People v. Farley

THE PEOPLE, Plaintiff and Respondent, v. JONATHAN FARLEY, Defendant and Appellant.

A141798

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

November 16, 2015

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. 5-132309-6)

The magistrate denied appellant Jonathan Farley's motion to suppress (Pen. Code, § 1538.5)¹ and the trial court denied his motion to set aside the information and renewed suppression motion (§§ 995, 1538.5, subd. (i)). Farley pled no contest to two counts of possession of a firearm by a felon (§ 29800, subd. (a)(1)) and the court placed him on probation with various terms and conditions, one of which prohibited him from using alcohol and "frequent[ing] places where alcohol is the chief item of sale."

Farley appeals. He contends the magistrate erred by denying his motion to suppress and the trial court abused its discretion by imposing "alcohol-use probation conditions." We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are taken from the combined preliminary hearing and motion to suppress.

The February 26 Incident

On the evening of February 26, 2013, the Antioch Police Department received a report of a shooting in front of an Antioch liquor store. Antioch Police Officer James Colley arrived and interviewed Steven Nicholas, who told Officer Colley he saw 10-12 people in front of the store arguing. According to Nicholas, a teenager "was causing a disturbance" and the store owner tried "to diffuse the situation[.]" The store owner told the teenager to leave, but the argument continued. A man in his late 30's "confronted the juvenile" and told him to leave. The man and the teenager exchanged "profanities" and the man "got into . . . a blue Tahoe SUV-style vehicle[,]" and "brandished . . . a black revolver." The man fired five shots, two "toward the ground" and three "toward the sky." After the shooting, the man "stayed inside" the Tahoe, which "fled[.]"²

The March 1 Incident

Three days later, Nicholas drove by the liquor store at 6:00 p.m. and saw the Tahoe. At 6:11 p.m., Nicholas called the police, identified himself, and reported he saw "the same exact vehicle that appeared to be the one that night." He described the vehicle as a "blue Chevy Tahoe" and the individual as "a Black male roughly six-foot tall wearing a black . . . wife beater T-shirt . . . [and] jeans or dark pants." Dispatch informed Antioch Police Officer Thomas Lenderman that "an individual . . . called in stating that he sees an individual who's responsible for an earlier shooting and that individual is atthe store currently." At 7:25 p.m., Officer Lenderman arrived at the liquor store and saw the Tahoe in the parking lot. Several uniformed officers arrived; some were "on perimeter" and others were "around the blue Tahoe." Officer Lenderman entered the liquor store and saw Farley at the register.³ Farley "was the only person [in the liquor store] wearing black[.]" The other men in the store did not match Nicholas's description.

When Officer Lenderman walked in the store, Farley's hands were in his pockets. "[F]or officer safety," Officer Lenderman asked Farley, "can you please remove your hands from your pockets." Farley "pulled his hands out of his pockets" and placed "a set of keys . . . on the counter[.]" Officer Lenderman patted Farley down but did not direct Farley to "put his hands on his head." Officer Lenderman "wrapped both hands around [Farley's] waist" to ensure "the immediate danger area didn't conceal a weapon and it was a matter of seconds and then [it] was done."

Officer Lenderman "asked [Farley] if [he] could talk to him out front." The two men went outside the liquor store, where Officer Lenderman asked for Farley's identification and "held onto it[.]" Other officers were nearby. Officer Lenderman asked Farley whether he owned the Tahoe or knew who owned it, and whether he rode in it to the liquor store. Farley denied owning the Tahoe or knowing who owned it. He also denied riding in the Tahoe to the liquor store. Officer Lenderman ran the Tahoe's registration, which listed Farley as the owner. When Officer Lenderman confronted Farley with the registration, Farley replied "he no longer own[ed] the Tahoe and that he sold it" to a women "named Kim in Napa." The registration, however, showed Kim "had sold" or "turned the [Tahoe] over to" Farley. Because Farley continued to deny "any association" with the Tahoe, Officer Lenderman went into the liquor store to check the surveillance footage. "[A]nother officer" stood with Farley at a "patrol car . . . ten to 12 feet from the front door[.]"

The surveillance footage "showed [Farley] driving" the Tahoe into the parking lot at 5:08 p.m., and getting out of the driver's side door and walking into the liquor store. After watching the video, Officer Lenderman believed Farley lied about his association with the Tahoe, and that Farley's connection to the Tahoe warranted further investigation. Officer Lenderman handcuffed Farley and placed him in a patrol car. Within minutes, another officer brought Nicholas to the liquor store for an in-field show-up; Nicholas identified Farley "as the individual who shot the gun" on February 26, 2013 "by saying, 'That's him. I'm 100 percent sure.'" Nicholas told Officer Lenderman "he was sure [Farley] was the shooter because . . . he was feet away from him when the shooting happened." Officer Lenderman arrested Farley and retrieved the keys to the Tahoe because he planned to tow it. During his "inventory scan," Officer Lenderman opened the Tahoe's center console and found a black revolver "loaded with six live .22 caliber rounds[,]" and a PG&E bill in Farley's name.

Charges and Motion to Suppress

The People charged Farley with two counts of possession of a firearm by a felon (§ 29800, subd. (a)(1)), two counts of possession of a loaded firearm by a felon (§ 25850, subd. (a), (c)(1)), discharging a firearm with gross negligence (§ 246.3, subd. (a)), and being a felon in possession of a concealed firearm in a vehicle (§ 25400, subd. (a)(1)). The People also alleged sentencing enhancements.

Farley moved to suppress at the preliminary hearing (§ 1538.5). He contended the detention was illegal and the automobile exception did not justify the search of the Tahoe. Farley also claimed the search was not incident to arrest because he "was not detained from the [Tahoe], but from inside" the liquor store. The magistrate denied the motion, concluding "there was probable cause to detain" Farley, the detention was not "unduly prolonged," and the arrest occurred "after the show-up when [Farley] was advised he was under arrest[.]" The magistrate described Officer Lenderman as "credible" and determined he "would have eventually towed the [Tahoe]" and "the firearm would have been discovered during an inventory search[.]" The magistrate also found the automobile exception applied and held Farley to answer the charges.

Farley moved to set aside the information and renewed his suppression motion (§§ 995, 1538, subd. (i)). According to Farley, "Officer Lenderman did not have reasonable suspicion to justify the detention . . . one hour and fourteen minutes after a vague tip." Farley also argued the search of the Tahoe "was illegal because [it] was conducted without a warrant and [did] not meet any exception to the warrant requirement." In opposition, the People argued Officer Lenderman had reasonable suspicion to detain because Farley and the Tahoe matched Nicholas's description and because Farley lied about his connection to the Tahoe. The People also contended the search of the Tahoe was justified because Officer Lenderman reasonably believed "incriminating evidence could be" found in the Tahoe and because he "found it necessary to impound [the Tahoe] for safekeeping." The trial court denied both motions and concluded the magistrate properly denied Farley's initial motion to suppress.

Plea and Sentencing

Farley pled no contest to two counts of possession of a firearm by a felon (§ 29800, subd. (a)(1)) and admitted a prior felony conviction for possessing cocaine base for sale (Health & Saf. Code, § 11351.5). The court suspended imposition of sentence and placed Farley on probation for three years. At the sentencing hearing, the court indicated it would impose a probation condition requiring Farley "to abstain from the use of alcohol . . . and not frequent places where alcohol is the chief item of sale." Farley's counse objected, arguing: "I don't think there's any cause for a no alcohol clause. It's not addressed. I understand the general probation on drugs reiterates the law but I think he's legally entitled to . . . alcohol. . . . It's not a standard of formal probation." The court disagreed, stating the condition was a "standard term[ ] of formal probation unless it's bargained away[,]" and imposed the condition over Farley's objection. The probation order prohibits Farley from possessing or consuming alcoholic beverages and going "to places where alcoholic beverages are the chief item of sale."

DISCUSSION

I.The Magistrate Properly Denied the Motion to Suppress

"The standard of appellate review of a trial court's ruling on a motion to suppress is well established." (People v. Glaser (1995) 11 Cal.4th 354, 362.) "A criminal defendant may test the unreasonableness of a search or seizure by making a motion to suppress at the preliminary hearing and, if unsuccessful, renewing the motion in superior court if held to answer." (People v. Superior Court (2003) 114 Cal.App.4th 713, 717 (People); § 1538.5, subd. (i).) "In passing on a renewed motion to suppress, the defendant is entitled to review of the magistrate's...