People v. Blay

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

BY THE COURT:

The opinion filed herein on September 16, 2019 is modified as follows:

1. On page 3, the second line of footnote 3 is modified to read:

probationer, his residence, and his property, "with or without reasonable or probable cause"; it did not specifically cover cell phones or electronic devices.

2. The paragraph commencing with the final line of text on page 11, and concluding on line 8 of page 12, is modified to read:

downloading of information from the cell phone. However, as Deandre points out in his petition for rehearing, this reasoning cannot apply to the initial search of September 17 because he was not under arrest. This leads naturally to the other ground for Judge Boren's ruling—that the search was proper under Deandre's probation search condition. (See fn. 3, ante.) Prior to our Supreme Court's recent decision that even a juvenile probation condition which explicitly referenced electronic devices was constitutionally vulnerable unless shown to be reasonably related to preventing future criminality (In re Ricardo P. (2019) 7 Cal.5th 1113), the Courts of Appeal were split on the issue. (Cf. People v. Sandee (2017) 15 Cal.App.5th 294 [2015 search of cell phone data permitted by same probation condition as here] with In re I.V. (2017) 11 Cal.App.5th 249 262 ["[r]easonably construed," probation condition requiring minor to submit his "property" and "any property under [his] immediate custody or control" to search "applies only to tangible physical property, and not to electronic data"].) But all of these decisions involved a challenge to the condition on direct appeal after it was imposed. None involved what is presented here, what is in essence a collateral attack in a subsequent prosecution, where a challenge to the scope and/or validity of a probation condition has been deemed untimely and inappropriate. (E.g., People v. Howard (1997) 16 Cal.4th 1081, 1095; People v. Bowen (2004) 125 Cal.App.4th 101, 106; People v. Dixon (2003) 113 Cal.App.4th 146, 150.)

In any event, the search condition authorized searches "with or without reasonable or probable cause." Conditions with this broad language generally exclude only police action that qualifies as arbitrary or capricious. (E.g., In re Jaime P. (2006) 40 Cal.4th 128, 138; People v. Bravo (1987) 43 Cal.3d 600, 610.) Judge Boren concluded that the police action in seizing his cell phone(s) and downloading its contents was "clearly not" arbitrary, but was "proper and reasonable." We reach the same conclusion.

2. On page 26, the following sentence is added at the end of the third full paragraph:

Nor was it a denial of due process, because Blay has failed to demonstrate that the ensuing trial was actually infected with " 'gross unfairness.' " (People v. Mendoza (2000) 24 Cal.4th 130, 162.)

3. On page 30, the sixth line of the first full paragraph is modified to read:

(People v. Mendoza, supra, 24 Cal.4th 130, 158; accord, In re Scott (2003) 29 Cal.4th

4. On page 83, at the end of the first full paragraph, the following is added as a new footnote:

In his petition for rehearing, Johnson claims we did not address his argument that the instruction was also improper because it "violated" Evidence Code section 1101. The sole mention of this statute in Johnson's opening brief was that it was made part of anobjection in the trial court. This fleeting citation was insufficient to require discussion. (See Cal. Rules of Court, rule 8.204(a)(1)(B).)

5. On page 84, the third line of the fifth full paragraph is modified to read:

or premeditation.

6. On page 99, lines 6 and 7 are modified to read:

on a valid ground," (Chiu, supra, 59 Cal.4th 155, 167; accord, People v. Aledamat (2019) 8 Cal.5th 1, 12-13.)

7. On page 100, the final line for footnote 31 is modified to read:

Aledamat, supra, 8 Cal.5th 1, 12-13.)

8. On page 108, line 3 of the third full paragraph is modified to read:

and headed towards Le. Abram was about to be intercepted by Johnson's father, but Johnson very loudly said

These modifications do not effect a change of the judgment.

The petitions for rehearing are denied.

October 15, 2019

/s/_________

Richman, Acting P. J.

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...

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