People v. DeCosse

• Decision Date: 16 July 1986
• Citation: 183 Cal.App.3d 404,228 Cal.Rptr. 114
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Steven Donald DeCOSSE, Defendant and Appellant. A030751.

Page 114

228 Cal.Rptr. 114

183 Cal.App.3d 404

PEOPLE of the State of California, Plaintiff and Respondent, v. Steven Donald DeCOSSE, Defendant and Appellant.

A030751.

Court of Appeal, First District, Division 1, California.

July 16, 1986.

Review Denied October 2, 1986.

John K. Van de Kamp, Atty. Gen., Ronald E. Niver, Josanna Berkow, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Carolyn Morris, Berkeley, for defendant and appellant.

ELKINGTON, Acting Presiding Judge.

Defendant Steven Donald DeCosse (DeCosse ) was convicted by a jury's verdicts of the crimes of possession of methamphetamine for sale (Health & Saf. Code, § 11378), carrying a concealed firearm upon his person (Pen. Code, § 12025), and carrying a loaded firearm on his person while in a public place in an incorporated city (Pen. Code, § 12031). He appeals from the judgment entered on the jury's verdicts.

We affirm the judgment for the reasons we now state.

The appeal's principal contentions relate to DeCosse's unsuccessful Penal Code section 1538.5 motion to suppress certain evidence deemed essential to his conviction.

Our authority on such a contention is stated by People v. Leyba, 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961, as follows:

"In People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621], we discussed the two-step process by which a superior court rules on a motion to suppress evidence under section 1538.5, and the different standard by which an appellate court reviews each of those steps. In the first step the trial court must 'find the facts' relating to the challenged search or seizure: e.g., it must decide what the officer actually perceived, or knew, or believed, and what action he took in response. These are traditional questions of fact, and the statute vests the superior court with the power to decide them. (Pen.Code, § 1538.5, subd. (i).) Accordingly, we reaffirmed in Lawler (at p. 160 [107 Cal.Rptr. 13, 507 P.2d 621] ) that for the purpose of finding those facts 'the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.' [Our emphasis.]

"No less important, however, is the second step of the process. As we observed in Lawler, 'The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution.' (Ibid.) Because 'that issue is a question of law,' the appellate court is not bound by the substantial evidence standard in reviewing the trial court's decision thereon. Rather, we explained, in such review it is 'the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.' (Ibid.) On that issue, in short, the appellate court exercises its independent judgment."

"Evidence, to be 'substantial' [our emphasis] must be of ponderable legal significance ... reasonable in nature, credible, and of solid value." (People v. Johnson, 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738; Estate of Teed, 112 Cal.App.2d 638, 644, 247 P.2d 54.) And when a jury's verdict or a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the finding of fact, and when two or more inferences can reasonably be deduced from the facts as found, a reviewing court is without power to substitute its deductions for those of the trial court or jury. It is of no consequence that the trier of fact believing other evidence, or drawing different inferences, might have reached a contrary conclusion. (People v. Johnson, supra, 26 Cal.3d 557, 576-577, 162 Cal.Rptr. 431, 606 P.2d 738; Grainger v. Antoyan, 48 Cal.2d 805, 807, 313 P.2d 848.)

We consider the first two of DeCosse's contentions as they are phrased by him: "The initial detention of appellant was unlawful as it exceeded the bounds of time or reason necessary to stop him [and] the exploratory search of the truck was unjustified and beyond the scope of that permitted for minor traffic violations."

For some reason not apparent from the record, the municipal and superior court proceedings on the several charges were inordinately time taking and delayed. Witness' recollection of the events leading up to DeCosse's arrest differed in some respects from hearing to hearing and to trial. We state the material and relevant evidence as it reasonably could have been, and presumably was, found true by the superior court on the motion to suppress.

Police Officer Conway had been advised by the narcotics bureau that one Walker was heavily involved with narcotics or dangerous drugs, that he had a prior police record, that he had a "fondness for weapons" and to "be careful" of him. And Officer Conway "knew" defendant DeCosse. Following such information Officer Conway had occasion to make a here unchallenged stop of a black pickup truck. It was occupied by Walker, and by DeCosse whom the officer "recognized." A "warrant check" disclosed outstanding warrants against the vehicle, but the car and its occupants were nevertheless allowed to depart without further incident. The vehicle stop was reported to police headquarters, and the officer was told that the county sheriff's office was presently working on a case in which both Walker and DeCosse were "heavily involved in dealing drugs."

Soon thereafter a citizen told Officer Conway "that a black pickup truck had driven by and some garbage had come off the truck or fallen off the truck, he wasn't sure, but it landed in front of his house." The truck was described as containing "a bed, sleeping type bed in the back of it." A few minutes later and a short distance away the officer observed such a pickup truck with its described contents. Standing alongside it were DeCosse and Walker. Each produced driver's licenses, and they admitted that the garbage "had probably fallen off the truck." Probable violations of Penal Code sections 374b and 374b.5, misdemeanors, thus appeared. And the vehicle's registration was found not to be in the name of DeCosse or Walker. The officer decided to, and did, make a "warrant check" of the pickup truck's occupants.

DeCosse then said he wished to return to his vehicle for a cigarette, and to be sure that DeCosse obtained only a cigarette from the vehicle, the officer accompanied him. As DeCosse opened the pickup truck's door, in plain view in the door's "map compartment," the officer observed what appeared to be, and was, an opened alcoholic beverage container. There thus appeared a probable violation of Vehicle Code section 23223. The officer and DeCosse returned to the rest of the group. Then, as testified by the officer: "I decided that I was going to go back in the truck and take the bottle and cite him for the possible violation at the time and I went back, opened the driver's door, and the--leaned into the cab and between the center console I noticed a bullet, .38 caliber bullet, in a small Zip Loc bag on the top of the console. And at that point I kind of backed away and radioed for another unit thinking that I was probably dealing with two armed subjects now."

After calling for the police backup the officer went back to the pickup truck looking for further evidence of weapons. In a brown paper bag he found a bottle of white powder; it turned out not to be contraband. Backup police officers soon arrived, and it was decided to make a weapon search of DeCosse and Walker. Upon the officer's statement that he was going to search for guns or other weapons, DeCosse broke away and ran. As he did so the officer could see that: "He was reaching around behind his back and underneath he had a jacket on, short waist jacket. He was reaching behind his back underneath the jacket at that time.... All I could see is he was reaching for something." Soon DeCosse stumbled and fell, and he was apprehended and secured by the officer.

Believing that in his flight DeCosse had thrown something away from his person the officer retraced DeCosse's flight path. In doing so he found "a loaded .380 semi-automatic pistol," and a bandana handkerchief which contained the methamphetamine of one of the charges against him. And the handgun was the basis of the other charges. They, and statements thereafter made by DeCosse, were the subjects of the superior court motion to suppress.

Adverting now...