People v. Phouamkha, A164249

CourtCalifornia Court of Appeals
Writing for the CourtBanke, J.
PartiesTHE PEOPLE, Plaintiff and Respondent, v. SAYKHAM PHOUAMKHA, Defendant and Appellant.
Docket NumberA164249
Decision Date29 June 2022

THE PEOPLE, Plaintiff and Respondent,
v.

SAYKHAM PHOUAMKHA, Defendant and Appellant.

A164249

California Court of Appeals, First District, First Division

June 29, 2022


NOT TO BE PUBLISHED

(Fresno County Super. Ct. No. F18905477)

Banke, J.

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.

1

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.

BACKGROUND

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]

2

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.

DISCUSSION

The Motion to Suppress and Section 995 Motion

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.

3

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

4

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 "rather you guys get a warrant but uh. You know what I mean." The officer responded "We appreciate you uh, just being cooperative. [¶] . . . [¶] [T]hen we can get out of here, because it's hot as hell out here right now. Am I right?" 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 "most clearly detained. The officer just walked up without any basis and demanded to search him." 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."

" '[T]he voluntariness of . . . consent is in every case "a question of fact to be determined in the light of all the circumstances." [Citations.]' [Citations.] Accordingly, the trial court's findings on this issue, either express or implied, must be upheld on appeal if they are supported by substantial evidence. All presumptions favor the proper exercise of the trial

5

court's power to judge the credibility of witnesses, resolve conflicts, weigh evidence, and draw factual inferences." (People v. Llamas (1991) 235 Cal.App.3d 441, 447.) "The prosecution bears the burden of showing that the consent to a search is voluntary and unaffected by duress or coercion. [Citations.] In every case, the voluntariness of a consent is a factual question to be decided in light of all the circumstances. [Citation.] The trial court's findings, on the issue of consent, whether express or implied, will be upheld on appeal if supported by substantial evidence." (People v. Aguilar (1996) 48 Cal.App.4th 632, 639.)

The "following factors are relevant to whether consent is voluntary: [¶] (a) Whether the person consenting was in custody. [¶] (b) Whether the arresting officers had their guns drawn. [¶] (c) Whether Miranda[5] warnings had been given. [¶] (d) Whether the person consenting was told that he or she had a right not to consent. [¶] (e) Whether the person consenting was told that a search warrant could be obtained. [¶] Even if a defendant is under arrest at the time of the search, that does not preclude a finding that his or her consent to the search was voluntary. (United States v. Watson (1976) 423 U.S. 411 . . . [consent was freely given following defendant's warrantless arrest; custody alone is not enough in itself to demonstrate coercion]; People v. Fischer (1957) 49 Cal.2d 442, 448 . . . [consent given while under arrest is not involuntary as matter of law]; People v. Monterroso (2004) 34 Cal.4th 743, 758 . . . [when consent to search was sought and given, defendant (1) had been arrested, (2) was in handcuffs, (3) had not been given Miranda warnings, and (4) had not been informed of right to withhold consent; these are factors to be considered, but did not preclude finding that consent was voluntary].)" (People v. Arter (2017) 19 Cal.App.5th Supp. 1, 6-7.)

6

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 asked if the pickup could be repaired immediately, stating he would pay double the price, so the men could return...

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