People v. Mitchell CA3 ( 2024 )

Filed 10/1/24 P. v. Mitchell 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C098293
Plaintiff and Respondent, (Super. Ct. No. 20FE013583)
v.
LEMAR GATHAN MITCHELL,
Defendant and Appellant.
Suspecting criminal activity, a law enforcement officer patrolling a residential area
drove up behind a car driven by defendant Lemar Gathan Mitchell and activated his lights
and siren. Mitchell immediately drove away, a high-speed chase ensued, and Mitchell
eventually exited the car and fled on foot. An AR-15 rifle and Mitchell’s cell phone were
found in the abandoned car, and a Glock handgun was discovered along the path where
Mitchell had fled. Before releasing the car Mitchell had been driving from impound, law
enforcement affixed a Global Positioning System (GPS) tracking device to it. Three
weeks later, after tracking the GPS signal from the vehicle, law enforcement went to a
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house where Mitchell had been seen. After an hours-long standoff, during which
Mitchell resisted officers and assaulted a police dog, officers took Mitchell into custody.
A jury found Mitchell guilty of transporting an assault weapon, two counts of
possession of a firearm by a felon, evading a peace officer, striking a police dog, and
resisting a peace officer. The trial court found true the allegation that Mitchell had a prior
strike conviction and sentenced Mitchell to 14 years eight months in state prison.
On appeal, Mitchell argues that the trial court prejudicially erred: (1) in
connection with his motion to suppress evidence by (a) finding the detective was legally
justified in detaining him, (b) not excluding evidence discovered through a search of his
cell phone, and (c) failing to exclude additional evidence flowing from the warrantless
GPS tracking of Mitchell’s car; (2) by denying his motion to dismiss count one,
transporting an assault weapon, for insufficient evidence; and (3) in giving a special jury
instruction relating to the assault weapon count.
The People concede the trial court committed reversible error in giving the special
jury instruction and we agree. We will reverse the judgment as to count one and remand
for the People to retry Mitchell on that count if they so choose, and, in any event, for a
full resentencing. We otherwise will affirm the judgment.
BACKGROUND
An amended information charged Mitchell with transporting an assault weapon
(Pen. Code, § 30600, subd. (a); count one);1 possession of a firearm by a felon (§ 29800,
subd. (a)(1); counts two & three); evading a peace officer with willful or wanton
disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a); count
four); failing to stop at the scene of an accident (Veh. Code, § 20002, subd. (a); count
five); willfully, maliciously, and without legal justification striking, beating, or kicking a
1 Undesignated statutory section references are to the Penal Code.
2
dog under the supervision of a peace officer (§ 600, subd. (a); count six); and resisting a
peace officer during the discharge of their duties (§ 148, subd. (a)(1); count seven). The
information further alleged that Mitchell had been convicted of a prior strike. (See
§§ 1192.7, subd. (c), 667, subd. (b)-(i), 1170.12.)
The Trial
On August 2, 2020, Sacramento County Sheriff’s Office Detective Sina
Ghaffarpour was on patrol in Rancho Cordova when he observed a BMW driven by a
shirtless adult male whom he identified at trial as Mitchell. He encountered the same
vehicle and driver a little while later parked in front of a residence. For reasons we will
recite below, Detective Ghaffarpour believed he had reasonable suspicion to make
contact with Mitchell. He drove towards the BMW and activated his vehicle’s red and
blue lights and siren. The BMW suddenly drove off through the residential neighborhood
with Detective Ghaffarpour in pursuit. The speed limit in the area was likely 25 miles per
hour and Detective Ghaffarpour estimated that he pursued the BMW at 65 miles per hour.
The pursuit ended when the BMW pulled into a driveway and collided with a house.
When Detective Ghaffarpour caught up to the BMW, the driver’s door was open, and
Mitchell was no longer in the car.
In the BMW, Detective Ghaffarpour found on the floorboard of the back seat,
under a black plastic bag, a loaded AR-15 rifle with a 30-round magazine and a live
round in the chamber. The AR-15 rifle had centerfire ammunition in its firing chamber, a
pistol grip, and a detachable magazine. Detective Ghaffarpour did not know whether the
component on the end of the AR-15 rifle barrel was a flash suppressor or a muzzle brake.
Detective Ghaffarpour also found an unlocked cell phone on the driver’s seat. He opened
a social media application profile and recognized Mitchell in the photograph.
The resident of the house the BMW had rolled into approached Detective
Ghaffarpour and told him an individual matching Mitchell’s description had run through
his backyard and jumped the fence. The resident directed Detective Ghaffarpour to a
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loaded Glock handgun in the backyard with a high-capacity magazine and a live round in
the chamber. The handgun was found along Mitchell’s path of flight.
Having traced the ownership history of the BMW to a car dealership in Rancho
Cordova, Detective Ghaffarpour went to the dealership and spoke with the owner. He
identified T.M.2 as the purchaser of the BMW. She had been accompanied by Mitchell at
the time of purchase. According to the dealership owner, Mitchell selected the car but he
wanted it registered in T.M.’s name. The dealership owner furnished Detective
Ghaffarpour with paperwork, including a credit application. T.M. was listed as the
registered owner, but Mitchell also was listed on the credit application.
Approximately three weeks later, on August 24, 2020, law enforcement learned
that the BMW, which had been released after a GPS tracking device was concealed on it,
was at a house in Elk Grove. After Mitchell was seen at the house, law enforcement
officers surrounded it and made announcements for two hours trying to get Mitchell to
exit. Some family members in the home came out, but Mitchell did not. Law
enforcement fired tear gas into the detached pool house where they believed Mitchell was
located, but he did not emerge. Officers then breached the pool house door and deployed
Riley, a police dog. Riley located Mitchell and “they began fighting.” An officer fired a
beanbag shotgun at Mitchell, but Mitchell continued to fight with Riley, punching him,
lifting him up, and choking him. Officers advanced and, at some point, “went hands on”
with Mitchell, handcuffed him, and took him into custody. The parties stipulated that
Mitchell had previously been convicted of a felony offense.
Verdict and Sentencing
The jury found Mitchell guilty of transporting an assault weapon on count one,
possession of a firearm by a felon on counts two and three, evading a peace officer on
2 To protect her privacy, we refer to this witness by her initials. (Cal. Rules of
Court, rule 8.90(b)(10).)
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count four, striking a police dog on count six, and resisting a peace officer attempting to
discharge their duties on count seven. The jury found Mitchell not guilty of failing to
stop at the scene of an accident on count five. In a bifurcated proceeding, the trial court
found the prior strike allegation to be true.
The trial court denied Mitchell’s motion to strike his prior strike conviction and
sentenced him to a determinate term of 14 years eight months in state prison, consisting
of the middle term of six years on count one, doubled for the prior strike; the middle term
on count two stayed pursuant to section 654; and eight months, one-third the middle term,
on counts three and four, each doubled to one year four months for the prior strike. The
court imposed no additional time on the misdemeanor counts, six and seven.
DISCUSSION
I
Motion to Suppress
A. Additional Background
Mitchell filed a motion pursuant to section 1538.5 to suppress “all tangible and
intangible evidence obtained as the result of any illegal act including, but not limited to:
Motorola cell phone, AR-15 rifle, Glock 17 handgun, ammunition, and observations by
law enforcement officers.” Mitchell asserted there was no legal justification for his initial
detention on August 2, 2020, and that there was no legal justification for a warrantless
search of his cell phone. He later supplemented his motion, seeking to suppress “all
tangible and intangible evidence obtained from the warrantless” GPS tracking of the
BMW.
At the hearing on Mitchell’s suppression motion, Detective Ghaffarpour testified
that, on August 2, 2020, he observed the BMW driven by a shirtless adult male, Mitchell,
with no other occupants in the vehicle. As he continued patrolling, Detective
Ghaffarpour saw the BMW again, this time parked in front of a residence. It had a
standard California license plate on the front and a temporary plate on the rear, which did
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not match the letters and numbers on the front plate. This made him suspicious because,
in his training and experience, individuals engaged in criminal activity sometimes use
different license plates on their vehicles to avoid detection while committing crimes.
Detective Ghaffarpour ran a records check and discovered the vehicle was registered to a
woman, T.M., at an address different from where the BMW was parked. Mitchell drove
the BMW into the residence’s driveway, backed up, and then drove forward again.
Detective Ghaffarpour believed Mitchell’s activity could be indicative of a burglary or
theft crime commonly associated with the “high crime area.” He thus believed he had
reasonable suspicion to make contact with Mitchell.
Detective Ghaffarpour activated his red and blue lights and siren as he approached
the BMW from behind. The BMW backed out of the driveway and almost struck
Detective Ghaffarpour’s vehicle, stopped momentarily, and then sped off. As Detective
Ghaffarpour pursued the BMW through the residential neighborhood, Ghaffarpour
reached speeds of 65 miles per hour, and the BMW was outpacing him. At times,
Detective Ghaffarpour lost sight of the vehicle and, at other times, the vehicle was a
significant distance away. Eventually, Detective Ghaffarpour observed the vehicle in a
driveway with the driver’s door open and no one in the vehicle. The BMW had collided
with a residence. Detective Ghaffarpour believed the BMW’s engine was still running at
the time. An individual exited the residence and told Detective Ghaffarpour that a
shirtless adult male matching Mitchell’s description had run through his backyard. The
resident directed Detective Ghaffarpour to a loaded nine-millimeter handgun with a high-
capacity magazine and a round in the chamber in the backyard along the path where the
driver had fled. Law enforcement did not find Mitchell on August 2, 2020.
Detective Ghaffarpour searched the BMW. He discovered a loaded AR-15 rifle on
the rear floorboard and an unlocked cell phone on the driver’s seat. On the cell phone,
Detective Ghaffarpour opened a social media application and immediately recognized the
profile photo as Mitchell, and he eventually connected the username to Mitchell.
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On August 24, 2020, Sacramento County Sheriff’s Deputy Benjamin Gill was
searching for Mitchell who had a felony warrant. Deputy Gill located Mitchell by
tracking a GPS device law enforcement had attached to the BMW on August 5 “when it
was in the tow yard.” GPS monitoring had been a term of Mitchell’s previously imposed
postrelease community supervision, so Deputy Gill did not believe he needed a warrant to
affix the GPS device to the BMW.
The trial court denied Mitchell’s motion to suppress insofar as it was based on a
lack of justification for the detention, concluding Detective Ghaffarpour had reasonable
suspicion to justify the stop. The court also denied the motion to suppress evidence
related to the cell phone, concluding it had been abandoned. The court also concluded,
however, that Mitchell’s postrelease community supervision from 2015 did not extend
indefinitely, notwithstanding the fact that he absconded, and, therefore, a warrant was
required to place the GPS device on the BMW. The court therefore granted the request to
suppress GPS evidence.
Defense counsel noted that the GPS data allowed law enforcement to track
Mitchell to the location of his arrest, and that counts six and seven related to events
occurring during his arrest. He sought dismissal of counts six and seven and suppression
of all evidence “gleaned from” the GPS device. The trial court denied Mitchell’s request
to dismiss counts six and seven, and denied his request to suppress all other evidence
stemming from the use of the GPS device as too vague and not previously pled with
notice.
B. Applicable Principles of Law
“The Fourth Amendment protects against unreasonable searches and seizures.”
(In re Raymond C. (2008) 45 Cal.4th 303, 307.) “The touchstone of the Fourth
Amendment is reasonableness.” (Ibid.) “ ‘A detention is reasonable under the Fourth
Amendment when the detaining officer can point to specific articulable facts that,
considered in light of the totality of the circumstances, provide some objective
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manifestation that the person detained may be involved in criminal activity.’ ” (Ibid.)
“Whether an officer’s conduct was reasonable is evaluated on a case-by-case basis in
light of the totality of the circumstances.” (Ibid.) “ ‘ “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.” ’ [Citation.] In doing so we do
not consider each fact in isolation. Instead, ‘we must consider “the totality of the
circumstances—the whole picture.” ’ ” (People v. Flores (2024) 15 Cal.5th 1032, 1043.)
C. Initial Detention
Mitchell asserts the trial court erred in denying his suppression motion because the
court improperly concluded there was reasonable suspicion to justify his initial detention.
Before addressing reasonable suspicion, the People argue as a threshold matter that
Mitchell was never detained before he fled in the BMW and, later, on foot, and therefore
there was no Fourth Amendment violation.3 We agree.
A detention or seizure may occur “ ‘by means of physical force or show of
authority . . . .’ ” (People v. Brown (2015) 61 Cal.4th 968, 974, quoting Terry v. Ohio
3 In his reply brief, Mitchell argues the People “concede[] that this argument was
not made in the lower court.” This is incorrect. On the page cited by Mitchell, the
People acknowledged that the trial court did not rely on this argument. The prosecution
did argue in the trial court: “I don’t know if you can sufficiently establish that [Mitchell]
was actually detained since he didn’t actually feel free enough to leave since he actually
fled from the officer.” Moreover, “ ‘ we consider the correctness of the trial court’s ruling
itself, not the correctness of the trial court’s reasons for reaching its decision.’ ”
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364-365.) “ ‘ “[A] ruling or
decision, itself correct in law, will not be disturbed on appeal merely because given for a
wrong reason. If right upon any theory of the law applicable to the case, it must be
sustained regardless of the considerations which may have moved the trial court to its
conclusion.” ’ ” (People v. Zapien (1993) 4 Cal.4th 929, 976.)
8
(1968) 392 U.S. 1, 19, fn. 16.) “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.”
(Brown, supra, 61 Cal.4th at p. 974, italics added; see California v. Hodari D. (1991)
499 U.S. 621, 625-626 [holding that a seizure does not occur where law enforcement
makes a show of authority, but the subject does not submit to that authority].)
A case from the United States Court of Appeals for the District of Columbia
Circuit involves facts similar to those at issue here. While we “are not bound by the
decisions of the lower federal courts even on federal questions,” those decisions “are
persuasive and entitled to great weight.” (People v. Bradley (1969) 1 Cal.3d 80, 86.) In
United States v. Washington, after an officer driving a marked police car activated his
siren and ordered a vehicle to stop, the driver obeyed. (United States v. Washington
(D.C. Cir. 1994) 12 F.3d 1128, 1131.) However, as the officer approached the vehicle on
foot, it sped away. (Ibid.) In challenging the denial of his suppression motion, the driver
contended that when the officer “activated his sirens and ordered the driver . . . to stop, he
effectuated a seizure within the meaning of the Fourth Amendment.” (Id. at p. 1132.)
The appellate court concluded that “[a]lthough a reasonable person would not have
believed that she [or he] was free to continue driving once [the] [o]fficer . . . activated his
sirens and ordered the . . . driver to stop, [the driver] did not in fact submit to the officer’s
order. [The driver] initially stopped, but he drove off quickly before [the ] [o]fficer
. . . even reached the car. Because [the driver] did not submit to [the officer’s] order, he
was not seized within the meaning of the Fourth Amendment.” (Ibid.)
Here, we conclude that Detective Ghaffarpour engaged in a show of authority
when he approached the driveway where the BMW was parked with his blue and red
lights and siren activated. (People v. Brown, supra, 61 Cal.4th at p. 978 [“activating
sirens or flashing lights can amount to a show of authority”]; see id. at p. 980 [declining
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to “adopt a bright-line rule that an officer’s use of emergency lights in close proximity to
a parked car will always constitute a detention”].)
As in Washington, however, Mitchell never submitted to Detective Ghaffarpour’s
show of authority. In fact, this conclusion is more compelling here than in Washington.
In that case, the driver briefly complied with the officer’s order, stopping his moving
vehicle. (United States v. Washington, supra, 12 F.3d at p. 1131.) Here, Mitchell backed
out of the driveway, almost striking Detective Ghaffarpour’s vehicle, stopped
momentarily, perhaps to shift the transmission from reverse into drive or first gear, and
then sped off. Then, after a high-speed pursuit, Mitchell abandoned the BMW and fled
on foot, temporarily evading law enforcement. Whereas in Washington there was some
arguable evidence of compliance, here there was no evidence at all of Mitchell’s
submission to Detective Ghaffarpour’s authority.
We thus conclude Mitchell did not submit to Detective Ghaffarpour’s authority.
(United States v. Washington, supra, 12 F.3d at p. 1131; see also United States v. Jeter
(6th Cir. 2013) 721 F.3d 746, 750, 752-753 [the defendant, who paused briefly when
approached by officers, then ignored officers, discarded his bicycle, and fled on foot, did
not submit to authority]; United States v. Hernandez (9th Cir. 1994) 27 F.3d 1403, 1406-
1407 [the defendant’s actions in hesitating for a moment as an officer approached,
looking directly at the officer, and then fleeing were not sufficient to constitute
submission to authority].) Because Mitchell did not submit to Detective Ghaffarpour’s
authority, there was no seizure or detention. “Where there is no seizure, there can be no
Fourth Amendment violation.” (Jeter, supra, 721 F.3d at p. 753.) We uphold the denial
of Mitchell’s suppression motion on this ground.
D. Search of Mitchell’s Cell Phone
Mitchell argues the trial court erred in determining that his cell phone had been
abandoned and that no warrant was required to search it. We disagree.
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Generally, before searching data stored on a cell phone, law enforcement must
obtain a search warrant. (Riley v. California (2014) 573 U.S. 373, 386.) However, a
“warrantless search and seizure involving abandoned property is not unlawful, because a
person has no reasonable expectation of privacy in such property.” (People v. Parson
(2008) 44 Cal.4th 332, 345 (Parson).) “ ‘[T]he intent to abandon is determined by
objective factors, not the defendant’s subjective intent. “ ‘Abandonment is primarily a
question of intent, and intent may be inferred from words, acts, and other objective facts.
[Citations.] 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.’ ” ’ ”
(Id. at p. 346, quoting People v. Daggs (2005) 133 Cal.App.4th 361, 365-366 (Daggs).)
“ ‘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, supra, 44 Cal.4th at
p. 346.)
Here, Detective Ghaffarpour attempted to detain Mitchell by activating his
emergency lights and siren, but Mitchell drove away. After a brief high-speed chase,
Mitchell exited the BMW and fled on foot. The BMW rolled into a residence, the
driver’s door was left open, and, as Detective Ghaffarpour recalled, its engine was still
running. Detective Ghaffarpour located the unlocked cell phone on the driver’s seat.
We conclude that substantial evidence supports the trial court’s determination that
Mitchell abandoned the cell phone. “[P]roperty is abandoned when a defendant
voluntarily discards it in the face of police observation, or imminent lawful detention or
arrest, to avoid incrimination.” (Daggs, supra, 133 Cal.App.4th at p. 365.) Exiting the
BMW and fleeing on foot, Mitchell abandoned the BMW and everything in it, including
the cell phone, by running away from the car and its contents in the face of police
observation and imminent detention so as to avoid incrimination. His decision to flee and
leave the cell phone behind demonstrated an intent to abandon the cell phone. There is
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no evidence that Mitchell ever attempted to recover his cell phone. Instead, the objective
facts demonstrate Mitchell “ ‘ “ ‘so relinquished his interest in the [cell phone] that he no
longer retained a reasonable expectation of privacy in it at the time of the search.’ ” ’ ”
(Parson, supra, 44 Cal.4th at p. 346.)
Nor are we persuaded that the BMW’s recovery from the police impound lot
demonstrates that Mitchell did not abandon his cell phone. A third party’s recovery of the
vehicle, at least three days later, has no bearing on the objective facts surrounding
Mitchell’s intent, his abandonment of the cell phone, or whether he maintained a
reasonable expectation of privacy in the phone.
In Daggs, on which the prosecutor relied in the trial court, when police arrived at a
store following a robbery, officers found a cell phone near the cash register where an
employee had confronted the defendant. (Daggs, supra, 133 Cal.App.4th at p. 364.) In
the 20 to 30 minutes during which police were at the store, no one attempted to claim the
cell phone. (Ibid.) Police booked the cell phone into evidence, and, as of a week after
the robbery, no one had attempted to claim the cell phone. (Ibid.) A detective removed
the cell phone’s battery to view identification numbers to identify the owner. (Ibid.) In
his motion to suppress, the defendant contended the detective performed an illegal search
when he removed the cell phone’s battery. (Id. at pp. 364-365.) The trial court denied the
motion on the ground that the defendant had abandoned the cell phone. (Id. at p. 365.)
The Court of Appeal agreed, concluding the defendant abandoned the cell phone when he
left it in the store at the scene of a crime, fled, and did not attempt to recover the cell
phone. (Ibid.) The court noted that the defendant’s act in fleeing the scene “evinc[ed] his
intent not to reclaim” the cell phone. (Id. at p. 366.)
Mitchell distinguishes Daggs on the ground that, in that case, the defendant
abandoned his cell phone in a public place, whereas here Mitchell left his cell phone in a
private motor vehicle that was later recovered by its owner. While this could possibly be
a relevant distinction in another case, it is not one under the circumstances here. Indeed,
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Daggs is more harmful to Mitchell’s position than helpful. As the Daggs court noted,
“ ‘[a]n important consideration in evaluating a privacy interest is whether a person has
taken normal precautions to maintain his or her privacy.’ ” (Daggs, supra,
133 Cal.App.4th at p. 368.) The BMW was indeed a private motor vehicle. However,
Mitchell used it to evade an officer in a high-speed chase after he tried to detain him,
exited the car leaving the engine running and the door open, and fled on foot, while the
vehicle was left to collide with a house. Under these circumstances, it cannot reasonably
be argued that Mitchell took normal precautions, or any precautions, to maintain his
privacy interests in the cell phone. (Ibid.)
We conclude that substantial evidence supports the determination that, “by his
conduct, [Mitchell] objectively manifested an intent to abandon his property and thereby
relinquished any reasonable expectation of privacy with respect to it.” (Daggs, supra,
133 Cal.App.4th at p. 369.)
E. GPS Monitoring of the BMW
Mitchell asserts that, while the trial court correctly concluded that GPS monitoring
of the BMW violated the Fourth Amendment, the court “erred in failing to suppress all
law enforcement observations stemming from the fruits of illegal law enforcement
behavior . . . .” We disagree.
Mitchell relies on Wong Sun v. United States (1963) 371 U.S. 471. As our
Supreme Court explained, the United States Supreme Court in Wong Sun “held that an
illegal arrest immediately preceding the procurement of evidence ‘rendered (that
evidence) inadmissible as the “fruit” of the agents’ illegal action.” (People v. Sesslin
(1968) 68 Cal.2d 418, 427.) However, not “all evidence is ‘fruit of the poisonous tree’
simply because it would not have come to light but for the illegal actions of the police.”
(Wong Sun, supra, 371 U.S. at pp. 487-488.) “Rather, the more apt question in such a
case is ‘whether, granting establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of that illegality or instead by
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means sufficiently distinguishable to be purged of the primary taint.’ ” (Id. at p. 488.)
“That degree of ‘attenuation’ which suffices to remove the taint from evidence obtained
directly as a result of unlawful police conduct requires at least an intervening independent
act by the defendant or a third party which breaks the causal chain linking the illegality
and evidence in such a way that the evidence is not in fact obtained ‘by exploitation of
that illegality.’ ” (People v. Sesslin, supra, 68 Cal.2d 418 at p. 428.)
In In re Richard G., the case on which the prosecutor and the trial court relied, the
Court of Appeal stated: “An individual’s decision to commit a new and distinct crime,
even if made during or immediately after an unlawful detention, is an intervening act
sufficient to purge the ‘taint’ of a theoretically illegal detention.” (In re Richard G.
(2009) 173 Cal.App.4th 1252, 1262; accord, People v. Coe (1991) 228 Cal.App.3d 526,
531 [the “commission of a new crime by the defendant will ordinarily be an intervening
independent act of the defendant’s free will, which purges the primary taint of prior
police misconduct”].) That court stated that the exclusionary rule “does not immunize
crimes of violence committed on a peace officer, even if they are preceded by a Fourth
Amendment violation.” (In re Richard G., supra, 173 Cal.App.4th at p. 1261.) The court
noted, for example, that the exclusionary rule could not be expected to “operate to
exclude testimony that an unlawfully arrested person shot the arresting police officer.”
(Ibid.) Where “a police officer or third party sees a defendant commit a new crime at the
same time as the defendant is subjected to an unlawful detention or search,” it cannot be
said that the evidence of the new crime “ ‘resulted from’ or [was] ‘caused by’ the
unlawful arrest.” (Id. at p. 1262.) “Under those circumstances, the defendant’s new
criminal behavior breaks the causal link between any constitutional violation and
evidence of the new crime.” (Ibid.)
We conclude that evidence of Mitchell’s resisting police and striking a police dog
was admissible despite the unlawful use of the GPS tracking device. Mitchell’s decision
to commit these additional crimes was an intervening, independent act that dissipated or
14
purged any “taint” from the illegal GPS tracking. (In re Richard G., supra,173 Cal.App.4th at p. 1262; see also People v. Cox (2008) 168 Cal.App.4th 702, 712
[choice to resist arrest after illegal detention and to flee “were independent, intervening
acts, sufficiently distinct from the illegal detention to dissipate the taint”].) The trial
court properly declined to suppress evidence of law enforcement observations concerning
these acts which supported counts six and seven.
II
Motion to Dismiss Count One
Mitchell next argues that the trial court erred in denying his motion to dismiss
count one based on insufficiency of the evidence. Again, we disagree.
A. “Assault Weapons” and Transporting an Assault Weapon
Section 30510 defines “assault weapon” with a list of specified semiautomatic
firearms. Section 30515 additionally provides, in part: “Notwithstanding Section 30510,
‘assault weapon’ also means,” among other things, “any of the following: [¶] (1) A
semiautomatic, centerfire rifle that does not have a fixed magazine but has any one of the
following: [¶] (A) A pistol grip that protrudes conspicuously beneath the action of the
weapon. [¶] (B) A thumbhole stock. [¶] (C) A folding or telescoping stock. [¶] (D) A
grenade launcher or flare launcher. [¶] (E) A flash suppressor. [¶] (F) A forward pistol
grip.” (§ 30515, subd. (a)(1).)
Mitchell was charged in count one with transporting an assault weapon. “Any
person who, within this state, . . . transports, . . . any assault weapon . . . , except as
provided by this chapter, is guilty of a felony . . . .” (§ 30600, subd. (a).) As the trial
court instructed the jury, to prove Mitchell was guilty, the prosecution was required to
prove that: “One, the Defendant transported an assault weapon, specifically an AR-15
rifle. [¶] Two, the Defendant knew that he transported it. [¶] And, three, the Defendant
knew or reasonably should have known that it had characteristics that made it an assault
weapon.” (CALCRIM No. 2560.)
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B. Additional Background
In addition to Detective Ghaffarpour’s testimony about the AR-15 rifle he found in
the BMW, Sergeant William Vernon testified as an expert on firearms including assault
rifles. Sergeant Vernon viewed People’s Exhibit 5, in which the AR-15 rifle found in the
BMW appeared. He identified features that rendered the AR-15 rifle an assault weapon,
including a pistol grip that protruded prominently below the receiver of the rifle; an “A2
birdcage flash hider” that disperses the muzzle flash of the gunfire; and what appeared to
be a telescoping stock, although Sergeant Vernon testified he would have to examine the
AR-15 rifle itself to be certain about the stock. The AR-15 rifle also had a magazine
release button or “bullet button” which could be depressed allowing the magazine to be
removed. Sergeant Vernon testified that the AR-15 rifle was a centerfire rifle based on
the rifle’s use of centerfire ammunition, that it was semiautomatic based on the presence
of a gas tube and gas block, that it did not have a fixed magazine, and that it had a pistol
grip, a flash hider, and possibly a telescoping stock, bringing it within the definition of an
assault weapon. He testified the AR-15 rifle was, indeed, an assault weapon. On cross-
examination, Sergeant Vernon acknowledged he did not test fire the AR-15 rifle and
could not say with 100 percent certainty that it was a functioning firearm.
C. Standard of Review
An appellate court reviews the denial of a section 1118.1 motion “using the same
standard ‘employed in reviewing the sufficiency of the evidence to support a
conviction.’ ” (People v. Veamatahau (2020) 9 Cal.5th 16, 35.) The appellate court thus
examines “ ‘ “the entire record in the light most favorable to the judgment” ’ to determine
whether it discloses substantial evidence—‘ “evidence that is reasonable, credible, and of
solid value” ’—‘ “from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” ’ ” (Ibid.) “Our review ‘ “ ‘presume[s] in support of the
judgment the existence of every fact the jury could reasonably have deduced from the
evidence.’ ” ’ ” (Id. at pp. 35-36.) Our inquiry is into “whether there is ‘ “ ‘substantial
16
evidence of the existence of each element of the offense charged’ ” ’ such that any
rational jury may have convicted” Mitchell. (Id. at p. 36.)
D. Analysis
Sergeant Vernon testified that the AR-15 rifle pictured in People’s Exhibit 5 was a
semiautomatic centerfire rifle based on the rifle’s ammunition and the presence of a gas
tube and gas block, and that it did not have a fixed magazine, noting it had a “bullet
button” style magazine release button. Sergeant Vernon testified that the AR-15 rifle had
at least two, and likely three, additional features, any one of which would render the rifle
an assault weapon. (§ 30515, subd. (a)(1).) He unequivocally testified that the rifle had a
pistol grip that protruded prominently below the receiver of the rifle (Id., subd.
(a)(1)(A)), and an “A2 birdcage flash hider” that disperses the muzzle flash (Id., subd.
(a)(1)(E)). Additionally, it appeared to have a telescoping stock (Id., subd. (a)(1)(C)),
although he would have to examine the rifle to be certain. Based on these features,
Sergeant Vernon testified the AR-15 rifle found in the BMW was an assault weapon.
Detective Ghaffarpour also testified the AR-15 rifle was a centerfire rifle with a
detachable magazine and a pistol grip. Substantial evidence supported the jury’s verdict
on count one.
Mitchell’s argument that the evidence was insufficient rests in part on Sergeant
Vernon’s acknowledgment in cross-examination that he could not say with 100 percent
certainty that it was a functioning semiautomatic firearm. He explained that he could not
guarantee that it was not broken somehow.
Notwithstanding these remarks, Sergeant Vernon’s testimony was substantial
evidence the AR-15 rifle was an assault weapon, and he amply stated his reasons for
reaching this conclusion. The jury could reasonably have inferred that this loaded assault
weapon, with a live round in the chamber, being transported by Mitchell and concealed
under a black plastic bag, was a functional assault weapon. The jury also could have
inferred that a reason for Mitchell’s flight from law enforcement was his awareness of the
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operational assault weapon in the BMW. “ ‘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.
Jackson (2016) 1 Cal.5th 269, 345.)
Relevant to the element that Mitchell “knew or reasonably should have known that
[the rifle] had characteristics that made it an assault weapon” (CALCRIM No. 2560),
Mitchell asserts there was no evidence concerning his knowledge of firearms. As stated
in In re Jorge M., a case involving possession of an assault weapon rather than
transportation but which supplied the knowledge requirement for violation of section
30600, subdivision (a) (Judicial Council of Cal. Crim. Jury Instns. (2024 ed.) Authority to
CALCRIM No. 2560, p. 430), a conviction under that section requires “knowledge of, or
negligence in regard to, the facts making possession criminal” (In re Jorge M. (2000)
23 Cal.4th 866, 887 [addressing former § 12280, subd. (b)]). As CALCRIM No. 2560
made clear, the People must prove Mitchell “knew or reasonably should have known the
firearm possessed the characteristics” of a prohibited assault weapon. (In re Jorge M.,
supra, 23 Cal.4th at p. 887.) “The question of the defendant’s knowledge or negligence
is, of course, for the trier of fact to determine, and depends heavily on the individual facts
establishing possession in each case. Nevertheless, . . . the Legislature presumably did
not intend the possessor of an assault weapon to be exempt from the [Roberti-Roos
Assault Weapons Control Act of 1989’s; Stats. 1989, ch. 19, § 3] strictures merely
because the possessor did not trouble to acquaint himself or herself with the gun’s salient
characteristics.” (Id. at pp. 887-888.) Generally, someone with “substantial and
unhindered possession” of the assault weapon is expected to know if it is a prohibited
model or has features making it prohibited. (Id. at p. 888.)
Here, Mitchell was alone in the car that contained the AR-15 rifle. The evidence
also established Mitchell went to purchase the BMW with T.M., that he picked it out,
appeared on the credit application, and that other property belonging to Mitchell was
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found in the car. The jury could have reasonably inferred Mitchell had substantial, if not
exclusive, possession and control over the BMW and its contents. The jury also could
have inferred that Mitchell had “substantial and unhindered possession” of the AR-15
rifle such that he could reasonably be expected to know of the features rendering it
prohibited. That Mitchell was reasonably aware of the rifle’s features is further supported
by the fact that the qualifying features including, at the least, that it was a semiautomatic
centerfire rifle with a detachable magazine and a pistol grip protruding conspicuously
beneath the action were readily discernible. These facts are sufficient for the jury to
reasonably conclude Mitchell knew or reasonably should have known the AR-15 rifle
was a prohibited assault weapon.
III
Special Jury Instruction
During deliberations on January 20, 2023, the jury submitted a question to the trial
court, asking, “What is the standard definition to apply to ‘reasonably should have
known’ as it applies to Count 1 . . . ?” The prosecutor noted that another court addressed
a similar question by reinstructing the jurors with language from CALCRIM No. 200:
“Words and phrases not specifically defined in these instructions are to be applied using
their ordinary, everyday meanings,” and the court here eventually conveyed this language
to the jury. At 3:42 p.m. the jury indicated it had reached verdicts on six of the seven
counts and asked how to proceed. At 4:11 p.m., over Mitchell’s objection, the trial court
provided the jury with this special instruction derived from In re Jorge M., supra,23 Cal.4th 866: “ ‘Reasonably should have known’ is meant to describe that the People
need not prove that the defendant actually knew of the characteristics of the AR 15 as an
illegal weapon but that generally, a person possessing an object should take reasonable
steps to ascertain the characteristics of the object possessed. [¶] You may consider the
circumstances of the possession in determining whether the defendant reasonably should
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have known. [¶] The People must prove this charge beyond a reasonable doubt.” Nine
minutes later, the jury indicated it had reached a verdict.
Mitchell argues the trial court erred in giving this special instruction because it
was an incorrect statement of law, and it diminished the prosecution’s burden of proof.
The People agree, as do we.
“ ‘[I]n criminal cases, even in the absence of a request, the trial court must instruct
on the general principles of law relevant to the issues raised by the evidence. [Citations.]
The general principles of law governing the case are those principles closely and openly
connected with the facts before the court, and which are necessary for the jury’s
understanding of the case.’ ” (People v. Diaz (2015) 60 Cal.4th 1176, 1189.) “In
assessing a claim of instructional error or ambiguity, we consider the instructions as a
whole to determine whether there is a reasonable likelihood the jury was misled.”
(People v. Tate (2010) 49 Cal.4th 635, 696.) “A claim of instructional error is reviewed
de novo.” (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
The trial court’s special instruction told the jurors, in part, that “ ‘Reasonably
should have known’ ” incorporates the idea that, “generally, a person possessing an
object should take reasonable steps to ascertain the characteristics of the object
possessed.” The trial court incorporated and modified language from In re Jorge M.
which reads: “[B]ecause of the general principle that all persons are obligated to learn of
and comply with the law, in many circumstances a trier of fact properly could find that a
person who knowingly possesses a semiautomatic firearm reasonably should have
investigated and determined the gun’s characteristics.” (In re Jorge M., supra,
23 Cal.4th at p. 885, italics added.) In In re Jorge M., our Supreme Court was not
addressing a jury instruction. As courts have repeatedly cautioned, there is a significant
danger in “instructing a jury with language from an opinion that has nothing to do with
jury instructions.” (People v. Southard (2021) 62 Cal.App.5th 424, 427; see Morales v.
22nd Dist. Agricultural Assn. (2016) 1 Cal.App.5th 504, 526 [“judicial opinions are not
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written as jury instructions, are notoriously unreliable as such, and may have a confusing
effect upon a jury”].)
The People represent that they have found no jury instruction, statute, or case law
supporting the premise that “ ‘reasonably should have known’ ” is to be interpreted as
stated in the special instruction here. Nor have we in our own independent research.
The trial court’s special instruction could have the effect of lowering the
prosecution’s burden of proof. To establish guilt on count one, the prosecution was
required to prove beyond a reasonable doubt that “the defendant knew or reasonably
should have known that [the rifle] had characteristics that made it an assault weapon.”
(CALCRIM No. 2560; see In re Jorge M., supra, 23 Cal.4th at pp. 869-870, 887.) The
special instruction, however, imposed an affirmative duty on any “person possessing an
object” to “take reasonable steps to ascertain the characteristics of the object possessed.”
This is not an element appearing in section 30600 or in the CALCRIM instructions. Nor
did our Supreme Court in In re Jorge M. indicate this was an element of possession of an
assault weapon. Rather, the Supreme Court only stated in that case that “a trier of fact
properly could find that a person who knowingly possesses a semiautomatic firearm
reasonably should have investigated and determined the gun’s characteristics.” (In re
Jorge M., supra, at p. 885, italics added.)
As Mitchell and the People agree, the special instruction renders a violation of
section 30600, subdivision (a) something akin to a strict liability offense. Under the
special instruction, most if not all individuals could be found to have had a duty to
ascertain the characteristics of the object possessed. In In re Jorge M., however, the
Supreme Court specifically stated that possession of an assault weapon was not intended
to be a strict liability offense. (In re Jorge M., supra, 23 Cal.4th at p. 869.)
As given, we conclude the special instruction was erroneous.
“ ‘[I]nstructional error regarding the elements of the offense requires reversal of
the judgment unless the reviewing court concludes beyond a reasonable doubt that the
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error did not contribute to the verdict.’ ” (People v. Aledamat (2019) 8 Cal.5th 1, 10.)
We will make quick work of our harmless error analysis. At 11:48 a.m., the jury sought
clarification on the “definition to apply to ‘reasonably should have known’ ” in reference
to count one. The trial court reinstructed the jury with language from CALCRIM No.
200. At 3:42 p.m., the jury indicated it had reached verdicts on six of the seven counts
and asked how to proceed. At 4:11 p.m., the court provided the jury with the special
instruction. Less than 10 minutes later, the jury indicated it had reached a verdict. Under
these circumstances, we cannot conclude beyond a reasonable doubt that the error in
giving the special instruction did not contribute to the verdict.
We shall vacate the judgment on count one and remand to the trial court where the
People can elect whether to retry Mitchell on that count.
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DISPOSITION
The judgment on count one is reversed. The entire sentence is vacated. The
matter is remanded to afford the People the opportunity to retry Mitchell on count one if
they choose. Following retrial on count one, or upon the People’s election not to retry
Mitchell on count one, the trial court shall conduct a full resentencing. The judgment is
otherwise affirmed.
\s\ ,
Krause, J.
We concur:
\s\ ,
Mauro, Acting P. J.
\s\ ,
Mesiwala, J.
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