People v. Brown

• Decision Date: 21 March 2019
• Docket Number: F075004
• Parties: THE PEOPLE, Plaintiff and Respondent, v. DEANDRE LABAR BROWN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. DEANDRE LABAR BROWN, Defendant and Appellant.

F075004

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

March 21, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. BF160898A)

OPINION

THE COURT^*

APPEAL from an order of the Superior Court of Kern County. Colette M. Humphrey and Michael E. Dellostritto, Judges.^†

Tutti Hacking and Paul Kleven, under appointments by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Keith P. Sager, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Deandre Labar Brown pled no contest to possession of a firearm by a felon, a violation of Penal Code¹ section 29800, subdivision (a)(1), after his motion to suppress evidence was denied. Brown contends the trial court erred in denying his suppression motion. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Because Brown pled to the offense, the facts are taken from the August 11, 2016, suppression hearing.

An information filed on February 17, 2016, charged Brown in count 1, with possession of a firearm by a felon; in count 2, with carrying a loaded firearm in a vehicle in a public place; in count 3, with active participation in a criminal street gang; and in count 4, with receiving stolen property. It also was alleged that counts 1 and 4 were committed for the benefit of a criminal street gang. Further, as to each count, it was alleged that Brown had suffered a prior strike conviction, a prior serious felony conviction, and had served a prior prison term.

On June 28, 2016, Brown filed a motion to suppress evidence pursuant to section 1538.5. The motion alleged that Brown was unlawfully detained and the impound and search of his vehicle was illegal. The People filed written opposition to the motion to suppress on July 7, 2016. In their opposition, the People argued officers had reasonable suspicion to detain Brown; the detention was not unduly prolonged; and officers conducted a lawful inventory search of Brown's vehicle.

The suppression hearing was held on August 11, 2016. Bakersfield Police Officer James Montgomery testified he was patrolling the 800 block of R Street with his partner, Officer Nicholas Benavente, around 6:10 p.m. on July 23, 2015. Montgomery was a member of the Gang Task Force Unit and he observed "several subjects" with whom hewas familiar "wearing traditional gang colors." They were gathered in front of a residence located on R Street.

Montgomery ran a records check of the R Street address, which revealed that a Keon Brackenridge at that address was on probation. Montgomery called for additional officers from the Special Enforcement Unit. After backup arrived, officers headed toward the group of men. As officers approached, Brown and another man, Trevon Whatley, broke away from the group and headed toward the front door of the residence.

Montgomery noticed the pistol grip of a firearm protruding from Whatley's right pocket. After seeing the firearm, Montgomery believed, "[i]t was important to grab these two because they were distancing themselves from the group. And it was an officer's safety issue." Benavente "took control" of Whatley and Montgomery "took control" of Brown. Brown was detained because he was "within one foot" of Whatley and Montgomery was not sure if Brown "possibly had a firearm on him, as well."

Benavente put his hand on Whatley's pocket and felt the "outline of a semiautomatic firearm." The firearm was a Ruger .40-caliber semiautomatic pistol, of which Benavente took possession. Montgomery ran a records check of the serial number on the Ruger and found it had been stolen.

After finding the Ruger on Whatley, officers searched the other individuals there for weapons and sat them on the sidewalk in front of the residence. Officers then conducted a records check of each person on the scene, which took approximately 15 minutes. Montgomery conducted the pat search of Brown, after which Brown was placed in handcuffs. Montgomery testified he believed Brown to be involved in the criminal activity of "[c]onspiracy, gang member with a firearm in public, gang charges."

Montgomery subsequently was informed that Brackenridge was incarcerated in state prison and no longer residing at the residence. Montgomery and the officers did not enter the residence.

Officer Michael Malley arrived at the scene to assist with the investigation. When he arrived, there was a gray Buick parked in a way that obstructed traffic; the rear of the car was protruding six or seven feet into the roadway. Malley felt the vehicle was creating a traffic hazard, so he impounded the Buick.

An officer located the keys to the Buick in Brown's pocket and gave the keys to Malley. Malley conducted an inventory search of the Buick, according to department protocol. Among the items in the Buick was a loaded Desert Eagle .40-caliber handgun and several items of clothing "that could be described as Westside Crips gang clothing." A records check of the Desert Eagle's serial number revealed that it had been stolen.

Brown was in handcuffs by the time Malley arrived at the scene. Malley believed Brown's detention became an arrest sometime after he arrived at the scene, but before the search of the Buick. Malley testified he would never allow a gang member to move their own car under the circumstances at the scene because "[t]here maybe guns in the car. It would be a horrible officer safety mistake."

Montgomery did not see the keys to the Buick being removed from Brown's pocket. He was not the arresting officer and believed that Malley placed Brown under arrest. When asked why Brown was detained past the 15 minutes it took to conduct a records check, Montgomery responded that officers had to conduct interviews and an investigation, and no one is released until after that is completed. Montgomery estimated Brown had been detained about 30 to 40 minutes before the Buick was searched. The entire investigation took approximately one hour.

Brown presented defense witnesses at the suppression hearing. Monte Wilson testified Brown had called him to "shoot an album cover" and then he decided to stay and "shoot this scene for my movie." Wilson drove to the residence, parked his car behind Brown's vehicle, and set up his movie equipment. He had been on the scene about 45 minutes when police arrived.

Wilson testified that police stated they were there to conduct a probation search. Brown told officers no one was on probation and officers could not search them. Brown's aunt was "going to go back into the house" when police arrived. Whatley tried to go into the house before he was stopped by police.

Wilson testified he was filming events at the scene and recorded an officer pointing a Taser at Brown. Wilson was arrested at the scene and his camera was taken. The footage was missing when the camera was returned.

According to Wilson, Brown told officers they could not search his car. Wilson stated officers told Brown, "[w]e are going to search it anyway because it's parked illegally," or words to that effect. Wilson also heard officers state that they were going to tow Brown's car. Wilson claimed officers told Brown, " '[i]f we tow your car, we can search it.' "

Wilson maintained the clothing in the Buick was going to be used for the photo shoot, but never mentioned this to police at the scene. Wilson was not aware that Whatley had a gun, or that gang members were present. He did not know whether Brown was a gang member.

Wilson initially denied that Brown had appeared in any of his prior videos, but later acknowledged that Brown had appeared in a video entitled, "Dying Broke." Guns were part of the "Dying Broke" video.

Brown's aunt, Denisa Dixon, lived at the R Street residence and was home when Brown was arrested. A fence surrounded her front yard. The day officers arrived, Dixon was outside reading Brown a letter. Dixon went inside the house and officers knocked on her door. The officers announced they were there to conduct a parole search of her son, Brackenridge. Dixon told them Brackenridge was in Wasco State Prison.

Dixon estimated it was "15 or more" minutes after officers arrived that they searched Brown's car. Dixon did not see anyone pointing a Taser at Brown.

Dwayne Taylor was one of those detained by police, handcuffed, and seated at the curb. Taylor testified the officers asked everybody who owned the Buick and they searched everybody. When officers got to Brown and asked him about the car, Brown did not respond. An officer reached into Brown's pocket and retrieved the keys to the car. Brown repeatedly told officers they could not search his car. Taylor estimated they had been seated on the curb about 10 or 20 minutes before officers obtained the keys to the Buick.

After the presentation of evidence concluded, the parties argued the motion. The trial court took the matter under submission and indicated it would issue a written ruling.

The trial court issued its written ruling on August 17, 2016, denying the motion to suppress. The trial court found that Montgomery recognized at least three gang members among those gathered at the R Street residence. "Consistent with his duties of gang suppression, he runs the address and discovers it is that of a probationer subject to search. The court finds he had a good faith belief in his right to conduct a probation search of the residence at the time." The trial court found that, "[c]onsequently, the officers had a right to be where they observed the subsequent events."

The...