People v. Session

93 Cal.App.5th 723

311 Cal.Rptr.3d 363

The PEOPLE, Plaintiff and Respondent,

v.Keandre Kelvon SESSION, Defendant and Appellant.

G060536

Court of Appeal, Fourth District, Division 3, California.

Filed July 19, 2023

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Andrew Mestman and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOORE, J.

Defendant Keandre Kelvon Session was convicted of five counts of residential burglary, street terrorism, and numerous enhancements. He offers two arguments on appeal. First, he claims the placement of a GPS surveillance device on his vehicle without a warrant was unconstitutional because the officer who did so did not offer specific testimony as to how he knew that defendant (who was, indeed, on parole) was on parole. We conclude this argument has no merit because no case or statute has ever articulated such a requirement with respect to parolee searches and we publish to clarify the law in this area. Second, defendant contends that due to changes in the law, he is entitled to a new trial where the gang counts are bifurcated from the other charges. Even if this change in the law should be retroactively applied, we find that any error was not reasonably likely to change the outcome of the case. Accordingly, we affirm the judgment.

IFACTS

Defendant was charged in an amended information with five counts of first degree residential burglary pursuant to Penal Code section 462, subdivision (a)¹ (counts one, three, five, seven & nine), four counts of misdemeanor petty theft pursuant to sections 484, subdivision (a) through 488 (counts two, four, six & eight), and street terrorism pursuant to section 186.22, subdivision (a) (count 10). It was further alleged that as to count one, the victim was present in the residence during the burglary (§ 667.5, subd. (c)(21)); as to the burglary counts, the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)); and that defendant had two or more serious or violent felony convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A), 1192.7).

Burglaries and Investigation

This case arises from a series of residential burglaries in 2019. On November 2, 2019, Brice H., who lived in Manhattan Beach, returned home to find his master bedroom's closet in disarray and several items missing, including two Rolex watches. Upon watching footage from his home security system, he saw a white Audi he did not recognize back into his driveway. Two people he did not know were in the video, and he saw them exit the car. He had not given them permission to take his property. His daughter testified that she and her sister had been home all day.

On November 21, Karen B.'s Redlands home was burglarized, with jewelry and a firearm missing.

Vivian Z. lived in Yorba Linda, she had a security system with cameras that allowed remote monitoring through a phone app. On November 21, she observed two men remove a gold statue from her home through the app. Upon returning home, she found her bedroom ransacked and the kitchen door broken. In addition to the statue, a watch was taken.

On December 3, Joseph H., who lived in Fullerton, left his home in the morning to run errands, setting his security alarm before he departed. Upon returning 45 minutes later, he returned to find a broken window and the police waiting for him. A security alarm had notified the police, who had found the front door open upon their arrival, but no intruders in the home.

On the same day, Kinney B., also a Fullerton resident, returned home from work in the evening. His daughter asked if there had been an earthquake, as her bedroom was in disarray. His own bedroom was missing watches, jewelry, and coins.

Also on December 3, Corona resident Bryan C. witnessed people breaking into his house on his security app. When he returned home, he found his sliding glass door had been broken, and he was missing a firearm and a cell phone.

On December 20, just after noon, an Orange County Sheriff's Deputy pulled over a white BMW in Yorba Linda. The location of the stop was approximately 100 yards from the Yorba Linda burglary on November 21. Defendant was driving with three passengers, including his girlfriend and another individual implicated in the burglaries, Kevin Mendez. During the stop, defendant admitted he was on parole. Investigator Roberto Miranda of the Orange County Sheriff's Department, who had been investigating the burglaries since November 21, was aware that the license plate on the BMW was considered a suspect vehicle in several of the burglaries. Based on this information and other investigative leads, Miranda had already identified defendant and Mendez as possible suspects in the string of burglaries. Miranda arrived on the scene of the traffic stop and placed a GPS tracking device on the vehicle before allowing it to leave. Miranda was aware defendant was on parole. After the stop, Miranda prepared a search warrant, which was approved later in the day.

Also on December 20, Emma E., who lived in Poway, returned home in the early evening with her husband. Their home had been burglarized and designer purses and shoes were missing.

Around 7:30 that evening, a deputy sheriff patrolling in Poway was asked to contact a white BMW. He spotted the vehicle and initiated a traffic stop. The car initially yielded, then sped away. During the pursuit, at least one item was thrown from the vehicle. The pursuit ended when the vehicle crashed, and several occupants scattered in different directions. Deputy Robert Harrell, who had joined the pursuit after the vehicle fled, described one of the occupants as a man wearing a white hooded sweatshirt, and another as wearing a blue shirt. Harrell eventually apprehended the man wearing the blue shirt and identified him as defendant at trial.

San Diego County Sheriff Detective Sergeant Elisha Hubbard was working as a detective at the Poway station in December 2019. She participated in the burglary investigation which led to defendant's arrest. She and her partner interviewed defendant, who denied driving anyone to a robbery, stating he drove them to a park. At the collision site where the pursuit ended, Hubbard recovered a Gucci purse, which had been recovered from the car after the chase. Another purse had been recovered from the side of the highway. Inside, she found an ID card that belonged to defendant, as well as a Samsung cell phone. The phone displayed some messages and photographs of defendant. The phone was locked, but eventually the data was extracted by investigators. An analysis of the data revealed an e-mail address associated with defendant was linked to the phone. The phone also had a large number of photos and messages, including pictures of watches and text messages referencing the letters "PJ."

The San Diego sheriff's investigators also retrieved data from a phone belonging to Mendez. Mendez appeared in the surveillance camera footage from the Corona burglary. Analysis revealed that the Samsung and Mendez's phone exchanged calls or used data from cellular towers or was pinpointable using Google location data near several of the burglaries, including the ones in Manhattan Beach, Redlands, and Yorba Linda. Both phones were also connected to towers near the Fullerton and Corona burglaries during the relevant time periods.

At trial, the prosecution also presented evidence about defendant's use of the white Audi and the white BMW that had been seen at several of the burglaries. Both vehicles were registered to Lacrisian M. She testified that she owned the BMW from early 2019 until December 2019, when she sold it to Calvinisha Baker, defendant's girlfriend. She had also owned the Audi since March 2018. She let defendant drive the Audi between five and 10 times in 2019.²

Several law enforcement officers saw defendant drive the Audi in question in 2019. They pulled over the car on November 4, 2019. On November 10, Baker was driving when they were pulled over in Barstow. Defendant was in the passenger seat and stated he was purchasing the car. As stated above, defendant was also pulled over in the BMW on December 20, the day he was ultimately arrested.

Gang Evidence

Gang evidence was presented at trial by numerous law enforcement witnesses. Two officers from the Los Angeles Police Department (LAPD) testified that in the past, on multiple occasions, defendant had admitted he was an active participant in the PJ Watts Crips.

LAPD officer Robert Martinez, who spent five years working in the Gang Enforcement Detail, testified as the prosecution's gang expert. One of his main areas of expertise was the PJ Watts Crips street gang. Martinez had spoken to many members of the gang, read and reviewed reports and crimes involving members of the gang, and studied cases where members had been convicted. He had also spoken to members informally about the gang's culture and customs. He described the gang's territory, logo, tattoos, and hand signals. He also testified that burglary is the gang's signature crime. It was common for gang members to burglarize homes in affluent communities outside Los Angeles.

Martinez had spoken to defendant on a number of occasions. He had seen defendant in claimed PJ Watts Crips territory 20 to 30 times, where defendant was wearing clothing and jewelry associated with the gang. Martinez also discussed a YouTube music video called "Gangland," where defendant and Mendez both appear, making PJ hand signs. Defendant was also in a minidocumentary called "Life in PJ Watts Crips Projects, a HoodVlog," with numerous other individuals, discussing involvement with gang life. Defendant also appeared on social media with clothing and conduct that was consistent with his membership in PJ...