People v. Montanez CA5 ( 2023 )

Filed 6/9/23 P. v. Montanez CA5
Opinion on transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082023
Plaintiff and Respondent,
(Super. Ct. No. PCF344311)
v.
JOSE ANTONIO MONTANEZ, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Tulare County. Michael B.
Sheltzer, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting Attorney General,
Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General,
for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Meehan, J. and Snauffer, J.
Defendant Jose Antonio Montanez was convicted of possession of a firearm by a
felon, possession of ammunition by a felon, and carrying a concealed firearm in a
vehicle. We receive the matter on transfer from our Supreme Court.
When his direct appeal first reached us, defendant contended that the parole search
that led to the discovery of the firearm and ammunition was unlawful because it was
preceded by a detention without reasonable suspicion of wrongdoing in light of the
officer’s use of his patrol vehicle spotlight and request for identification. We declined to
determine whether the interaction was a detention, and concluded, assuming the officer
unlawfully detained defendant, the attenuation doctrine applied, and the evidence need
not have been excluded.
Our Supreme Court granted review and deferred consideration pending
dispositions in People v. McWilliams (2023) 14 Cal.5th 429 (McWilliams) and People v.
Tacardon (2022) 14 Cal.5th 235 (Tacardon). With both cases now decided, the matter
was transferred to us with directions to vacate our prior opinion and reconsider. We
permitted the parties to submit supplemental briefing. They agree that the case turns on
whether defendant was detained prior to the officer learning of defendant’s parole status.
Defendant contends that he was detained when the officer illuminated his vehicle with a
patrol vehicle spotlight and asked for his identification. The People disagree. We vacate
our prior opinion and affirm.
PROCEDURAL SUMMARY
On January 24, 2019, the Tulare County District Attorney filed a first amended
information charging defendant with possession of a firearm by a felon (Pen. Code,
§ 29800, subd. (a)(1);1 count 1), possession of ammunition by a felon (§ 30305,
subd. (a)(3); count 2), carrying of a concealed firearm in a vehicle (§ 25400, subd. (a);
1 All further statutory references are to the Penal Code.
2
count 3), and failure to appear (§ 1320, subd. (b); count 4). As to each count, the
information further alleged defendant had suffered a prior serious felony “strike”
conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d)) and had served a prior prison term (§ 667.5, subd. (b)).
On January 17, 2020, the trial court found defendant guilty on counts 1 through 3.
Defendant’s “RAP” sheet, detailing his prior strike conviction, was also admitted.
On September 29, 2020, the trial court sentenced defendant to a total term of
32 months as follows: on count 1, 32 months (the low term of 16 months doubled due to
the prior strike conviction); and on counts 2 and 3, 32 months (the low term of 16 months
doubled due to the prior strike conviction) concurrent with the term on count 1. No prior
prison term enhancements were imposed.
On March 30, 2022, this court filed an opinion affirming the judgment. (People v.
Montanez (Mar. 30, 2022, F082023) [nonpub. opn.].)
On June 29, 2022, our Supreme Court granted review and deferred further action
in the matter pending consideration and disposition of related issues in McWilliams and
Tacardon. (People v. Montanez, review granted June 29, 2022, S274306.)
On May 3, 2023, our Supreme Court transferred the matter to us with directions to
vacate our opinion and reconsider in light of McWilliams, supra, 14 Cal.5th 429, and
Tacardon, supra, 14 Cal.5th 235.
FACTUAL SUMMARY 2
On April 24, 2017, the trial court held a hearing on defendant’s motion to suppress
evidence pursuant to section 1538.5.
2 Because the issues before us relate only to suppression of evidence, we provide a
summary only of the facts presented at the hearing on defendant’s initial motion to
suppress.
3
On December 4, 2016, at approximately 2:30 a.m., Tulare County Sheriff’s
Deputy Brian Pinheiro was on patrol duty when he noticed a lone vehicle parallel parked
along the shoulder of the road in an area known for high drug and alcohol use. He parked
his marked patrol car behind the vehicle, used his spotlight to illuminate the vehicle, and
approached the vehicle. He explained that he used the spotlight “due to the dark hours”
in an effort to “make [his] approach safer.” He did not activate his emergency lights. As
he approached the vehicle, he noticed that the rear driver’s side door was open and he
saw defendant and a woman in the back seat.
Pinheiro asked defendant and the woman for their identification. Both produced
driver’s licenses. Pinheiro then “ran [defendant and the woman] through dispatch at
which point [he learned defendant] was on active parole.” The dispatcher informed
Pinheiro that defendant’s parole included search terms. Pinheiro then asked defendant to
exit the vehicle; searched defendant for weapons, locating none; and conducted a search
of the vehicle. In the vehicle, Pinheiro located a semiautomatic handgun, wrapped in a
pair of pants that were located directly below where defendant’s feet sat when Pinheiro
contacted him. The handgun contained 10 rounds of ammunition.
Pinheiro arrested defendant and transported him to the Porterville sheriff’s
substation. After Pinheiro read defendant a Miranda3 admonition, defendant admitted
that the pants belonged to him. He further told Pinheiro that he had found the handgun
earlier in the day.
On that record, the trial court concluded that the interaction between defendant
and Pinheiro was consensual until Pinheiro conducted the parole search. On that basis,
the court denied defendant’s motion to suppress evidence.
3 Miranda v. Arizona (1966) 384 U.S. 436.
4
On January 12, 2018, defendant renewed his motion to suppress and moved to set
aside the information pursuant to section 995. The trial court summarily denied the
motion.
DISCUSSION
In defendant’s original briefing, he argued that the contact between he and
Pinheiro was at no point a consensual encounter. Instead, he argued, it was a detention
without reasonable suspicion of wrongdoing from the outset. The People disagreed,
arguing that the interaction was a consent encounter until Pinheiro discovered that
defendant was on parole. Alternatively, the People argued that even if a
Fourth Amendment violation occurred, the evidence obtained need not have been
excluded based on the attenuation doctrine. We agreed with the People that even
assuming a Fourth Amendment violation occurred—a question which we did not
resolve—no exclusion of evidence was required.
On transfer from our Supreme Court, the parties submitted supplemental briefing
in which they agree that this case turns on whether the initial interaction between
defendant and Pinheiro was a consensual encounter or an unlawful detention. They
agree, as do we, that if we conclude the initial interaction was an unlawful detention,
McWilliams forecloses a conclusion that defendant’s parole status was an intervening
circumstance that could support the attenuation doctrine exception to the exclusionary
rule. (McWilliams, supra, 14 Cal.5th at p. 435 [concluding that an officer’s discretionary
decision to conduct the parole search did not sufficiently attenuate the connection
between the officer’s initial unlawful decision to detain the defendant and the discovery
of contraband].)
The parties continue to disagree regarding the nature of the initial interaction
between defendant and Pinheiro. Defendant argues that by illuminating defendant’s
vehicle with a spotlight, “approach[ing] the vehicle on foot[,] immediately ask[ing] the
5
occupants for identification[,] and wait[ing] for dispatch to run their names,” Pinheiro
unlawfully detained him. The People agree regarding the facts in the record but contend
that the interaction did not constitute a detention. We agree with the People.
A. Standard of Review and General Legal Principles
Section 995 authorizes a court to set aside an information if (1) the defendant was
not “legally committed by a magistrate” or (2) the defendant was committed “without
reasonable or probable cause.” (§ 995, subd. (a)(2)(A) & (B).) “Probable cause exists if
a person ‘ “ ‘ “of ordinary caution or prudence would be led to believe and
conscientiously entertain a strong suspicion” ’ ” ’ that the defendant committed the
crime.” (Galindo v. Superior Court (2010) 50 Cal.4th 1, 8.) An information is not
appropriately set aside “ ‘if there is some rational ground for assuming the possibility that
an offense has been committed and the accused is guilty of it.’ ” (People v. San Nicolas
(2004) 34 Cal.4th 614, 654.) “This is an ‘exceedingly low’ standard ….” (People v.
Superior Court (Sahlolbei) (2017) 3 Cal.5th 230, 245.)
“Where, as here, the defendant challenges the suppression ruling by a motion to
dismiss under Penal Code section 995, we review the determination of the magistrate
who ruled on the motion to suppress, not the findings of the trial court.” (People v. Fews
(2018) 27 Cal.App.5th 553, 559; accord, Tacardon, supra, 14 Cal.5th at p. 242.) “ ‘[I]n
proceedings under section 995 it is the magistrate who is the finder of fact; the superior
court has none of the foregoing powers, and sits merely as a reviewing court; it must
draw every legitimate inference in favor of the information, and cannot substitute its
judgment as to the credibility or weight of the evidence for that of the magistrate.
[Citation.] On review by appeal or writ, moreover, the appellate court in effect
disregards the ruling of the superior court and directly reviews the determination of the
magistrate ….’ ” (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141; accord, Tacardon, at
p. 242.) We do not substitute our own judgment for that of the committing magistrate
6
concerning the weight of the evidence or the credibility of the witnesses. (People v.
Block (1971) 6 Cal.3d 239, 245; Tacardon, at p. 242.) However, “ ‘where the facts are
undisputed, the determination of probable cause “constitute[s] a legal conclusion which is
subject to independent review on appeal.” ’ ” (People v. Black (2017) 8 Cal.App.5th 889,
898.) “ ‘Insofar as the … section 995 motion rests on issues of statutory interpretation,
our review is de novo.’ ” (Gonzalez, at p. 1141.)
We will uphold the magistrate’s ruling if it “is correct on any theory of the law
applicable to the case, even if the ruling was made for an incorrect reason.” (People v.
McDonald (2006) 137 Cal.App.4th 521, 529.)
The federal and California Constitutions prohibit unreasonable searches and
seizures. (U.S. Const., 4th & 14th Amends.; Cal. Const., art. I, § 13.) California law
applies federal constitutional standards to the review of search and seizure rulings.
(People v. Rogers (2009) 46 Cal.4th 1136, 1156, fn. 8.) Under section 1538.5, a trial
court may grant a motion to suppress evidence “only if exclusion is mandated by the
federal Constitution.” (People v. Banks (1993) 6 Cal.4th 926, 934.) The initial burden is
on the defendant to establish that the government conducted a search without a warrant.
The burden then shifts to the prosecution to justify the warrantless search. (People v.
Williams (1999) 20 Cal.4th 119, 127.) A warrantless search is presumptively
unreasonable. (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 652–653.) The
prosecution must prove by a preponderance of the evidence the search falls within an
exception to the Fourth Amendment’s warrant requirement. (People v. Torres (1992) 6
Cal.App.4th 1324, 1334–1335.)
B. Purported Fourth Amendment Violation
Not all contacts between civilians and law enforcement constitute searches and
seizures. “ ‘An officer may approach a person in a public place and ask if the person is
willing to answer questions. If the person voluntarily answers, those responses, and the
7
officer’s observations, are admissible in a criminal prosecution. [Citations.] Such
consensual encounters present no constitutional concerns and do not require justification.
[Citation.] However, “when the officer, by means of physical force or show of authority,
has in some way restrained the liberty of a citizen,” the officer effects a seizure of that
person, which must be justified under the Fourth Amendment to the United States
Constitution. [Citations.] In situations involving a show of authority, a person is seized
“if ‘in view of all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave,’ ” or “ ‘otherwise terminate the
encounter’ ” [citation], and if the person actually submits to the show of authority.’ ”
(Tacardon, supra, 14 Cal.5th at p. 241.)
“We consider the totality of the circumstances in determining whether a detention
occurred.” (Tacardon, supra, 14 Cal.5th at p. 241.) “Relevant circumstances may
include: the presence of multiple officers, an officer’s display of a weapon, the use of
siren or overhead emergency lights, physically touching the person, the use of a patrol car
to block movement, … the use of language or of a tone of voice indicating that
compliance with the officer’s request is compelled[]” (id. at pp. 241–242), “the time and
place of the encounter, whether the police indicated the defendant was suspected of a
crime, whether the police retained the defendant’s documents, and whether the police
exhibited other threatening behavior” (People v. Linn (2015) 241 Cal.App.4th 46, 58
(Linn)). “Questions by an officer of a sufficiently accusatory nature may ‘be cause to
view an encounter as a nonconsensual detention.’ [Citation.] The same is true for
commands or directions issued in the course of an encounter.” (Linn, at p. 58.)
In Tacardon, our Supreme Court addressed a situation very similar to the case at
bar. In the evening, an officer was on patrol in a marked car, in an area known for
narcotics sales and weapons possession. (Tacardon, supra, 14 Cal.5th at p. 238.) The
officer drove past a vehicle legally parked in front of a residence, in the vicinity of a
8
streetlight. (Ibid.) The vehicle’s engine and headlights were off, and “smoke emanated
from slightly open windows.” (Id. at pp. 238–239.) The officer saw three people in the
vehicle. (Id. at p. 239.) The officer made a U-turn, parked “about 15 to 20 feet behind”
the vehicle, and turned on his spotlight. (Ibid.) “He did not activate his siren or
emergency lights or issue any commands to the [vehicle]’s occupants. He sat in his
patrol car for 15 to 20 seconds while he informed dispatch of his location. He then
approached the [vehicle] at a walking pace. He did not draw a weapon.” (Ibid.)
As the officer approached the vehicle, a woman in the back seat “ ‘jumped out’ ”
and walked toward the back of the vehicle. (Tacardon, supra, 14 Cal.5th at p. 239.)
When asked what she was doing, she told the officer that she lived there. (Ibid.) The
officer directed the woman to stand near the sidewalk behind the vehicle where he could
see her. (Ibid.) “He spoke in a calm and moderate voice and did not draw a weapon.”
(Ibid.)
The officer then continued to the vehicle and smelled marijuana smoke coming
from inside the vehicle. (Tacardon, supra, 14 Cal.5th at p. 239.) He used his flashlight
to illuminate the interior of the vehicle and saw three plastic bags on the rear passenger
floorboard that contained “a green leafy substance.” (Ibid.) The defendant sat in the
driver’s seat. (Ibid.) Upon the officer’s request, both the defendant and the front seat
passenger identified themselves. (Ibid.) Only the passenger produced an identification
card. (Ibid.) The officer saw a partially burned, hand-rolled cigarette in the center
console. (Ibid.) He asked the defendant about the cigarette and the leafy substance in the
bags. (Ibid.) He also asked the defendant whether he was on probation or parole. (Ibid.)
The defendant said that he was on probation. (Ibid.) The entire discussion lasted two to
three minutes. (Ibid.)
The officer then told the defendant to remain seated and returned to his patrol car
to perform a records search. (Tacardon, supra, 14 Cal.5th at p. 239.) The officer
9
confirmed that the defendant was on probation and searched the vehicle, discovering
cash, marijuana, and hydrocodone pills. (Ibid.)
On that record, our Supreme Court had occasion to consider “how the use of a
spotlight affects the analysis of whether a detention took place.” (Tacardon, supra, 14
Cal.5th at p. 243.) It explained that “the use of a spotlight generally conveys a different
meaning to a reasonable person than the use of a patrol car’s emergency lights. Red and
blue lights are almost exclusively reserved for emergency and police vehicles.
[Citations.] An officer’s use of flashing red lights, or combination of red and blue lights,
behind a vehicle typically conveys a command to stop.” (Id. at p. 246.) “By contrast, a
reasonable person would understand that spotlights can have a practical function that
differs from the essentially communicative function of emergency lights. A spotlight can
be used to illuminate the surrounding area for safety or other purposes unrelated to the
projection of authority. Proper illumination enhances the officer’s ability to make
‘ “swift, on-the-spot decisions” ’ that are appropriate to the circumstances. [Citations.]
And, in certain circumstances, depending on how the spotlight is used, it might help both
the officer and the civilian see what the other is doing and make decisions accordingly.”
(Id. at pp. 246–247, fn. omitted.) Our high court therefore concluded that “a reasonable
person would distinguish between a spotlight and red and blue emergency lights in
considering whether the person was free to leave or otherwise terminate the encounter.”
(Id. at p. 247.)
In short, “use of a spotlight, standing alone, does not necessarily effect a
detention.” (Tacardon, supra, 14 Cal.5th at p. 247.) Our Supreme Court also made clear,
however, that it declined to state a bright-line rule. It considered hypothetical situations
in which a spotlight could be used in an authoritative manner: by flashing lights at the
driver to pull the vehicle over or attempting to blind the driver. (Ibid.) It then concluded
that the spotlight was not used in an authoritative manner in the case before it. (Id. at
10
p. 251.) The officer’s non-rapid “nighttime approach, aided by a spotlight for
illumination,” that did not involve posing of any questions or any accusations, “did not,
without more, effect a detention.”4 (Id. at p. 251.)
Here, defendant argues that, under the totality of the circumstances, he was
detained prior to Pinheiro learning of his parole status because Pinheiro parked his patrol
car behind defendant’s vehicle, illuminated defendant’s vehicle, approached the vehicle
on foot, and requested identification from defendant. We disagree.
First, as decided by our Supreme Court in Tacardon, a person is not detained when
an officer “park[s] behind [a parked vehicle (so long as the officer does not block the
vehicle in)], shine[s] a spotlight on it [(so long as the officer does not use the spotlight in
an authoritative manner)], and beg[ins] to approach on foot” (so long as the officer does
not approach rapidly). (Tacardon, supra, 14 Cal.5th at p. 247; see People v. Kidd (2019)
36 Cal.App.5th 12, 21, disapproved on other grounds by Tacardon, at pp. 247, 251
[“Without more, a law enforcement officer simply parking behind a defendant would not
reasonably be construed as a detention.”) Here, the trial court found that defendant was
“parked parallel on the side of the road.” Pinheiro did not block defendant’s car “in a
parking stall” or otherwise block his ability to drive away. Nor does the record suggest
that Pinheiro rapidly approached defendant’s vehicle. Indeed, the record contains no
evidence regarding the speed of Pinheiro’s approach.5 Further, the record demonstrates
4 Our Supreme Court did not resolve the ultimate question of whether a detention
was effected in Tacardon because the record was not developed regarding whether the
defendant had observed the officer detain the female passenger who exited the vehicle as
the officer approached. (Tacardon, supra, 14 Cal.5th at pp. 253–254.) Because the
record on that issue was not developed, our Supreme Court also did not consider the
effect of the officer asking the defendant for identification, which took place after the
detention of the female passenger.
5 The record indicates that Pinheiro “r[a]n the plates” on defendant’s vehicle. Based
on the order of questions, it appears that he did so prior to approaching defendant’s
vehicle but the record is not clear on that point.
11
that the spotlight was not used in an authoritative manner—such as positioning it to blind
the driver or flashing it at the vehicle as a means of indicating to the driver to pull over.
Pinheiro testified that he used the spotlight “due to the dark hours” and “[t]o illuminate
[Pinheiro’s] vehicle to make [the] approach safer.”
Second, a police officer’s merely asking a person for identification does not
necessarily implicate the Fourth Amendment, even if the officer does not immediately
return the proffered identification card. (Hiibel v. Sixth Judicial Dist. Court of Nev.,
Humboldt Cty. (2004) 542 U.S. 177, 185; Florida v. Bostick (1991) 501 U.S. 429, 434–
435; Linn, supra, 241 Cal.App.4th at pp. 59–61.) On the other hand, a police officer’s
order or demand that a person provide their identification suggests that compliance is
required, and the person is not free to leave. (See Bostic, at pp. 434–435 [a request for
identification is not a consensual encounter where the officer suggests that compliance is
required]; People v. Leath (2013) 217 Cal.App.4th 344, 353 [holding that an encounter
was consensual where the officer “asked for—but did not demand—identification”].)
Here, Pinheiro was asked if he “ask[ed defendant] for identification”; he responded,
“Yes.” On that record, it appears that Pinheiro requested and defendant voluntarily
produced his identification card. The trial court so concluded at the suppression hearing:
“It is lawful, a consensual encounter for the officer to seek identification … and
[defendant] voluntarily complied.” That circumstance tends to indicate that the encounter
was consensual and not a detention.
Third, the Tacardon court discussed the impact of an officer asking the defendant
investigative questions or accusing the defendant of wrongdoing. (Tacardon, supra, 14
Cal.5th at pp. 250–252.) Specifically, it considered Wilson v. Superior Court (1983) 34
Cal.3d 777, and People v. Kasrawi (2021) 65 Cal.App.5th 751, on that point. In Wilson,
the officer told the defendant that he was conducting a narcotics investigation and had
information suggesting that the defendant was carrying “a lot of drugs.” (Wilson, at
12
p. 790, italics omitted; Tacardon, at p. 250.) “Common sense suggests … that in such a
situation, an ordinary citizen, confronted by a narcotics agent who has just told him that
he has information that the citizen is carrying a lot of drugs, would not feel at liberty
simply to walk away from the officer.” (Wilson, at p. 790; Tacardon, at p. 250.)
Similarly, in Kasrawi, the officer parked within a few feet of the defendant’s parked car,
activated his spotlight, “immediately approached and walked to within a few feet of the
defendant, asking him where he was coming from.” (Tacardon, at p. 251, citing
Kasrawi, at pp. 754–755.) The appellate court in Kasrawi concluded that the defendant
was detained because “the officer parked within a few feet of the defendant’s car;
‘ “bathed” ’ the defendant with light; immediately approached with ‘speed and
surety,’ …; and asked an immediate, pointed question, which demanded an answer.”
(Tacardon, at p. 251, citing Kasrawi, at pp. 759, 760.) Here, in contrast, the record is
devoid of any indication that Pinheiro asked defendant any questions or suggested any
wrongdoing. He merely requested defendant’s identification and , based on the record,
defendant voluntarily complied. Again, an officer merely asking for identification, even
considering the use of a spotlight and other circumstances, does not transform a
consensual encounter into a detention. (Hiibel v. Sixth Judicial Dist. Court of Nev.,
Humboldt Cty., supra, 542 U.S. at p. 185; Florida v. Bostick, supra, 501 U.S. at pp. 434–
435; Linn, supra, 241 Cal.App.4th at pp. 59–61.)
Under the totality of the circumstances, defendant was not detained prior to
Pinheiro learning of defendant’s parole status and search conditions. We therefore find
no Fourth Amendment violation.6
DISPOSITION
Our prior opinion is vacated. The judgment is affirmed.
6 Because we find no Fourth Amendment violation, we need not consider
application of the exclusionary rule or the attenuation doctrine.
13