People v. Phouamkha
Decision Date | 29 June 2022 |
Docket Number | A164249 |
Parties | THE PEOPLE, Plaintiff and Respondent, v. SAYKHAM PHOUAMKHA, Defendant and Appellant. |
Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
(Fresno County Super. Ct. No. F18905477)
After defendant Saykham Phouamkha consented to a search of his van the police found ammunition, which he was prohibited from possessing due to a prior felony conviction. He was arrested and a search of his backpack, incident to his arrest, yielded a loaded firearm. Defendant was charged and convicted by jury of unlawfully possessing a gun and ammunition. The trial court then found two prior strike allegations true, and sentenced defendant to consecutive indeterminate 25-years-to-life sentences.
On appeal, defendant maintains (1) his consent to the search of the van was involuntary and therefore the gun and ammunition should have been suppressed, (2) a North Carolina second degree murder conviction did not qualify as a prior strike and (3) the trial court erroneously believed it did not have discretion to impose concurrent, rather than consecutive, sentences.
We conclude remand is required for the trial court to exercise its discretion as to whether defendant's sentences shall run concurrently or consecutively, but in all other respects, we affirm.
After Fresno police received a tip that defendant was carrying a weapon, Detective Ger Vang and Officer Scott Gray were dispatched to a local apartment complex. They approached defendant in the carport of the complex and asked for permission to search his vehicle, which he ultimately gave. Detective Vang found a box of .40 caliber ammunition on the rear passenger seat. The officers arrested defendant for possession of ammunition by a felon. The officers then searched defendant and found a gun in the backpack he was wearing.[1]
Defendant was charged with unlawful possession of a firearm and ammunition. (Pen. Code, §§ 29800, subd. (a)(1), 30305, subd. (a)(1).)[2] The district attorney also alleged defendant had two prior strike convictions, assault with a deadly weapon and second degree murder, both based on convictions in North Carolina.[3] Defendant moved to suppress evidence of the ammunition and firearm, which the court denied. He then filed a motion to set aside the information on Fourth Amendment grounds, which the court also denied.
A jury found defendant guilty on both counts, and the court found true both prior "strike" allegations. The court sentenced defendant to an indeterminate term of 25 years-to-life for possession of the firearm and a consecutive term of 25 years-to-life for possession of the ammunition.
Defendant challenges the denial of his motion to suppress and section 995 motion, asserting his "purported consent to search was involuntary."[4](Underscoring omitted.) He claims his initial detention was unlawful, vitiating any subsequent consent and that officers also "flagrantly pressured [him] to permit a search."
At the hearing on the motion to suppress, Detective Vang testified he "received an e-mail from one of [his] Section 8 contacts," informing him a "subject . . . was seen with a handgun" at an apartment complex in Fresno.
Detective Vang looked up the individual's name in the police "records management system" and located defendant's name.
Detective Vang and Officer Gray went to the apartment complex and approached defendant, who was working on some speakers in the carport. A van was parked "diagonally across two of the carports." They "immediately patted [defendant] down for officer safety" based on the tip they had received that he had a firearm, but did not find one.
Police then asked for permission to search the van. Detective Vang did not get a warrant in advance because "[t]here was not enough information . . . just based on the anonymous tip I got from [the section 8 contact]." Defendant initially refused to consent to a search of his van, the carport area or his apartment, and told police they needed to get a warrant. Police asked "him to let us conduct our follow up investigation," and defendant ultimately gave permission to search the van. Police found a box of live .40 caliber ammunition in the van.
Defendant told them to stop searching, and the officers arrested him for possession of the ammunition.
After defendant was arrested, the officers searched defendant and his backpack. They found a loaded .40 caliber handgun in the backpack. Detective Vang had previously conducted a records check and learned defendant had two firearms registered to him, but not the one they found in his backpack.
A videotape of Officer Gray's body camera recording was admitted at the hearing. The transcript of the recording indicates that after defendant refused to consent to a search of the apartment, the officers repeated five times over the course of a few minutes that they would "get out of [his] hair" and twice that they would "[s]top ruining [his] day" if he would consent to a search. The officer then asked, in regard to the van, "I can go in here?" Defendant responded "Yes, you may man." Defendant then stated he would The officer responded Defendant responded "Yes, it is." The officer then said "All right," and defendant responded "Yes, Sir." Based on the time stamp on the transcript of the body camera recording, the time from when police first approached defendant and when he consented to the search of the van was a little over 9 minutes.
The court, sitting as a magistrate, concluded defendant was not initially detained and consented to the search of his van. It further concluded that following the discovery of the ammunition, defendant was properly arrested and the search of his person and backpack was lawful incident to arrest.
Defendant subsequently filed a section 995 motion to set aside the information, again challenging the search. The superior court concluded the magistrate "got it wrong" and defendant was The court denied the motion, however, concluding "there was sufficient attenuation from that point [(the asserted detention)] to [defendant's] consent to allow search of the van."
" (People v. Llamas (1991) 235 Cal.App.3d 441, 447.) (People v. Aguilar (1996) 48 Cal.App.4th 632, 639.)
The (People v. Arter (2017) 19 Cal.App.5th Supp. 1, 6-7.)
Defendant asserts his consent to the search of the van was "presumptively involuntary" because he was assertedly illegally detained and pat searched, citing People v. $48,715 United States Currency (1997) 58 Cal.App.4th 1507 (United States Currency).
While the court in United States Currency did observe that a search following an unlawful detention may be "tainted," the case does not assist defendant here. To the contrary, it supports the denial of his motions.
In United States Currency, the claimant in a forfeiture proceeding appealed from a summary judgment of forfeiture on the ground his motion to suppress should have been granted and, had it been, the government could not have established probable cause that the disputed cash was forfeitable. (United States Currency, supra, 58 Cal.4th at p 1510.) The claimant was a passenger in a pickup truck that was so overloaded an axle buckled and it became disabled on the freeway. (Ibid.) When a tow truck arrived, the driver of the pickup...
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