People v. Roberson CA2/6

Filed 6/28/23 P. v. Roberson CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B323314
(Super. Ct. No. BA497602)
Plaintiff and Respondent, (Los Angeles County)
v.
JESSE ROBERSON,
Defendant and Appellant.
Jesse Roberson appeals an order of probation granted
following his nolo contendere plea to possession of an assault
weapon, and possession of a firearm by a felon. (Pen. Code,
§§ 30605, subd. (a), 29800, subd. (a)(1).)1 We conclude that the
trial court properly denied Roberson’s motion to suppress
evidence pursuant to section 1538.5 and affirm.
FACTUAL AND PROCEDURAL HISTORY
The trial court held a preliminary examination and held
Roberson to answer for two counts of felony unlawful firearm
1 All statutory references are to the Penal Code.
possession. Roberson later filed a motion to suppress evidence of
the firearm, among other things, seized by Los Angeles police
officers during Roberson’s detention and arrest. On July 14,
2022, the trial court held an evidentiary hearing regarding
Roberson’s suppression motion. Witness testimony and a police
body-camera videotape set forth this evidence:
At approximately 11:00 p.m., on the evening of April 10,
2021, Los Angeles Police Officers Robert Resurreccion and Kiyan
Afshar were patrolling Manchester and Halldale Avenues in a
marked patrol vehicle. The officers drove near a strip mall which
contained a nightclub. They noticed Roberson standing by the
open driver’s door of a parked Mercedes vehicle. He appeared
nervous and startled as they approached. Roberson then turned
toward the interior of the vehicle and made a tossing or throwing
motion.
The officers parked their vehicle and walked toward
Roberson who was wearing a “tactical type vest” with an empty
firearm holster, and a badge. The back of the vest was marked
“Security.” The officers asked Roberson if he was armed, and he
responded that he was not. Concerned that Roberson discarded
contraband inside the Mercedes, the officers asked him to step
away from the vehicle and onto the sidewalk.
Resurreccion then decided to conduct a pat-down search of
Roberson. Prior to the pat-down, Roberson informed the officers
that he carried a knife on his person. Resurreccion placed
Roberson in handcuffs during the pat-down and investigation.
Resurreccion then walked to the Mercedes vehicle and
illuminated the inside through the fully open driver’s door.
Without breaching the threshold, he saw a semiautomatic
handgun near the driver’s seat. The officers arrested Roberson
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and recovered the firearm, which had a threaded barrel and no
serial number. The firearm was a Polymer 80 “ghost gun.”
The trial court admitted the body-camera videotape of the
encounter into evidence at the suppression hearing. The
videotape reflects the tactical vest marked “Security” that
Roberson was wearing.2 The videotape did not capture
Roberson’s nervousness or his throwing an item inside the
vehicle, but it did capture discovery of the firearm inside the
vehicle.3 The videotape also contained Roberson’s explanation
that he was hired to perform security for a birthday party at the
nightclub. The strip mall had illumination from streetlights,
billboard lights, business lights, and vehicle headlights. The
videotape also reflects unrelated people standing or walking
along the strip mall sidewalk near Roberson, his vehicle, and the
officers.
The trial court concluded that the police officers had a
reasonable suspicion to detain Roberson and Resurreccion
observed the firearm in plain view. The court found the
testimony regarding Roberson throwing or tossing an item into
the Mercedes vehicle “believable” because Resurreccion knew
where to look for the firearm. Further, the court concluded that
“a reasonable logical person could conclude that the defendant
tossed [the firearm] because when he saw the police coming into
the lot, he knew he was not a lawfully certified guard able to
2 Roberson requested that the videotape be transmitted to
this court. We reviewed the videotape.
3Roberson’s nervous demeanor and tossing behavior
occurred while the officers were driving in their patrol vehicle
approaching Roberson.
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carry the firearm.” The court then denied Roberson’s suppression
motion.
On July 14, 2022, Roberson waived his constitutional rights
and pleaded nolo contendere to possession of an assault weapon,
and possession of a firearm by a felon. (§§ 30605, subd. (a),
29800, subd. (a)(1).) The trial court suspended imposition of
sentence and placed Roberson on formal probation for two years
with terms and conditions.
Roberson appeals and contends that the trial court erred by
denying his suppression motion.
DISCUSSION
Roberson argues that the officers had no constitutional
basis to detain him for an investigative stop, to arrest him, or to
seize the firearm.
In reviewing a ruling on a motion to suppress evidence, we
defer to the court’s factual findings, express or implied, if they
are supported by substantial evidence. (People v. Silveria and
Travis (2020) 10 Cal.5th 195, 232.) We exercise our independent
judgment in determining whether, on the facts presented, the
search or seizure was reasonable under the Fourth Amendment.
(Ibid.)
The Fourth Amendment permits an officer to initiate a
brief investigative detention when he has a particularized and
objective basis for suspecting the particular person stopped of
criminal activity. (Kansas v. Glover (2020) _ U.S. _ [206 L.Ed.2d
412, 419]; People v. Silveria and Travis, supra, 10 Cal.5th 195,
236.) Although a mere hunch does not create reasonable
suspicion, the level of suspicion the standard requires is
considerably less than proof of wrongdoing by a preponderance of
the evidence and obviously less than necessary for probable
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cause. (Ibid.) The standard depends on factual and practical
considerations of everyday life on which reasonable and prudent
men act. (Ibid.) Reviewing courts must consider the totality of
circumstances on a case-by-case basis to determine if the officer
had a particularized and objective basis for his suspicion.
(United States v. Arvizu (2002) 534 U.S. 266, 273.)
There is narrowly drawn authority to permit a reasonable
search for weapons for the protection of the police officer when he
has reason to believe that he is dealing with an armed and
dangerous individual. (Terry v. Ohio (1968) 392 U.S. 1, 27.) “The
officer need not be absolutely certain that the individual is
armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or
that of others was in danger.” (Ibid.)
Roberson’s detention was supported by a particularized and
objective basis for suspecting him of criminal activity. The
totality of circumstances indicates that Roberson displayed a
nervous, startled expression at the presence of the police and
tossed an item into his vehicle. When the officers stopped their
patrol vehicle, they saw that Roberson wore a tactical vest
marked “Security” but that his gun holster was empty. One
commonsense inference from these circumstances, taken
together, is that Roberson tossed a firearm into the vehicle.
Moreover, asking Roberson to step away from his vehicle
and handcuffing him in order to perform a pat-down search was
“warranted in the belief that [the officers’] safety . . . was in
danger.” (Terry v. Ohio, supra, 392 U.S. 1, 27.) As reflected in
the body-camera videotape, Roberson was physically larger than
the officers and, as he informed them, he had a knife on his
person. He also began to manipulate and unzip his tactical vest
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while speaking with the officers. The officers immediately asked
him to turn around and the handcuffing occurred. Handcuffing a
suspect during a detention does not necessarily transform the
detention into an arrest. (Washington v. Lambert (9th Cir. 1996)
98 F.3d 1181, 1186; People v. Stier (2008) 168 Cal.App.4th 21,
27.)
When Resurreccion stood at the threshold of the fully open
door of Roberson’s vehicle, he saw a firearm in plain view. He
seized the firearm and immediately identified it as a ghost
weapon without a serial number. Roberson’s vehicle was parked
in a public parking lot and his driver’s door was open. Objects
falling in the plain view of an officer who has a right to be in the
position to have that view are subject to seizure. (Harris v.
United States (1968) 390 U.S. 234, 236.)
DISPOSITION
The orders denying Roberson’s suppression motion and
granting probation are affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
CODY, J.
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Kevin P. Stennis, Judge
Superior Court County of Los Angeles
______________________________
Alice Newman, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
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