People v. Blay, A138380

Decision Date16 September 2019
Docket NumberA138380
PartiesTHE PEOPLE, Plaintiff and Respondent, v. DEANDRE MAURICE BLAY et al., Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Marin County Super. Ct. Nos. SC165001A, SC165001B, SC165001C, SC165001D)

Tong Van Le was the victim of a robbery at his convenience store in San Francisco. Larry Brian Blay, Jr. was identified as one of the robbers, and was in jail awaiting his preliminary examination. On September 13, 2008, Le was killed in his car as it entered the garage of his Novato home.

The prosecution's theory, accepted by the jury, was that Tong Van Le was killed at the direction of Larry Brian Blay, Jr. because Le was expected to testify against him. Sean Demetrius Washington drove the vehicle that followed the victim driving home from the San Francisco market that Larry was accused of robbing. Deandre Blay, Larry's brother, identified the victim ("There he is") getting into his car, and gave Washington the orders to follow and "Don't lose him." Le had just opened his garage door, and driven his car into the garage, when Kevin Abram jumped out of Washington's car, ran into Le's garage, and fired a bullet into Le's face, while Le was still seated in his vehicle. Deandre Blay then left the car, went into the garage, and returned with Abram, who was carrying a gun. When Washington inquired "are there any bullets [left] in the gun?", Abram replied, "No." C. Autis Johnson, Jr., who also initially identified the victim, told Washington to drive away from the scene.

Originally indicted with the others, Washington, after pleading guilty to involuntary manslaughter, testified for the prosecution. All of the defendantsLarry Blay, Deandre Blay, Kevin Abram, and C. Autis Johnson—were found guilty of first degree murder (Pen. Code,1 § 187), preventing a witness from testifying (§ 136.1), and conspiring to commit those crimes (§ 182). The jury found true against all of the defendants the special circumstance allegation that the murder was committed to prevent Le from testifying (§ 190.2, subd. (10)); Abram, Johnson, and Deandre Blay were also found to have the additional special circumstance of committing the murder while lying in wait (id., subd. (15)). Johnson was also found guilty of being an accessory.2 (§ 32.) A variety of sentence enhancement allegations were also found to be true. All defendants have appealed from their life sentences.

The record, repeatedly augmented, is voluminous. The briefing, repeatedly supplemented, is extensive. The briefs commonly overlap on the issues. There is considerable joining in other arguments made by other defendants. (See fn. 5, post.) The briefs establish that the parties are familiar with the evidence presented at trial. The sufficiency of that evidence is challenged only for one crime—the murder—and then only on narrow points that differ from defendant to defendant. In short, there is considerable evidence that need not be summarized here in order to resolve the issues presented. Instead, in the hopes of reducing the length of this opinion, we will adopt a slightly novel structure of addressing challenges to evidence, to decide which evidence is proper to consider when addressing the sufficiency claims. Apart from this, the claims of error will be addressed in the order in which they allegedly occurred.

The murder occurred in 2008, the trial was in 2012, and sentencing was in 2013. The Honorable Terence Boren presided over every phase of the trial with exemplary dedication and conscientiousness, some of which will be reflected in various rulings that we will quote at length.

Ultimately, we conclude that the myriad attacks on the merits do not require reversal of any of the judgments of conviction. However, three of the four defendants, all except Larry Blay, were juveniles at the time of the murder. Since 2013, the law of juvenile punishment has been fundamentally transformed. This will require that the juvenile court be given the opportunity to decide whether those individuals should not have been tried as adults in criminal court. The judgment against Larry Blay will be affirmed.

DISCUSSION
The Suppression Motions

Defendants sought to remove a major part of the prosecution's evidence with three suppression motions, all of which were denied. We address them in the chronological order they were made.

I

Deandre Blay moved to suppress evidence and information obtained from the warrantless seizure and search (i.e., downloading the contents) of his cell phones. Abram filed his own motion for the same relief. The trial court ruled that Abram lacked standing to challenge the seizure of Blay's phone. After hearing testimony and extensive argument, the court denied the motion on its merits, concluding the searches were reasonable as incidental to his arrest, and as authorized by his probation search condition.3

Both motions were made under the authority of section 1538.5. Ordinarily," '[t]he 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. Redd (2010) 48 Cal.4th 691, 719.) Here, because the underlying facts are undisputed, our review is entirely independent. (People v. Zaragoza (2016) 1 Cal.5th 21, 57.) The evidence received in connection with this motion is summarized with admirable brevity and clarity by the highly experienced appellate attorney representing Deandre Blay:

"On September 17, 2008, San Francisco Police Sergeant Kevin Knoble entered the Alemany Projects4 at 5:00 p.m. in an unmarked police car with three other officers, on a routine patrol.

"Sergeant Knoble believed Deandre to be a member of the 'Alemany Projects gang,' although he acknowledged that no such gang was documented as a gang in police records on September 17, 2008. Moreover, he acknowledged that he knew Deandre was not listed with the probation department as a gang member, and that his probation did not have any gang conditions.

"As the officers entered Ellsworth Street, Sergeant Knoble saw Deandre with a group of other young men. The group took off running. Sergeant Knoble knew that Deandre had a probation search condition, and that he was a 'person of interest' in the shooting of Mr. Le. Therefore, when the young men ran, officers pursued them. Two of the officers followed Deandre to Jasmine Johnson's apartment at 948 Ellsworth Street. Deandre was in an upstairs bedroom, and there was a cell phone next to him on the bed. The phone had the number (415) 684-4775.

"Sergeant Knoble testified that in his opinion, the phone was 'part of him, his property,' and therefore, in his mind it was searchable pursuant to the probation search condition authorizing warrantless searches of Deandre's person, vehicle, or residence,even though the search condition did not specify that it applied to cell phones or other electronic devices.

"Sergeant Knoble immediately picked up the phone because he believed there would be incriminating evidence on it. He knew that a tremendous amount of information is often kept in cell phones. As he talked with Deandre, he began looking at pictures in the phone's memory. Knoble released Deandre to his mother, but he seized the phone. Sergeant Knoble did not have an arrest warrant or a search warrant for Deandre or for the cell phone at the time of this encounter.

"The next day, September 18, 2008, police conducted a Cellbrite download of all the information on the seized phone. The phone was locked, and the police had to unlock it in order to do the Cellebrite download. The data downloaded included numerous photographs, a list of incoming and outgoing calls, the text of numerous text messages, and a list of phone contacts. It also included the phone number of the phone and the name of the cell phone service provider, Metro PCS.

"Later that same day, September 18, 2008, Detective Jehad Amdjadi of the Novato Police Department composed an affidavit for a search warrant for the Metro PCS records for the phone.

"On September 29, 2008, Detective Sophia Winter of the Novato Police Department swore out an affidavit for an additional search warrant for service provider records for the same phone. Her affidavit was based on information obtained in the warrantless searches of that phone on September 17 and 18, 2008, including the September 18 Cellebrite download. The warrant was served on Metro PCS on September 29, 2008.

"On October 23, 2008, at 10:00 p.m., Sergeant Katherine Choy and other officers were on foot patrol on Ellsworth Street when they saw Deandre's grandmother in her car. She told them she was there to pick up Deandre at 936 Ellsworth Street. Sergeant Choy knew there was a warrant for Deandre's arrest. She and Officer Toomey went to 936 Ellsworth Avenue and arrested Deandre. Deandre's cell phone was seized. The seizure was done without a warrant. This phone had the number (650) 221-0227.

"The following day, Officer Kumli did a Cellebrite download on this second phone. Officer Kumli did not obtain a search warrant before doing the Cellbrite download.

"Detective Winter subsequently swore out an affidavit for a search warrant for the cell phone service provider records for the phone with the number (415) 684-4775 and for the newly-seized phone, which had the number (650) 221-0227. The affidavit was based primarily on information from the September 17 and 18 warrantless...

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