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The People v. Javontae A. Felix

December 17, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAVONTAE A. FELIX, DEFENDANT AND APPELLANT.



(Solano County Super. Ct. No. 250009)

The opinion of the court was delivered by: Dondero, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After defendant's motion to suppress evidence (Pen. Code, § 1538.5) and dismiss an amended information (Pen. Code, § 995) was denied, he entered a plea of no contest to second degree robbery (Pen. Code, § 211), and two counts of attempted second degree robbery (Pen. Code, §§ 664, 211), which he admitted were strike convictions (Pen. Code, §§ 667, 1170.12). He also admitted personal use of a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b)(1)) associated with each conviction, and that he suffered a prior juvenile strike conviction for robbery (Pen. Code, § 211). In accordance with the plea agreement defendant was sentenced to a term of seven years in state prison.

In this appeal he renews his claim that a warrantless search of his residence was unlawful, and statements taken from him thereafter were the product of the illegality. We find that the search was in all respects lawful, and affirm the judgment.

STATEMENT OF FACTS*fn1

The charges against defendant were based upon two incidents that took place nearly a week apart in the same area of Suisun City. On both occasions robbery offenses were reported to the police. The arrest and search of defendant occurred at the conclusion of the second incident and ensuing police investigation.

On the night of November 21, 2007, two victims were robbed at 706 Wigeon Way in Suisun City. Nicholas Tejano testified that as he arrived at the home of his friend Robert Aragon and walked toward the front door he was approached by someone who "[c]ame out of the bush."*fn2 The person was just under six feet tall, dressed in a "black hoodie" that covered the back of his head, with short, "rough" black hair, and slight facial hair, and was holding a black semiautomatic handgun with a silver tip. He exclaimed to Tejano, "Give me your phone." He also asked Tejano for money. Tejano gave the man his phone and $30.

According to Robert Aragon's statement to the police, he observed Tejano and another man standing near the driveway as he came out of his house. He described the man with Tejano as "a black male with a hooded sweatshirt, dark clothing," in possession of a black handgun with a silver tip. The man told Aragon, "Give me all your stuff, nigger." When Aragon declined to do so, the man "said, 'I'm not kidding. I'll cap your ass." Aragon threatened to call the police, whereupon the man fled toward Bald Pate Drive. Both Tejano and Aragon told Officer Ronald Aiello of the Suisun City Police Department that they could not identify the suspect.

Later the same night Officer Aiello contacted Rolando Aguilar on Bridgewater Circle in Suisun City, about three blocks away from Aragon's residence. Aguilar was frightened, and "had been drinking." He reported to Officer Aiello that a "black male" had approached him, asked for a cigarette, then pointed a "dark-colored gun" at his head and demanded money. When Aguilar stated that he had no money, only an ATM card, the man directed Aguilar to "go to the bank to withdraw money." After they walked a short distance Aguilar pushed the man away and "ran for his life." Aguilar described the man as a young, "dark-complected male" who was "unshaven around his chin," wearing a "dark-colored hoodie."

On the night of November 27, 2007, Officer Michael Urlaub received a report of a robbery at the Sunset Shopping Center in Suisun City. The officer met with Thomas Lish in the parking lot of the shopping center. Lish reported to Officer Urlaub that he was sitting in his car eating dinner "in front of the McDonald's," when he was approached by a "dark-skinned Black male, approximately 18 to 22 years old, thin build, approximately five-seven to five-eight," wearing baggy blue jeans and a "hooded sweatshirt" pulled over his head. The man pointed a black handgun with a silver tip through the car window and demanded that Lish "give him everything he had." When Lish said "he didn't have anything," the man said "that he was going to let him go this time and not to call the cops." The man then walked away on a path that led out of the shopping center toward Snow Drive, a residential area. Lish immediately called the police.

As Officer Urlaub escorted Lish to the police station to view a photo lineup, Officer Aiello looked in the area of the Sunset Shopping Center for "potential suspects fitting the description that Officer Urlaub had broadcast." He observed and stopped "two subjects walking" behind the shopping center, but released them when he realized they did not "fit the description." As Officer Aiello continued "driving around" a woman on the corner of Bald Pate Drive and Ring Neck Lane waved at him to get his attention. The woman "said she had just seen a person jumping into the backyard of a home" on Ring Neck Lane at the corner of Bald Pate Drive, which was located about "one-quarter mile" away from the Sunset Shopping Center. The woman also found a "hooded black sweatshirt" on "the other side of the fence" at 703 Ring Neck Lane.

Officer Aiello immediately broadcast the information and "set up a perimeter" to station officers in the area to prevent anyone from leaving. He believed that the "person who had committed this robbery" and was "potentially involved" in the other robberies "that had recently occurred within the past week," was present or "living in that vicinity." Officers were stationed around the area, including Deputy Swafford of the Solano County Sheriff's Department, who reported with his police dog.

Deputy Swafford called Officer Aiello to report that he was at 345 Bald Pate Drive, where the "scent trail" followed by his dog had ended. When Officer Aiello arrived at that location Deputy Swafford pointed out a black, "replica" semiautomatic pistol on the ground "just past the fence line on the side of the home" that appeared to be "consistent" with the handgun described by Tejano and Aragon. Officer Aiello collected the weapon, then knocked on the front door of the residence. He was greeted by Tray Horall, who said he lived there. Officer Aiello stated that he was "searching for an armed suspect," and a firearm had been found next ...


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