People v. Johnson, B282810
| Citation | 230 Cal.Rptr.3d 869,21 Cal.App.5th 1026 |
| Decision Date | 28 March 2018 |
| Docket Number | B282810 |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Corey JOHNSON, Defendant and Appellant. |
Melissa L. Camacho-Cheung, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
Following the denial of a motion to suppress evidence found during a search of his car, Corey Johnson pleaded no contest to one count of sale of a controlled substance (cocaine base) and admitted that the crime had been committed to benefit a criminal street gang and that he had previously been convicted of a serious felony within the meaning of the three strikes law. On appeal Johnson contends the motion to suppress should have been granted because the warrantless search of his car was neither a valid search incident to his arrest nor supported by probable cause to believe the car contained contraband or evidence of criminal activity. We affirm.
While monitoring the Nickerson Garden Housing Development on closed circuit television on May 5, 2016, Los Angeles Police Officer Darryl Danaher saw a woman approach a man as he was walking by a baseball field.1 The man produced a knotted clear plastic bag and poured off-white, rock-like substances into his left hand. He then extended his left hand.2 The woman picked out one of the off-white solids with her right hand and handed what appeared to be a $5 bill to the man. The two individuals then walked away from each other.
As the transaction was taking place, Officer Danaher called three narcotics officers into the surveillance room to watch with him. When the exchange was completed, the narcotics officers left to try to apprehend the man. Danaher continued watching the closed circuit feed and observed the man walk a short distance, enter a car and drive away. He relayed a description of the car and its license plate number to the narcotics officers.
A short time later the man returned, parked the car inside the housing development and got out from the driver's side. Officer Danaher watched him walk away from the parking area and again transmitted information about the man's location to the other officers.
Two officers, Detective Michael Owens and Officer Joshua Fluty, made contact and arrested Johnson. Owens searched Johnson's pockets and found car keys. He did not find any money or drugs. Owens and Fluty then drove to the parking lot where Johnson's car had been parked, approximately two blocks from the site of the arrest.
The two officers parked their car and approached the vehicle Johnson had been driving. A young woman was in the driver's seat. Officer Fluty walked to the passenger side of the car and saw a small bag containing what appeared to be marijuana in the middle of the front passenger seat. Fluty reported this to Detective Owens, who asked the young woman to step outside the car. When she did, Owens smelled marijuana and saw the bag with marijuana on the passenger seat.3 The woman told Owens she was watching the car for her uncle. Fluty asked her uncle's name; she replied, "Corey."
Detective Owens searched the car. In the armrest of the rear passenger door he found a clear plastic bag containing several off-white solids that appeared to be rock cocaine. He also found a $5 bill and an electronic benefits transfer (EBT) card with the name "Corey Johnson." The substance in the baggie was subsequently tested and found to contain 1.37 grams of cocaine base.
After being charged with possession of cocaine base for sale ( Health & Saf. Code, § 11351.5 ) and sale of a controlled substance (cocaine base) ( Health & Saf. Code, § 11352 ), Johnson waived his right to counsel, pleaded not guilty and moved to suppress the evidence discovered in the warrantless search of his car. ( Pen. Code, § 1538.5.) Several weeks later Johnson withdrew his waiver of counsel. Appointed counsel filed a supplemental motion to suppress.
Johnson's motion was considered by the court in conjunction with the preliminary hearing. After hearing testimony and argument from counsel, the court denied the motion.
The court first found there was probable cause to arrest Johnson after the officers witnessed him selling what appeared to be a controlled substance. (The court pointed out that, although Johnson's face was not identifiable on the video, his shirt and hat—a red and gray/black baseball cap and a shirt with "23" on it—were "unbelievably unique.") The court then ruled under Arizona v. Gant (2009) 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 ( Gant ) the officers were entitled to search Johnson's car
As a second basis to uphold the search the court ruled, because Johnson's car had just been driven, the officers had ample evidence to believe he had transported marijuana in violation of Health and Safety Code section 11360, subdivision (a).4
Johnson was originally charged in a felony complaint with one count of possessing cocaine base for sale and one count of selling, furnishing or transporting a controlled substance (cocaine base). The information filed following denial of the motion to suppress evidence added special allegations that the crimes had been committed for the benefit of a criminal street gang ( Pen. Code, § 186.22, subd. (b) ) and Johnson had suffered one prior drug offense ( Health & Saf. Code, § 11370.2, subd. (a) ) and three prior serious felony convictions within the meaning of the three strikes law ( Pen. Code, §§ 667, subds. (b) - (j), 1170.12 ) and had served five prior prison terms for felonies ( Pen. Code, § 667.5, subd. (b) ).
Pursuant to a negotiated agreement, Johnson pleaded no contest to selling cocaine base and admitted the offense had been committed to benefit a criminal street gang allegation and he had one prior strike conviction. The second charge and additional special allegations were dismissed. Johnson was sentenced to an eight-year state prison term.5
" ’ " ( People v. Suff (2014) 58 Cal.4th 1013, 1053, 171 Cal.Rptr.3d 130, 324 P.3d 1 ; accord, People v. Macabeo (2016) 1 Cal.5th 1206, 1212, 211 Cal.Rptr.3d 34, 384 P.3d 1189 ; Robey v. Superior Court (2013) 56 Cal.4th 1218, 1223, 158 Cal.Rptr.3d 261, 302 P.3d 574 ; see People v. Ayala (2000) 24 Cal.4th 243, 279, 99 Cal.Rptr.2d 532, 6 P.3d 193.)
Although it is a settled principle of appellate review that a correct decision of the trial court will be affirmed even if based on erroneous reasons, the Supreme Court has cautioned that "appellate courts should not consider a Fourth Amendment theory for the first time on appeal when ‘the People's new theory was not supported by the record made at the first hearing and would have necessitated the taking of considerably more evidence ...’ or when ‘the defendant had no notice of the new theory and thus no opportunity to present evidence in opposition.’ " ( Robey v. Superior Court , supra , 56 Cal.4th at p. 1242, 158 Cal.Rptr.3d 261, 302 P.3d 574.) However, when "the record fully establishes another basis for affirming the trial court's ruling and there does not appear to be any further evidence that could have been introduced to defeat the theory," a ruling denying a motion to suppress will be upheld on appeal. ( Green v. Superior Court (1985) 40 Cal.3d 126, 138-139, 219 Cal.Rptr. 186, 707 P.2d 248 ; see People v. Walker (2012) 210 Cal.App.4th 1372, 1383, 152 Cal.Rptr.3d 424 ; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1004-1005, 241 Cal.Rptr. 208.)
The question whether relevant evidence obtained by assertedly unlawful means—that is, in violation of the Fourth Amendment—must be excluded is determined by deciding whether its suppression is mandated by the federal Constitution. ( Cal. Const., art. I, § 24 ; People v. Macabeo , supra , 1 Cal.5th at p. 1212, 211 Cal.Rptr.3d 34, 384 P.3d 1189 ; see People v. Schmitz (2012) 55 Cal.4th 909, 916, 149 Cal.Rptr.3d 640, 288 P.3d 1259 ; People v. Lomax (2010) 49 Cal.4th 530, 564, fn. 11, 112 Cal.Rptr.3d 96, 234 P.3d 377.)
A search incident to a lawful arrest is a well-established exception to the general rule prohibiting warrantless searches. ( Riley v. California (2014) 573 U.S. ––––, 134 S.Ct. 2473, 2482-2483, 189 L.Ed.2d 430 ; United States v. Robinson (1973) 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 ; People v. Macabeo , supra , 1 Cal.5th at p. 1213, 211 Cal.Rptr.3d 34, 384 P.3d 1189.)
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