People v. Thornburg

THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY LEE THORNBURG, Defendant and Appellant.

G053278

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

October 11, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 13HF2342)

OPINION

Appeal from a judgment of the Superior Court of Orange County, Joy W. Markman, Steven D. Bromberg and Kimberly Menninger, Judges. Affirmed as modified.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Timothy Lee Thornburg of second degree robbery with personal use of a firearm (Pen. Code §§ 211, 212.5, subd. (c), 12022.53, subd. (b))¹ and second degree commercial burglary (§§ 459, 460, subd. (b)). The court imposed a prison term of 12 years, consisting of concurrent two-year terms for robbery and burglary, plus a consecutive 10-year term for personal use of a firearm.

Thornburg contends the court erred when it denied his motions to suppress evidence under section 1538.5, because there was no probable cause to arrest him for violating either a San Clemente Municipal Code regulating skateboarding, or section 148, subdivision (a)(1) barring resisting, obstructing or delaying a peace officer. We disagree.

Thornburg also contends the court erred when it denied his motions to suppress, because taking a buccal swab for DNA testing was an illegal search in violation of the Fourth Amendment to the United States Constitution. We are not persuaded.

Next, Thornburg contends the court erred by admitting testimonial hearsay through the prosecution's DNA expert, in violation of the California rules of evidence and the Sixth Amendment to the United States Constitution. Again, we disagree.

Finally, Thornburg contends the court erred by imposing sentence for both robbery and burglary, in violation of section 654. The Attorney General concedes this error. We agree and modify the sentence and abstract of judgment accordingly.

We affirm the judgment in all other respects.

FACTS AND PROCEDURAL HISTORY

The Walmart Crimes

Early one morning in March 2010, a man wearing a black, hooded sweatshirt pulled up over his baseball cap entered a Walmart store in San Clemente. The man stopped at a Coinstar kiosk next to an ATM (automated teller machine), and then entered a men's restroom behind the customer service desk.

Walmart employee Nicholas Chiarilli was in the men's restroom, and he saw a white male with a hooded sweatshirt "either washing [his] hands [or] doing something with [his] hands." Chiarilli saw the man's side profile "from the cheek bone to the high cheek down to [his] lower jaw."

Next the man went into the Walmart stockroom, which the employees informally referred to as the "money room." Walmart employee Justan Dunn walked into the money room, and he saw the man in a dark, hooded sweatshirt pointing a gun at him.

The man told Dunn, "I want the money. Give me the money." Dunn explained he had just stocked the cash registers and did not have any more money. The man demanded Dunn fill a duffle bag with the backup cash. Dunn complied out of fear and placed about $1,600 dollars in the duffle bag.

After the man left the stockroom, Dunn called the police.

Deputy Sherri Mannello responded to the Walmart. Chiarilli described the man he saw as five feet, eight or nine inches tall, 110 to 120 pounds, and wearing a baseball cap and hooded black sweatshirt. However, he was unable to positively identify a suspect when shown a photographic lineup.

Dunn told Mannello he "didn't focus on the face" of the gunman, and he could not identify a suspect at that time.²

After talking to the eyewitnesses, Mannello reviewed the store's surveillance camera footage, which the parties later agreed accurately depicted the robbery from several different camera angles. In doing so, she noticed the gunman had entered the store holding a coffee cup, but he exited the store without it.

Later, another investigator collected a brown coffee cup from a trash can in the men's room. The coffee cup and the money room door handle were swabbed for DNA, and the cup was dusted for fingerprints. However, investigators were not able to identify a suspect and the case went cold.

The Skateboarding Incident

One afternoon in December 2011, Sheriff's Deputy Jeffrey Hewitt was driving a patrol car southbound on El Camino Real in San Clemente, when he saw Thornburg skateboarding northbound, on the opposite side of the street. El Camino Real is a four-lane street, with a significant downhill grade, and Thornburg was using the two downhill lanes to make long, slow S-turns on his skateboard.

Hewitt turned around to initiate a "pedestrian" stop for a violation of San Clemente Municipal Code section 10.64.020, subdivision (A).³ Hewitt first turned on the steady red light in the emergency lights on top of his vehicle. Thornburg looked back at Hewitt, but he did not stop.

Hewitt next turned on his flashing red and blue emergency lights and chirped his siren. At that point Thornburg turned around, held up a hand, and waived at Hewitt, but he still did not stop. Hewitt then picked up his loudspeaker microphone and ordered Thornburg to stop. This time, Thornburg put down one foot and tried to slow down, but then continued. Thornburg eventually did stop. Hewitt estimated the gap between the time when Hewitt first chirped his siren and the time when Thornburg finally stopped skateboarding was approximately 15 seconds.

Thornburg was holding his skateboard in his hands as Hewitt approached and asked Thornburg "what he was doing." Thornburg asked Hewitt why Hewitt stopped him. Hewitt told Thornburg skateboarding in the street was a violation of the San Clemente Municipal Code.

Thornburg told Hewitt another police officer had told him it was okay to skateboard in the street, so long as he obeyed the rules. Thornburg continued to argue the point, even after Hewitt explained to him it was a violation. Hewitt testified Hewitt "had given him almost the whole municipal code, and he just continued."

While Thornburg argued, Hewitt noticed two, baseball-sized bulges in Thornburg's pockets. Hewitt thought the bulges could be weapons. Thornburg was significantly taller than Hewitt, and his combative demeanor and bulging pockets prompted Hewitt to call for backup. Hewitt also feared Thornburg might use the skateboard he was holding as a weapon.

Hewitt wanted to pat Thornburg down for weapons: "Due to the bulges in the pockets, due to he was arguing the issue for the stop. It's not common that somebody skateboards in the street. That's a place for vehicles. He was a tall gentlem[a]n. I was out there by myself." But Hewitt did nothing more until his backup arrived.

After another deputy arrived, Hewitt told Thornburg he wanted to conduct a patdown search for weapons. Thornburg refused and "became very verbally argumentative . . . ." Although Hewitt believed he had the right to conduct a patdown search without consent, he telephoned his sergeant to discuss the situation.

After talking briefly with his sergeant, Hewitt again asked Thornburg for consent to conduct a patdown search. Thornburg again refused, and demanded to know Hewitt's probable cause to conduct a search. Hewitt believed Thornburg was just going to continue to delay him, so he arrested Thornburg for "delaying an officer in the course of his duties . . . " in violation of section 148, subdivision (a).

The whole incident lasted about 30 minutes.

The Searches and the Motions to Suppress

During the search incident to Thornburg's arrest for delaying an officer, Hewitt found methamphetamine and marijuana in his pockets. Hewitt then booked Thornburg for felony possession of methamphetamine, and Thornburg provided a buccal swab for identification analysis as required by sections 296 and 296.1.

Thornburg's buccal swab was submitted to a statewide DNA database system known as "CODIS." Five months later, CODIS notified the Orange County District Attorney's Office that the DNA profile from Thornburg's buccal swab matched the DNA profile from the coffee cup found after the Walmart incident.

Once the Orange County Crime Lab confirmed the two DNA profiles matched, Thornburg was arrested for the Walmart crimes. Investigators then executed a search warrant at Thornburg's home and found two revolvers, a replica semiautomatic handgun and methamphetamine.

On July 26, 2012, the district attorney filed a complaint under case No. 12HF2123, charging Thornburg with second degree robbery, a gun-use enhancement, and second degree commercial burglary. Thornburg moved to suppress the evidence seized as a result of his arrest for delaying an officer, including the buccal swab sample and the DNA results. Judge Joy W. Markman granted the motion and suppressed the evidence, reasoning Thornburg's refusal to allow a patdown search could not provide probable cause to arrest him for delaying or obstructing an officer.

The district attorney then dismissed and refiled the complaint under case No. 13HF2342, again charging Thornburg with second degree robbery, a gun-use enhancement, and second degree commercial burglary. A separate complaint filed the same day under case No. 13HF2343 charged Thornburg with felony possession of methamphetamine (former Health & Saf. Code, § 11377, subd. (a)), misdemeanor resisting, delaying or obstructing a peace officer (§ 148, subd. (a)), and possession of...