Mario to get out of defendant’s way because he was afraid.
Defendant took the items from the store without paying and was able to do so without
Mario’s interference because Mario feared defendant would hurt him. We conclude that
the evidence was sufficient to prove that defendant took property from Mario’s
immediate presence, against his will, using fear to prevent Mario from resisting.
Defendant argues that Mario had been ordering defendant to leave the store from
the outset of his encounter with defendant. While acknowledging that he did threaten
Mario and Mario was afraid of him, defendant argues that there is no evidence this fear
had any bearing on permitting defendant to retain possession of the stolen items. We
disagree. We believe that the jury could have reasonably inferred from the evidence that
18.
Mario did not resist defendant taking the property or attempt to recover it from defendant
because Mario was afraid that defendant would “kick [Mario’s] ass,” as threatened, if he
interfered. We must accept this logical inference in weighing the sufficiency of the
evidence. (People v. Streeter, supra, 54 Cal.4th at p. 241.)
Defendant appears to suggest fear was not used to take the property because
defendant put the property into his own pocket, rather than demanding that Mario do so,
citing People v. Morehead, supra, 191 Cal.App.4th at page 775. While in Morehead the
defendant used demand notes when robbing three banks (id. at pp. 768–769), nothing in
that opinion suggests that compelling a victim to comply with a demand is the only
manner in which fear can be used to commit a robbery. To the contrary, robbery is
committed where “the defendant used force or fear to take the property or to prevent the
person from resisting.” (People v. Scott (2009) 45 Cal.4th 743, 749, italics added, citing
CALCRIM No. 1600;16 see People v. Wright (1996) 52 Cal.App.4th 203, 210 [the
element of fear can be committed by conduct that intimidates the victim to the extent it
suspends his or her free exercise of will or resistance]; People v. Welsh (1936) 7 Cal.2d
209, 212 [robbery requires showing of force or victim’s fear to resist]; People v. Brew
(1991) 2 Cal.App.4th 99, 104 [sufficient evidence of fear where cashier in retail store
allowed the defendant to take money from cash register drawer after he stood close to
her, without barrier or counter between them]; People v. Prieto (1993) 15 Cal.App.4th
210, 215–216 [finding sufficient evidence of fear as to second woman where the
defendant snatched both women’s purses from lap of first woman in wheelchair,
struggled with woman in wheelchair, and second woman observed the struggle].)
Defendant also argues that his threats to Mario just outside the store were not
relevant as the robbery was completed because “[defendant] was already in a position of
16 In this case, the trial court instructed the jury with CALCRIM No. 1600, regarding the
use of force or fear: “Fifth, the defendant used force or fear to take the property or to prevent the
person from resisting.” (Italics added.)
19.
relative safety.” The evidence showed that defendant, while outside, was still in front of
the store and in an area where merchandise was on display for customers and Mario was
still following him. “A theft or robbery remains in progress until the perpetrator has
reached a place of temporary safety. [Citation.] The scene of the crime is not such a
location, at least as long as the victim remains at hand. (People v. Ramirez (1995)
39 Cal.App.4th 1369, 1375 [‘Phrased otherwise, the robbery is not “over” until the victim
has reached a place of temporary safety’]; [citation].)” (People v. Flynn (2000)
77 Cal.App.4th 766, 772, second bracketed insertion added.) The jury could reasonably
infer that defendant, knowing Mario had contacted the police, threatened Mario outside
the store to facilitate his escape and prevent Mario from either following him or
observing where he would go. (See People v. Gomez, supra, 43 Cal.4th at pp. 253, 265
[victim not present when property taken but the defendant used force when victim
followed him, intending to help police but not intending to apprehend him].)
We conclude that the evidence was sufficient to support defendant’s conviction of
second degree robbery.
III. The trial court did not abuse its discretion in denying defendant’s Pitchess
motion.
Before trial, defendant made a Pitchess motion requesting disclosure of
Officer Kidwell’s personnel records relevant to dishonesty and other misconduct. The
trial court granted the motion for an in camera review as to any matters involving
dishonesty. After reviewing the records, the court found no records required to be
disclosed. We have reviewed the records and see no abuse of discretion. 17
A trial court’s decision on a Pitchess motion is reviewed under an abuse of
discretion standard. (People v. Prince (2007) 40 Cal.4th 1179, 1285.) The exercise of
that discretion “must not be disturbed on appeal except on a showing that the court
17 The People respond that review is an idle act inasmuch as Officer Kidwell did not testify
at defendant’s trial. Given that Officer Kidwell’s veracity would be relevant to the trial court’s
decision on defendant’s motion to suppress, we do not agree that review is an idle act.
20.
exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted
in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.) We
review the record for “materials so clearly pertinent to the issues raised by the Pitchess
discovery motion that failure to disclose them was an abuse of Pitchess discretion.”
(People v. Samayoa (1997) 15 Cal.4th 795, 827.) The record of the trial court’s in
camera hearing is sealed, and appellate counsel are not allowed to see it. (See People v.
Hughes (2002) 27 Cal.4th 287, 330.) Thus, on request, the appellate court must
independently review the sealed record. (See Prince, at p. 1285.)
“A criminal defendant has a limited right to discovery of a peace officer’s
personnel records. [Citation.] Peace officer personnel records are confidential and can
only be discovered pursuant to Evidence Code sections 1043 and 1045.” (Giovanni B. v.
Superior Court (2007) 152 Cal.App.4th 312, 318.) “[O]n a showing of good cause, a
criminal defendant is entitled to discovery of relevant documents or information in the
confidential personnel records of a peace officer accused of misconduct against the
defendant. [Citation.] Good cause for discovery exists when the defendant shows both
‘ “materiality” to the subject matter of the pending litigation and a “reasonable belief”
that the agency has the type of information sought.’ [Citation.] … If the defendant
establishes good cause, the court must review the requested records in camera to
determine what information, if any, should be disclosed. [Citation.] Subject to certain
statutory exceptions and limitations [citation], ‘the trial court should then disclose to the
defendant “such information [that] is relevant to the subject matter involved in the
pending litigation.” ’ ” (People v. Gaines (2009) 46 Cal.4th 172, 179, last bracketed
insertion in original.)
We have reviewed Kidwell’s personnel records and find no relevant information
in them. We conclude the trial court did not abuse its discretion by deciding not to
disclose any records.
21.
DISPOSITION
The judgment is affirmed.
HILL, P. J.
WE CONCUR:
DETJEN, J.
FRANSON, J.
22.