Filed 4/22/15 P. v. Williams CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064781
Plaintiff and Respondent,
v. (Super. Ct. No. SCD242869, SCD238325) JOHN WILLIAMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, David M.
Gill, Judge. Affirmed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth
M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
John Williams appeals from a judgment convicting him robbery, aggravated
assault, petty theft, and other offenses. He argues the judgment must be reversed because (1) the police searched his cell phone without a warrant, and (2) the jury was improperly
presented with prior misconduct evidence. We find no reversible error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, age 20 at the time of the crimes involved in this case, is a member of
the Lincoln Park gang. His convictions arose from two distinct instances of criminal
activity in August 2012. In the first incident, defendant stole two backpacks from two
victims who had joined him for a basketball game at a gym. In the second incident about
two weeks later, defendant and his gang cohorts committed armed robbery and
aggravated assault against several individuals who were in a parking lot walking to a
party late at night.
Theft of Backpacks
On the afternoon of August 12, 2012, Luke Nguyen and Jordan Alexander went to
a recreation center to play basketball. Defendant invited them to join in a "[p]ickup
game," but defendant left while they were playing. When the gym closed shortly
thereafter, Nguyen's and Alexander's backpacks were no longer on the bleachers where
they had left them.
Two females at the gym (Ponsavon Kuy and Frances Perez) saw defendant with
the stolen backpacks. Perez saw defendant take the backpacks while in the gym, and Kuy
saw defendant with the backpacks when she and defendant were being given a ride to
their homes from the gym. Kuy observed defendant looking through the backpacks, and
heard him talk about selling cell phones that he found in the backpacks. Shortly after the
theft, victim Nguyen saw that defendant's Twitter page contained a posting to sell an
2 iPhone which matched the iPhone that Nguyen had in his backpack. After a friend of
Nguyen's sent defendant a "tweet" saying " 'Give him back his phone,' " defendant
restricted his Twitter account so it was no longer open to the public.
The police found victim Alexander's identification card in defendant's bedroom
during a search conducted after the robbery and assault incident that occurred about two
weeks later.
Robbery and Assault Incident
At about 12:30 a.m. on August 26, 2012, a group of friends, including Sterling
Wingo, Kyle Persinger, Amanda Wagner, and several others (the victim group), were in a
parking lot walking to a party. The victim group was not affiliated with any gang. As
they passed another group of people (the assailant group), a male in the assailant group
made gang references, asking the victim group if they "bang," where they were from, and
if they were "bloods." The victim group said no and tried to ignore the questioning.
Someone in the assailant group said, " 'Hey, he's from Skyline,' " referring to a rival gang
of Lincoln Park. One or more people in the assailant group then said, " 'Line it up' " or
"catch a fade," which means everyone get ready to fight.
One of the males in the assailant group told Persinger to empty his pockets, and
when Persinger refused, the male punched him. Another male pointed a gun at Wingo
and took Wingo's jacket, watch and bracelet. Someone also hit Wingo in the chin. At
some point a male in the assailant group lifted his shirt and revealed the butt of a gun.
When someone in the victim group yelled " '[t]hey have a gun,' " the victim group fled
the parking lot in various directions. While he was fleeing, Wingo called 911.
3 Some of the assailants caught up to Persinger and started kicking and stomping
him. When Wagner tried to come to his aid, the assailants starting punching and kicking
her. Persinger was able to flee while Wagner was being attacked. When the assailants
stopped the attack on Wagner, a neighbor flagged down a police car to assist her.
To determine the identity of the assailants, the police conducted a curbside lineup
on the night of the incident, and thereafter interviewed and showed photo lineups to
various witnesses. As the result of this investigation, defendant and several other Lincoln
Park gang members were identified as perpetrators. At the curbside lineup, witnesses
identified Lincoln Park gang member Keshwan Degrate as the person who pointed the
gun at Wingo; Lincoln Park gang member Davone Williamson as one of the people who
punched Persinger; and Stephanie Wells as one of the people who assaulted Wagner.
Defendant was not among the group of potential suspects who had been
apprehended and brought to the curbside lineup. However, he was subsequently
identified as a perpetrator by several individuals, including victim Wagner, accomplice
Wells, and a female he was dating (Bernesha Phillips). Wagner identified him in a photo
lineup, and Wells and Phillips identified him and provided details of what occurred in
recorded police interviews. Defendant was also depicted in a photo taken the night of the
party wearing a camouflage tank top that matched a description provided by a victim.
After being identified by Wagner and Wells, defendant was arrested. During a
search of defendant's person, the police found and seized his cell phone. The police
searched the phone and discovered several text messages exchanged between him and
Phillips that supported that he was involved in the robbery/assault incident. In text
4 messages exchanged in the hours preceding the incident, defendant told Phillips that he
was supposed to fight and " 'pop somebody' " at her cousin's party that night, and when
she pleaded with him not to do this, he responded that he would " 'fight only.' " In a
phone conversation and text message that evening, defendant asked Phillips if she would
hold his gun in her purse, but she refused.
Phillips told the police that during the party she heard talk that people from
Skyline were "coming over," and at one point defendant pulled a silver handgun out of
his waistband and showed it to Phillips. When defendant was outside by the parking lot
near the party, he called Phillips and told her cars had "pulled up" and he thought he was
going to get jumped. When word spread that a fight had started outside, Phillips rushed
outside with the others and saw people getting out of cars. Phillips heard defendant ask
" 'where are you from, do you bang?' " The people getting out of the cars seemed to be
trying to ignore the situation and go to the party, but seconds later defendant started
fighting, and then everybody was fighting.
Similarly, Wells told the police that during the party she heard defendant say he
had " 'the pistol in the car.' " Later, she saw defendant start the fight outside by hitting a
"boy"; Degrate then joined the assault; and defendant and Degrate "[b]eat him up." After
the fight, Wells saw Degrate pass a small, silver gun to defendant, saying " 'Blood, I think
I jammed it.' "
A prosecution gang expert described the criminal activities of the Lincoln Park
gang and opined that the robbery and assaults were committed to benefit the gang.
5 Jury Verdict and Sentence
For the theft committed at the gym, defendant was charged with petty theft (victim
Nguyen) and receiving stolen property (victim Alexander). For the robbery and assault
incident, defendant was charged with robbery (victim Wingo), attempted robbery (victim
Persinger), and assault by means of force likely to produce great bodily injury (victims
Persinger and Wagner). The information included gang benefit enhancements for the
robbery, attempted robbery, and assault charges, and gun use enhancements for the
robbery and attempted robbery charges.
Defendant was convicted as charged. Based on the current charges, a prior serious
felony conviction, a prior strike conviction, and probation revocation in another case,
defendant was sentenced to a total term of 38 years eight months.
DISCUSSION
I. Warrantless Search of Cell Phone
Defendant argues the judgment must be reversed because the police violated his
federal constitutional right to be free of unreasonable searches and seizures when, upon
his arrest, the police detective (Rudy Castro) searched his cell phone without obtaining a
warrant.
In 2011, the California Supreme Court held the police may conduct a warrantless
search of a cell phone seized from a defendant's person at the time of arrest without
violating the Fourth Amendment's proscription against unreasonable searches and
seizures. That same year, the United States Supreme Court denied certiorari in Diaz.
(People v. Diaz (2011) 51 Cal.4th 84, 88, 93, 101, cert. den. (2011) __ U.S. __ [132 S.Ct.
6 94].) Defendant was arrested in August 2012 and the pretrial and trial proceedings
occurred in 2012 and 2013. In January 2014, the United States Supreme Court granted
certiorari in an unrelated California case and a Massachusetts federal case that had
reached conflicting conclusions concerning the warrantless cell phone search issue. (See
People v. Riley (Feb. 8, 2013, D059840) [nonpub. opn.], cert. granted Jan. 14, 2014, __
U.S. __ [134 S.Ct. 999] [applying Diaz to permit warrantless cell phone search]; United
States v. Wurie (1st. Cir. 2013) 728 F.3d 1, cert. granted Jan. 17, 2014, __ U.S. __ [134
S.Ct. 999] [cell phone search requires warrant].) The United States Supreme Court
resolved the conflict in June 2014, overruling Diaz and holding that the search-incident-
to-arrest exception to the warrant requirement did not apply to cell phones, and (absent
exigent circumstances) a warrant was required before searching a cell phone seized at the
time of arrest. (Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473, 2484-2485, 2493-
2495].)
Thus, at the time of defendant's arrest and trial, the governing law in California
permitted a warrantless search of a cell phone seized from a defendant's person at the
time of arrest. Understandably, at trial defense counsel did not challenge the legality of
the cell phone search because such a challenge would have been futile under Diaz.
However, because defendant's conviction is not yet final on direct review, he is now
entitled to raise this issue based on the subsequent overruling of Diaz by the United
States Supreme Court in Riley. (See Davis v. United States (2011) __ U.S. __ [131 S.Ct.
2419, 2430-2431] (Davis).) The fact that defendant was subjected to an unconstitutional
search of his cell phone does not mean he is automatically entitled to exclusion of the cell
7 phone data. (Id. at p. 2431.) Rather, we must determine whether he is entitled to the
remedy of exclusion of the evidence, which, in this case, requires a consideration of the
good faith exception to the exclusionary rule. (See ibid.)
The California Supreme Court has granted review to consider the question of
whether the good faith exception to the exclusionary rule should apply to warrantless cell
phone searches conducted at a time when Diaz was the controlling authority. (People v.
Macabeo, review granted Nov. 25, 2014, S221852 [good faith exception applies].) As
we shall explain, pending a decision on this issue from our state high court, we conclude
the good faith exception does apply.
In Davis, the United States Supreme Court evaluated the applicability of the good
faith exception in a case involving a change in the law concerning the permissibility of
automobile searches incident to arrest. Davis held that "searches conducted in
objectively reasonable reliance on binding appellate precedent are not subject to the
exclusionary rule." (Davis, supra, 131 S.Ct. at pp. 2423-2424, 2426-2429.) The Davis
court explained that the exclusionary rule is not a personal constitutional right nor is it
designed to redress the injury caused by an unconstitutional search; rather, its sole
purpose is to deter future Fourth Amendment violations. (Id. at p. 2426.) "For exclusion
to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs."
(Id. at p. 2427.)
This cost-benefit analysis focuses on the " 'flagrancy of the police misconduct' at
issue. [Citation.] . . . When the police exhibit 'deliberate,' 'reckless,' or 'grossly
negligent' disregard for Fourth Amendment rights, the deterrent value of exclusion is
8 strong and tends to outweigh the resulting costs. [Citation.] But when the police act with
an objectively 'reasonable good-faith belief' that their conduct is lawful [Citation] . . .
' "the deterrence rationale loses much of its force," ' and exclusion cannot 'pay its way.' "
(Davis, supra, 131 S.Ct. at pp. 2427-2428.) Davis elaborated that "[p]olice practices
trigger the harsh sanction of exclusion only when they are deliberate enough to yield
'meaningfu[l]' deterrence, and culpable enough to be 'worth the price paid by the justice
system.' [Citation.] . . . The police [here] acted in strict compliance with binding
precedent, and their behavior was not wrongful. Unless the exclusionary rule is to
become a strict-liability regime, it can have no application to this case. [¶] . . . [¶] . . .
[W]hen binding appellate precedent specifically authorizes a particular police practice,
well-trained officers will and should use that tool to fulfill their crime-detection and
public-safety responsibilities . . . ." (Id. at pp. 2428-2429, first bracketed material in
original.)
The warrantless search of defendant's cell phone was in compliance with the
California Supreme Court's holding in Diaz. Because the officers were authorized under
Diaz to conduct a warrantless search of the phone, they were properly performing their
duties. We note this is not a case where the law in California on cell phone searches was
unsettled. (See Davis, supra, 131 S.Ct. at pp. 2435-2436 (conc. opn. of Sotomayor, J.).)1
1 Justice Sotomayor stated that although the Davis majority held it was proper to apply the good faith exception when binding appellate precedent specifically authorized a particular police practice, the majority's holding did not resolve the question of whether the exception should be applied when the constitutionality of the search is unsettled. (Davis, supra, 131 S.Ct. at pp. 2435-2436 (conc. opn. of Sotomayor, J.) [suggesting that 9 At the time of defendant's arrest, binding California Supreme Court authority provided
that Fourth Amendment constitutional protections did not require a warrant to search a
cell phone seized incident to an arrest. Accordingly, the good faith exception to the
exclusionary rule applies, and there is no basis to provide relief to defendant based on the
change in the law.
Defendant argues we should not apply the good faith exception because the record
indicates Detective Castro did not rely on Diaz but rather thought a warrant was required
to search his cell phone. In support, he cites Detective Castro's statement to Phillips
(during her recorded police interview) that the police "do search warrants on cell phones"
and they had seen a text to her from defendant referring to a gun. This statement does not
defeat the applicability of the good faith exception for several reasons. First, a broad
statement that the police obtain search warrants for cell phone searches does not
necessarily reflect a belief that warrants are required for a cell phone search incident to
an arrest; indeed, even under Diaz there are a broad array of circumstances where a
warrant would be required for a cell phone search. Second, the relevant inquiry for the
good faith exception is primarily objective; i.e., whether a reasonably well trained officer
would have thought the search was legal in light of all the circumstances. (See Herring v.
United States (2009) 555 U.S. 135, 145; Ashcroft v. Al-Kidd (2011) __ U.S. __ [131 S.Ct.
2074, 2080]; United States v. Madden (10th Cir. 2012) 682 F.3d 920, 927-928.) Here, a
reasonably well trained officer would have thought the warrantless search of defendant's
if constitutionality of police practice is unsettled, it might be appropriate not to apply good faith exception so that police have incentive to err on side of constitutional behavior].) 10 cell phone was legal under binding California Supreme Court authority. Third, to the
extent a court considers whether an officer has engaged in improper conduct so as to
warrant rejection of the good faith exception in a particular case (see Herring, supra, at p.
146), there is no bad faith demonstrated here. Detective Castro's reference to the practice
of securing a warrant for cell phones does not suggest he engaged in " 'deliberate,'
'reckless,' or 'grossly negligent' disregard for Fourth Amendment rights" when he
searched defendant's cell phone without a warrant. (Davis, supra, 131 S.Ct. at p. 2427.)
Because Detective Castro's search of the cell phone complied with controlling California
Supreme Court authority, there is no basis to characterize his conduct as being in bad
faith.
We also reject defendant's contention that the Diaz decision cannot support the
good faith exception because the California Supreme Court has no authority to decide a
federal constitutional issue and was merely speculating about how the United States
Supreme Court would view the issue. State courts are fully authorized to decide federal
constitutional issues, subject to the dictates of the United States Supreme Court. (See
People v. Lessie (2010) 47 Cal.4th 1152, 1164, 1167; People v. Estrada (1965) 234
Cal.App.2d 136, 145; 7 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional
Law, § 112, p. 217; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §§ 505-506, pp. 568-
569.) Because the United States Supreme Court had not yet ruled on the issue of
warrantless cell phone searches at the time of defendant's arrest, the California Supreme
Court's decision was binding in California.
11 Given our conclusion that the good faith exception to the exclusionary rule
applies, we need not consider the Attorney General's contention that the issue was
forfeited, nor need we evaluate whether the warrantless search was a permissible
probation search.2
II. Counsel's Failure To Object to Uncharged Misconduct Evidence
Defendant argues he was not provided effective representation and he was
deprived of a fair trial because his counsel did not object to the admission of two
statements (made by witnesses to the police during the robbery/assault investigation) that
referred to his commission of other crimes. Defendant contends this evidence was
inadmissible uncharged misconduct evidence, and there was no tactical reason for his
counsel not to object to admission of the evidence.
The complained-of evidence consists of (1) a statement by victim Wagner during
the photo lineup, and (2) a comment by defendant's accomplice Wells during her
recorded police interview. As to Wagner's statement, Detective Castro testified at trial
that when he showed the photos to Wagner at her father's residence, she immediately
said, " 'Dad, you remember when my wallet got stolen? This is the guy that stole it.' "
Wagner explained to Detective Castro that a year before the charged robbery/assault
incident, she had a party at her home and her friends told her that defendant had taken her
wallet. As to Wells's statement, during the recorded police interview that was played for
2 Although we need not reach the probation search issue, we note that the officer (Detective Castro) who seized and searched defendant's cell phone testified at the preliminary hearing that he conducted a "probation search" of defendant's residence after his arrest. 12 the jury, she described defendant's participation in the robbery/assault incident and during
this narrative commented, "Every party [defendant] goes to, he ends up robbing
somebody."
To show ineffective representation, the defendant must establish that counsel's
performance fell below an objective standard of reasonableness, and that there is a
reasonable probability that absent counsel's deficiency the result would have been
different. (People v. Weaver (2001) 26 Cal.4th 876, 925.) There is a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance,
and on appeal we will not find ineffective assistance unless there could be no conceivable
tactical reason for counsel's acts or omissions. (Id. at pp. 925-926.) Further, if the record
does not show prejudice from counsel's alleged deficiency, we may reject the claim
without determining whether counsel's performance was deficient. (People v. Sapp
(2003) 31 Cal.4th 240, 263.)
The record reflects that defense counsel may have tactically refrained from
objecting to Wagner's statement to her father during the photo lineup. On cross-
examination of Detective Castro, defense counsel elicited Castro's acknowledgement that
during an interview conducted several hours before the photo lineup, Wagner made no
mention that she recognized one of the assailants in the robbery/assault incident as the
male who had stolen her wallet at a previous party. Defense counsel could have
reasonably assessed that Wagner's statement about the wallet theft, indicating that she
knew defendant but when first interviewed failed to tell Detective Castro about his
13 presence at the robbery/assault incident, was useful impeachment evidence concerning
her subsequent identification of defendant as a participant in the robbery/assault offenses.
In any event, the admission of these two statements by Wagner and Wells was not
prejudicial. For purposes of evaluating the gang enhancements and defendant's state of
mind, the jury was presented with a gang expert's testimony describing defendant's prior
participation in a robbery in 2009 and a robbery and assault in 2011. In light of this other
evidence showing defendant's gang-related criminal activities, there is no reasonable
likelihood the jury's perception of defendant was significantly impacted by Wagner's and
Wells's brief statements referencing his commission of a wallet theft and tendency to
commit robberies at parties. Also, there was strong evidence that defendant was a
perpetrator in the charged backpack theft and robbery/assault incidents. For the backpack
thefts, he was identified by two witnesses (Perez and Kuy) as the perpetrator, and an
identification card of one of the victims was found in his bedroom. For the robbery and
assaults, he was identified by three witnesses (Wagner, Wells, and Phillips) as a
participant; he exchanged text messages with Phillips supporting that he was involved;
and he was depicted in a photo taken the night of the offenses wearing a distinctive shirt
that matched a victim's description of one of the assailants. There is no reasonable
probability the passing comments by Wagner and Wells affected the jury's verdict.
14 DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.