People v. Velazquez-Cordero

• Decision Date: 23 May 2022
• Docket Number: A156420
• Parties: THE PEOPLE, Plaintiff and Respondent, v. DANIEL VELAZQUEZ-CORDERO, Defendant and Appellant.
• Court: California Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. DANIEL VELAZQUEZ-CORDERO, Defendant and Appellant.

A156420

California Court of Appeals, First District, Third Division

May 23, 2022

NOT TO BE PUBLISHED

(San Mateo County Super. Ct. No. 17NF012699)

Fujisaki, Acting P. J.

A jury found defendant Daniel Velazquez-Cordero guilty of multiple counts of robbery and false imprisonment for his role in the armed robbery of a bank in Daly City. The evidence admitted at trial included cell phone records showing defendant's location in Daly City at the time of the robbery. On appeal defendant contends the trial court erred in admitting this location data evidence because it had been previously suppressed twice, and under Penal Code^[1] section 1538.5 subdivisions (j) and (p), the People could not relitigate the matter a third time. We find no error, as the second of the two rulings in question did not constitute a grant of a suppression motion within the meaning of section 1538.5. Accordingly, we affirm the judgment.

Factual and Procedural Background

Defendant was one of four individuals charged and convicted in connection with the 2016 robbery of the First National Bank in Daly City. The three others were Gabriel Mosby, Leroy Wilson, and Deon Taylor. The theory of the prosecution was that defendant (the gunman) and Taylor carried out the robbery inside the bank, while Mosby acted as a planner and lookout, and Wilson drove the getaway car.^[2]

The robbery occurred shortly after noon on September 15, 2016. Witnesses recalled two or possibly three men in masks and dark clothing, one of whom was armed with a gun, ordering the customers to get down on the ground. One of the suspects was heard speaking with a thick accent described as a Filipino accent.

Bank surveillance cameras captured video of two masked suspects and certain distinguishing features of their clothing including a black jacket with red striping along the sides and a white belt that hung down the side of one of the suspect's pants. Neighborhood surveillance cameras captured video of one suspect wearing a checkered backpack another suspect wearing all white shoes that stood out against his dark clothing; and a gold Cadillac driving from the scene just after the robbery. The suspects stole over $10, 000 from the bank and also took the purse of a bank customer, Raquel V.

Suspicious activity on Raquel V.'s credit card account led the police to Wilson, who was staying at a hotel in Pleasant Hill. Police arrested Wilson after he drove up to the hotel in a gold Cadillac that matched the vehicle seen in the surveillance videos. Police found a loaded semiautomatic firearm in the Cadillac and cash on Wilson's person that matched the serial numbers from the bank's "bait list" of bills taken during the robbery. A search of Wilson's hotel room led to the discovery of a plaid backpack that matched the backpack worn by one of the suspects on the surveillance videos, and inside the backpack were Raquel V.'s belongings. A letter in the hotel room led police to a Vallejo residence where they found Taylor and a jacket with distinctive red striping that matched the one seen in the bank surveillance video.

Police identified Mosby in the neighborhood surveillance videos and learned he was staying at a motel in Fairfield. There, police detained Mosby, Mosby's wife, and defendant and found $1, 405 on defendant's person. According to one of the arresting officers, defendant spoke with a "pretty thick, pretty pronounced" "Hispanic" accent. In the motel room, police found a pair of white sneakers, bottles of medication prescribed to defendant, and a pair of denim jeans with a white belt that matched the belt seen in the bank surveillance videos. Police found two cell phones in the purse of Mosby's wife, one of which had the word "Vortex" on its back and had a phone number that matched the phone number on the bottles of medication prescribed to defendant (hereafter the Vortex phone). When a detective powered on the Vortex phone, a picture of defendant appeared on the home screen, and when the detective called the number associated with the phone, he heard a voicemail message in Spanish mentioning defendant's name.

Defendant was arrested and charged by felony complaint in case number 16NF011711 (hereafter the16NF case) with armed robbery and false imprisonment.^[3] Shortly after defendant's arrest, San Mateo County Superior Court Judge Jeffrey R. Finigan signed a search warrant for the Vortex phone's records in the possession of the T-Mobile cell phone company, including the phone's location data in the weeks surrounding the bank robbery (hereafter the Finigan warrant). The return on the Finigan warrant eventually disclosed that the police were unable to do a physical download of the Vortex phone's contents, but they were able to obtain T-Mobile records containing location data for the phone.

In May 2017, defendant moved to suppress and to traverse/quash the Finigan warrant. Hearings were held in August and September 2017. Judge Finigan found that although he had previously signed the warrant, he now realized the supporting affidavit did not state sufficient probable cause against defendant, and he rejected as inapplicable the good faith exception to the exclusionary rule (see United States v. Leon (1984) 468 U.S. 897). Accordingly, Judge Finigan quashed the Finigan warrant for lack of probable cause against defendant. However, he ruled that the seizure of the Vortex phone at the time of defendant's arrest was appropriate because the officers knew defendant was subject to a probation search condition.

Shortly after Judge Finigan's ruling, law enforcement executed a second warrant affidavit to obtain the T-Mobile location data for the Vortex phone. On September 13, 2017, San Mateo County Superior Court Judge Robert D. Foiles signed the warrant (hereafter the Foiles warrant).

The following day, the parties appeared before the Honorable Clifford V. Cretan for continued jury trial proceedings. Although not in the record before us, both the People and the defense apparently filed motions regarding the admissibility of the location data evidence. Defendant contended the People were bound by Judge Finigan's prior suppression ruling, while the prosecutor argued the evidence was admissible because it was independently obtained pursuant to the Foiles warrant. For reasons discussed more fully below, Judge Cretan agreed with the defense and ruled that the location data evidence could not be used at trial (hereafter the 9/14/17 ruling).

In October 2017, data was successfully extracted from the Vortex phone. A photograph found on the phone, created at 11:24 p.m. on September 15, 2016 (the date of the bank robbery), depicted a hand holding a large sum of currency. The downloaded data also included an outgoing chat message dated September 15, 2016, stating:" 'Kelly, come over here. I got a room, and I got money. Wherever you want, I'll pay you.'" Another message on the same date at 11:32 p.m. included a photograph of cash in various denominations and read," 'This is what I got.' "

The People moved to sever defendant's case in light of the new evidence recovered from the Vortex phone, but the motion was denied. Accordingly, the People dismissed the 16NF case against defendant and immediately filed a new case. In the new proceeding, case number 17NF012699 (hereafter the 17NF case), the district attorney filed an amended information charging defendant with four counts of second degree robbery (§ 212.5, subd. (c)) and five counts of false imprisonment by violence (§ 236), with personal firearm use enhancements as to each count (§§ 12022.5, subd. (a), 12022.53, subd. (b)).^[4]

Before trial in the 17NF case, defendant filed a motion in limine to "exclude any reference to the cellular location data [that] was previously suppressed pursuant to Penal Code section 1538.5 and was excluded by this court at the previous trial." In opposition, the People argued that the location data evidence had been suppressed only once by Judge Finigan, and that the People had then obtained a new warrant from Judge Foiles, which had not been challenged or quashed and thereby served as a valid independent source for the location data evidence.

At the June 19, 2018, hearing on the motion before Judge Cretan, defense counsel argued that because Judge Finigan quashed the Finigan warrant and Judge Cretan's 9/14/17 ruling held the location data evidence would be inadmissible at trial in the 16NF case, the prosecution was barred under section 1538.5, subdivisions (j) and (p), from a third attempt to justify the seizure of the location data evidence based on the Foiles warrant.

Judge Cretan disagreed, finding that his 9/14/17 ruling was not "suppressing the evidence, rather I believe I was simply excluding it from being used in that proceeding in deference to Judge Finigan's ruling under 1538.5(d). [¶] This is a different proceeding at this time. The vehicle that gives rise to the records being obtained is Judge Foiles' warrant, not Judge Finigan's. At this point Judge Foiles' warrant stands. At this point, I don't believe that I've ever made any ruling on the merits of this issue. . . . I believe (d) spoke to the fact that the evidence should not be allowed in that proceeding in part because of the ruling by Judge Finigan, but also one of the consideration[s], which is on the record, was the timing of everything and the fairness to the defense, which they've announced ready for trial under certain assumptions and the assumptions were changing. So all that being said, I don't believe . . . there's any basis for excluding the evidence in this proceeding." Accordingly, Judge Cretan denied the defense's motion and ruled that "[t]he...