People v. Murphy
| Decision Date | 13 June 2018 |
| Docket Number | C078961 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ODIS SHAWN MURPHY, Defendant and Appellant. |
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found Odis Shawn Murphy guilty of possession of a firearm by a felon, and the trial court found he had two strikes (robberies). (Pen. Code, §§ 29800, subd. (a)(1), 211, 667, subds. (b)-(1), 1170.12.) The trial court sentenced him to prison for six years, and he timely appealed.
On appeal, defendant contends the trial court: (1) erred in denying his suppression motion; (2) mishandled his Marsden motions (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)); (3) mishandled his new trial motion; (4) erred in permitting a postverdict amendment to the information to correct the date of a prior strike conviction; and (5) erred in denying his Romero motions (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)).
Disagreeing, we shall affirm the judgment.
On September 16, 2014, two peace officers found defendant in possession of an old, rusty loaded revolver. One officer testified they "were fielding a service call" to the area, but neither referred to a 911 call. Defendant testified and admitted he was a felon. He claimed he and a friend found the gun in a dump. The friend was going to sell the gun to an antique dealer, but gave it to defendant that night because defendant recently had been attacked by a group of assailants in that area; however, defendant also claimed he did not think the gun was operable. Defense counsel argued to the jury that defendant possessed the "unreliable" firearm only as needed for self-defense and simply intended to display it if necessary. The jury found him guilty of felon in possession.
Defendant moved to suppress on the ground he had been subjected to a warrantless search while in a public place, shifting the burden to the People to demonstrate the lawfulness of the search. The People opposed the motion on the ground the circumstances as they reasonably appeared to the officers authorized the brief detention and the frisk of defendant, which disclosed the firearm, giving the officers probable cause to arrest him. The trial court denied the motion after a hearing. Defendant challenges this ruling on appeal. Applying the appropriate standard of review, we find no error.
Officer Matthew Nichols--who had 15 years on the job--testified that while on patrol with Officer Morrison, he saw defendant at about 2:30 a.m. in the parking lot of a Walgreen's store. Two or three people were on the sidewalk and there was another person (Daniel Rauls) with defendant. When defendant saw the officers he began walking to the parking lot, whereupon the officers pulled in and got out of their patrol car. Nichols had said, "Hello, guys, how's it going[?]" Defendant's companion spoke to Nichols; defendant first walked five or six feet away, and then immediately moved his right hand Defendant "made a furtive movement inward toward his waistband as if there was some sort of thing he was trying to secure on his person." Defendant seemed nervous, would not make eye contact with Nichols while Nichols was speaking with him, and "was grabbing the left side of his jacket area." Nichols asked if he could pat him down and defendant said, "Pat down for what?" Defendant then gestured with his right hand toward his navel area, causing Nichols to believe he might be armed. As Nichols drew closer to defendant, he saw a "large bulk," "a cylindrical-type of bulge representing a pipe or some type of object that was cylindrical within his jacket." Because Nichols thought this could be a pipe or a weapon, he held defendant from behind by the left armpit and patted him down. He first felt what he thought was a bladed object on the left side of defendant's jacket, and then felt the butt of a gun in the mid-waistband area, and called out "gun" to his partner; Morrison immediately applied a wrist-lock to secure defendant, then Nichols took control of the gun and handcuffed defendant.
Nichols testified that he had a firearm, a Taser, and pepper spray, but did not draw any of his weapons because he did not think it was necessary; he was confident the matter could be handled without using one of his weapons.
Defense counsel argued that if Nichols had really believed defendant was armed, he would have drawn one of his own weapons, but he did not do so.
After taking the matter under submission, the trial court ruled that what began as a consensual encounter resulted in a reasonable suspicion on the part of Officer Nichols, based on defendant's furtive and fidgety conduct, evasiveness, and movements towards his waistband, justifying the brief detention and patdown.1
We view the facts in the light most favorable to the People. (People v. Celis (2004) 33 Cal.4th 667, 679.) A consensual encounter becomes a detention when a reasonable person (that is, viewed objectively, not subjectively) would not feel free to leave, but would feel required to remain because of a show of authority by officers or other circumstances.
, and if the person actually submits to the show of authority [citation]." (People v. Brown (2015) 61 Cal.4th 968, 974, italics added.)
At that stage, we agree with defendant that it is critical to weigh "the coercive effect of police conduct as a whole, rather than emphasizing particular details . . . in isolation." (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
But "[a] detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.) When an officer reasonably believes a person may be armed and pose a threat, a brief detention (a seizure of the person) to conduct a so-called "patdown" search, or "Terry-frisk" (see Terry v. Ohio (1968) 392 U.S. 1, 27 ), is lawful.
(People v. Souza, supra, 9 Cal.4th at p. 229.)
Applying these rules to the facts found by the trial court supported by the record at the suppression hearing, we find no error in the denial of defendant's motion to suppress.
Defendant first contends he was detained when the officers got out of their car and began speaking to him, arguing he was thereafter submitting to "their show of authority." We disagree. Officer Nichols testified he simply said hello, and asked how things were going. Contrary to defendant's view, that innocuous question would not cause a reasonable person to feel restrained from leaving. (See In re Manuel G., supra, 16 Cal.4th at p. 822 [].) The patrol car did not have its spotlight or flashing lamps illuminated, and neither officer was using a flashlight, because there was sufficient lighting in the parking lot. The fact the officers were armed--a point defendant emphasizes--is insignificant; the officers neither drew their weapons nor threatened to do so. Nichols was just talking, as he was permitted to do, before defendant triggered his suspicions by his nervous demeanor and fidgeting and his repeated gestures toward his waistband, as well as Nichols's observation (before the seizure) of a large cylindrical object under his jacket.
Defendant cites People v. Garry (2007) 156 Cal.App.4th 1100 (Garry), but that case is distinguishable. In Garry, an officer was on nighttime patrol in a high-crime area when he lit his spotlight on the defendant, got out of the patrol car, and walked " 'briskly' " towards the defendant, closing a distance of about 35 feet in two to three seconds, and then asked the defendant whether he was on probation or parole. (Id. at pp. 1103-1104.) The defendant claimed the officer's "use of the spotlight and rapid approach" was so intimidating as...
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