People v. Tommy M. (In re Tommy M.)

In re Tommy M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. TOMMY M., Defendant and Appellant.

A147813

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

October 16, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Francisco County Super. Ct. No. JW 15-6136)

Tommy M., when one month shy of his 18th birthday, participated in the robbery of a young woman's cell phone and then ran from the police when they tried to apprehend him. He was adjudged a ward of the court as a result, with true findings that he had committed a felony second degree robbery (Pen. Code, §§ 211, 212.5) and resisted arrest, a misdemeanor (Pen. Code, § 148). He claims on appeal that a police investigator violated his Miranda rights when he asked Tommy for his phone number as biographical identifying data, without administering a Miranda warning. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) He further claims the court erred in denying his Marsden motion (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)) and denying his attorney's simultaneous motion to withdraw as counsel due to a "conflict of interest." He contends there was insufficient evidence to identify him as one of the robbers. With respect to disposition, Tommy argues an electronics search condition violated People v. Lent (1975) 15 Cal.3d 481 (Lent) and was unconstitutionally overbroad insofar as it applied to devices other than his cell phone. Finally, Tommy suggests the trial court erred in stating a maximum term of confinement.

With the exception of the last point, we find no error and affirm, with directions to strike from the reporter's transcript the court's stated maximum term of confinement.

I. BACKGROUND

On June 23, 2015, at about 4:30 p.m., two African-American young men forcibly took a cell phone away from Dan Xie, a 20-year-old Chinese woman, while she sat at a bus stop at the corner of 18th and Mississippi Streets in San Francisco. The first robber to grab for her phone was taller than the other. He had dark skin, short black hair, and he was wearing a dark or black long-sleeved jacket. A second, shorter man, wearing a T-shirt with a white torso with printed letters and black, mid-length sleeves,¹ reached in and grabbed the phone with both hands as the first man struggled with Xie over the phone. The two men got the phone away from Xie. Both men then took off running around the corner, heading north on Texas Street.

Following them, Xie saw a third African-American man standing about two blocks away, whom she thought was the "lookout." The two robbers ran to where the third man was standing near a black car with yellow-paper dealership license plates that was parked on the street. By the time Xie caught up with them, the shorter second robber was seated in the driver's seat. The first, taller robber was standing by the passenger door with Xie's phone in his hand. Xie tried to grab her phone away from him, but the man raised his other hand in a threatening manner toward Xie. He and the third suspect² then ran off, going north on Texas Street. The black car pulled away quickly, also heading north onTexas Street. Two elderly women asked Xie what had happened and helped her call the police.³

A motorist passing by, Eric Koczab, saw what was transpiring and drove after the black car. After a couple of turns, when the black car turned into oncoming traffic, he abandoned his pursuit and returned to the scene of the robbery, where the victim was still in distress. He described the robbers as two African-American men, one wearing a hoodie with a gray upper-half and black bottom-half and dark pants. He could not describe what the other one was wearing and did not perceive any height difference between them. During the chase, Koczab thought he saw one of the robbers, the "gray hooded individual," running through traffic toward the black car.

Kim Lavalle was standing near her car on the other side of Texas Street when she heard the commotion and saw several people running north on Texas Street. As the black car drove away, Lavalle rushed to Xie to see what had happened. Xie had dropped to her knees and was crying. After speaking with Xie for two seconds, Lavalle got into her car and followed the black car. She soon decided she could not catch up to it, so she started following one of the people who had left the scene on foot. She described him as a tall, slender African-American man with short to medium-length hair. She followed him until she saw him go into the Center Hardware store on Mariposa. She then returned to Texas Street where Xie was still waiting and crying. Lavalle announced to those assembled that she had seen one of the men go into the hardware store on Mariposa.

Koczab drove Xie to Center Hardware. She waited in the car while Koczab went into the store to see if the two robbers were there. He immediately spotted the man with the gray-and-black hoodie at the front counter, using the store's telephone. Koczab told the store manager what had happened, and the manager approached the man using the phone. The suspected robber then ran out of the store and across Mariposa, with Koczab in pursuit.

The suspect near the hardware store was described by dispatch as a "black male, late teens, early 20s, with an afro, a black sweater with gray stripes, and red and black shoes." Two plainclothes police officers in the vicinity of the hardware store began pursuing Tommy because he generally fit that description. As they were chasing him, Officer Eric Eastlund yelled repeatedly, "[P]olice[!] [S]top[!]", but Tommy did not stop. The officers gave up the chase after Tommy hopped over two fences and headed into an open area near 16th Street and Owens. Eastlund's partner radioed for other officers to respond to 16th Street, and Tommy soon was found hiding in the area of 16th and Owens Streets.

Eastlund and his partner, Officer Christopher Leong, went to where Tommy was detained. Eastlund handcuffed him and searched him, finding no cell phones, no weapons, and no contraband. Officer Leong asked Tommy his name and birthdate to identify him. Upon realizing Tommy was a minor, Leong read him his Miranda rights.

Between 5:00 p.m. and 6:00 p.m., Sergeant Stephen Jonas, a police investigator, arrived where Tommy was detained in the back of a patrol car. He knew the case involved a stolen cell phone and knew Tommy's cell phone had not been stolen. He did not know whether Tommy had been Mirandized. Without giving him a Miranda advisement, Jonas asked Tommy his name, birthdate, home address, and phone number; and Tommy answered those questions. Jonas routinely asks the same questions of everyone he talks to in connection with a case: victims, suspects, and witnesses. He asks so he can get in touch with them later.

At the same time Lavalle, Koczab and the police were tracking down and detaining Tommy, other officers were closing in on D.T. While Xie was at the hardware store, Officer Jose Calvo-Perez let Xie use his cell phone to activate the "Find My iPhone" application. The initial "ping" from Xie's cell phone registered on Minnesota Street between 18th and 19th Streets. Sergeant Sean Frost was in the vicinity of Minnesota and 18^th Streets when he got this information. He continued to travel in response to the moving "ping" locations until he was at Evans and Jennings. At that point, Frost realized there was only one car, a silver one, traveling in tandem with thepinging phone and concluded the stolen phone was likely in that car. He pulled over the driver.

It turned out the car was driven by Erica Hollins, who sometimes drove for Lyft but was not on the job at that time. She told the police that D.T. approached her car and offered her $20 for a ride, so she accepted. D.T. slid into the passenger seat, and she headed for Third Street and Palou Avenue. Before she knew it, she was being pulled over by the police and handcuffed, along with D.T.

Officer Leong, having now responded to the scene of the car stop, continued to listen for the pinging phone and found it on the floor of Hollins's car behind the driver's seat. Eastlund searched the car and found another cell phone between the passenger's seat and the front door, and a third cell phone in D.T.'s pocket. D.T. also had two live rounds of ammunition in his front pocket. The police also seized Hollins's cell phone. When Sgt. Jonas arrived where the car had been stopped, he addressed both Hollins and D.T., asking them their names, birthdates, addresses, and telephone numbers. Eastlund turned over the four seized cell phones to Jonas.

Once D.T. and Tommy were both in custody, the police organized an in-field cold show in which Tommy was viewed individually, with no other suspects, handcuffed between two police officers. Xie, while "cowering" in the back of a police car about 20 feet away from Tommy, identified him as the first robber: the taller, thinner one who tried to snatch her phone from her hand. Koczab and Lavalle also both identified Tommy as one of the robbers in separate in-field cold shows.

When Xie was taken to the place where the silver car had been stopped and was shown Hollins and Hollins's car, she said she did not recognize either. She was not shown D.T. at that location. She was later shown D.T. at the parking lot of San Francisco General Hospital. She sat in the back of a patrol car, hysterical, shaking, and afraid to look up. When she saw D.T., she let out a gasp and said, " 'That's him! That's the second suspect that took my phone. Same hair[,] face and clothing. He was the driver of the car.' "

To determine whether any of the recovered phones belonged to...