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The People v. Kima Rashan Downey

August 18, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KIMA RASHAN DOWNEY, DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of Riverside County. Sherrill A. Ellsworth, Judge. (Super.Ct.No. RIF150994)

The opinion of the court was delivered by: Richli J.

CERTIFIED FOR PUBLICATION

OPINION

Affirmed.

Defendant and appellant Kima Rashan Downey pled guilty to being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and unlawful possession of ammunition (Pen. Code, § 12316, subd. (b)(1)). Defendant also admitted that he had suffered one prior serious or violent strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and three prior prison terms (Pen. Code, § 667.5, subd. (b)). In return, defendant was sentenced to a total term of four years in state prison, with credit for time served. Defendant's sole contention on appeal is that the trial court erred in denying his suppression motion. (Pen. Code, § 1538.5.) We reject this contention and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND*fn1

Riverside Police Detective Kevin Townsend was assigned to the gang unit and had researched a probationer by the name of George Roussell.*fn2 Based on his research, Detective Townsend discovered that George Roussell was subject to standard Fourth Amendment probation search terms as a condition of his probation. Detective Townsend thereafter proceeded to determine where Roussell lived. This process was described by Detective Townsend as being "very difficult sometimes . . . ." The detective also explained that often probationers and parolees give false addresses to "basically" hide from the probation or parole searches.

Detective Townsend looked in different data bases and called various agencies; he discovered different addresses for Roussell. The probation department informed the detective that Roussell lived in Moreno Valley, the court computer system indicated that Roussell lived in Corona, and Roussell's California driver's license noted Roussell lived in Riverside on Gould Street. The most recent information, as of March 2009, was from utility bills registered in Roussell's name at 8123 Magnolia Avenue, No. 85, in Riverside. There was also a telephone number in Roussell's name that listed the Magnolia address. The Magnolia address came up more than once. Detective Townsend explained that in his experience many probationers and parolees, as well as the general public, do not know that police have access to utility bills; therefore, "it is a very good source in finding out where someone lives."

On June 4, 2009, about 10:30 p.m., Detective Townsend and other officers from the Riverside Police Department conducted a probation search of the apartment on Magnolia. After knocking on the door numerous times, the officers forced entry into the residence. Upon entering, the officers saw a black male identified as Tyrone Butler. Butler was immediately ordered to the floor and placed in handcuffs. The officers thereafter conducted a sweep of the apartment. During the sweep, two females and defendant were apprehended.

After all the occupants of the residence had been secured, the officers conducted the probation search. During the search, the officers found a loaded semiautomatic handgun with a round in its chamber in the kitchen. The officers also found paperwork in defendant's name and photographs showing defendant and Butler holding firearms, one of which appeared to be similar to the handgun found in the kitchen. A further search of the apartment revealed ammunition hidden in the kitchen.

Defendant demanded to know why the officers were present at the apartment, asserting that he was on neither probation nor parole. After an officer explained to defendant that they were there to conduct a search based upon Roussell's probation status, defendant exclaimed that Roussell did not live there; he had moved out "'[a]bout three months ago.'" Roussell was not present at the apartment; however, the officers found two utility bills in Roussell's name in the apartment dated April and May 2009.

Detective Townsend did not review the records on Roussell's criminal case. The trial court took judicial notice of those records, which indicated Roussell's address had been updated between June 1 and June 4, 2009. In addition, Detective Townsend did not contact the utility companies to verify who paid the bills or search the other addresses listed for Roussell.

The property manager at the apartments at 8123 Magnolia Avenue stated that defendant lived in the subject apartment in June 2009 with several other people. Defendant and his ex-wife had signed the lease in June 2009. The manager had been watching defendant's apartment very closely, because she had received complaints about the traffic and the number of people who stayed over. She was unaware of the names of the people who stayed at the apartment and did not know whether Roussell lived there. She acknowledged that Roussell could have lived at the apartment without her knowledge. The manager informed police detectives on the day of the search that defendant and his ex-wife were supposed to be the only persons staying at the apartment. ...


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