People v. Duarte

• Decision Date: 08 February 2022
• Docket Number: F082786
• Parties: THE PEOPLE, Plaintiff and Respondent, v. FRANK DUARTE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,
v.
FRANK DUARTE, Defendant and Appellant.

F082786

California Court of Appeals, Fifth District

February 8, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Madera County, No. MCR062145 Joseph A. Soldani and Dale J. Blea, Judges. ^[†]

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Devon Stein, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT ^[*]

Defendant Frank Duarte pled guilty to being a felon in possession of a firearm and possession of an assault weapon. He contends on appeal that (1) the warrantless search of his vehicle that led to the discovery of the firearm was unlawful because it was unsupported by probable cause and no exception to the warrant requirement applied, and (2) the fees imposed pursuant to former Penal Code section 1465.9^[1] and former Government Code section 29550.2 must be vacated as unenforceable and uncollectable pursuant to Assembly Bill No. 1869 (2019-2020 Reg. Sess.) (Assembly Bill 1869). The People disagree on the first issue, arguing that the search was supported by probable cause and exceptions to the warrant requirement. However, the People agree that defendant is entitled to the benefit of Assembly Bill 1869. We vacate the portion of the sentence imposing fees pursuant to former section 1465.9 and former Government Code section 29550.2. In all other respects, we affirm.

PROCEDURAL SUMMARY

On February 20, 2020, the Madera County District Attorney filed an information charging defendant with possession of a firearm by a felon (§ 29800, subd. (a)(1); count 1), possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count 2), possession of an assault weapon (§ 30605; count 3), possession of a short-barreled shotgun or rifle (§ 33215; count 4), possession of a large-capacity magazine (§ 32310, subd. (c); count 5), and discharging a firearm with gross negligence (§ 246.3, subd. (a); count 6).

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On December 11, 2019, defendant filed a motion to suppress evidence pursuant to section 1538.5. On February 7, 2020, the trial court denied defendant's motion based on the evidence presented on the same date at the preliminary hearing.

After the information was filed, defendant filed a motion pursuant to section 1538.5, subdivision (i), on October 29, 2020.

On December 21, 2020, defendant filed an amended motion to suppress evidence, based on the evidence presented at the February 7, 2020 preliminary hearing. On February 17, 2021, the trial court denied defendant's motion.

On April 14, 2021, pursuant to a negotiated plea agreement, defendant pled guilty to counts 1 and 3 in exchange for dismissal of the remaining counts and a stipulated two-year term of imprisonment.

On May 12, 2021, the trial court sentenced defendant to two years in prison as follows: on count 1, two years (the middle term); and on count 3, 16 days in jail with credit for time served.

On May 13, 2021, defendant filed a notice of appeal.

FACTUAL SUMMARY^[2]

On December 31, 2018, at approximately 11:30 p.m., City of Madera Police Officer Richard Gonzales responded to a call reporting gunshots on a block in the city of Madera. When Gonzales arrived at the call location, a fellow officer reported that he heard rapid-fire gunshots, saw muzzle flashes emanating from the backyard of one of two residences on the block, and "observed approximately two or three individuals in the area in the backyard where the gun was being fired." As Gonzales approached the two residences, he observed defendant exit the side gate of one of the residences and walk "at a brisk pace" toward a maroon sedan parked on the front lawn of that residence.

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He momentarily lost sight of defendant as defendant walked toward the maroon sedan. Two other people exited from the same gate and walked to a van parked in the driveway of the residence.

Gonzales and another officer stopped defendant before he entered the maroon sedan and searched his person. Gonzales did not locate any weapons on defendant's person. Gonzales asked defendant if he had fired a gun. Defendant denied having fired a gun.

Gonzales approached the residence in front of which the maroon sedan was parked. Defendant's mother answered the door and consented to officers searching the property for firearms and any evidence that firearms had been fired. In the backyard, Gonzales located "numerous spent shell casings of .233[-caliber]" ammunition that appeared to have been recently discarded. Within five minutes of his initial contact with defendant, Gonzales also located an AR-15 style rifle inside a backpack that sat on the front passenger seat of the unlocked maroon sedan that Gonzales knew to be registered to defendant and his wife. The rifle had an overall length of 23 inches, was capable of firing .233-caliber ammunition, and was equipped with an empty 30-round magazine. The firearm was not visible from outside the vehicle. No warrant was obtained prior to a search of the vehicle.

As Gonzales began to read defendant a Miranda^[3] admonition, other gunshots could be heard. Defendant interrupted Gonzales and said," 'Hear that[, ] big stupid[?] … I'm not the only one who's ripping.'" Gonzales told defendant that he had discovered defendant's firearm. Defendant responded that he would "just get another one."

After placing defendant under arrest, Gonzales drove to defendant's home and conducted a search with the permission of defendant's wife. Gonzales discovered

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.223-caliber ammunition, .357-caliber ammunition, and various other calibers of handgun ammunition, all inside a grey diaper bag.

DISCUSSION

Motion to Suppress Evidence

Defendant argues that the warrantless search of his vehicle was unsupported by probable cause, was not properly undertaken under the community caretaking exception to the warrant requirement, and was not a proper search incident to arrest. Defendant contends that the evidence obtained as a result of the search should have been suppressed. He argues that the trial court's failure to suppress the evidence requires reversal. The People disagree. They argue the officers' observation of gunshots being fired, the presence of fresh spent cartridges, and the absence of a firearm in the residence or on the person of defendant or the other men justified the search of the unlocked maroon sedan registered to defendant. We agree with the People. The search of defendant's vehicle was permissible under the automobile exception to the warrant requirement.

In reviewing a trial court's ruling on a motion to suppress, we review factual findings for substantial evidence and make all reasonable factual inferences in favor of the ruling. (People v. Zamudio (2008) 43 Cal.4th 327, 342.) We exercise our independent judgment to determine whether a search occurred and whether any search was reasonable under the Fourth Amendment. (Ibid.; People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Gutierrez (2018) 21 Cal.App.5th 1146, 1152.)

The federal and California Constitutions prohibit unreasonable searches and seizures. (U.S. Const., 4th & 14th Amends.; Cal. Const., art. I, § 13.) California law applies federal constitutional standards to the review of search and seizure rulings. (People v. Rogers (2009) 46...