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The People v. Paul Francoise Lamb

September 19, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
PAUL FRANCOISE LAMB, DEFENDANT AND APPELLANT.



(Super. Ct. No. F4513B)

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

P. v. Lamb CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 denial of his motion to suppress, defendant entered a negotiated plea of no contest to possessing a forged driver's license (Pen. Code, § 470b; further undesignated section references are to the Penal Code), five counts of passing a false check (§ 470, subd. (d)), two counts of possessing a fictitious check (§ 476), three counts of receiving stolen property (§ 496, subd. (a)), two counts of false impersonation (§ 529, subd. 3), possession of personal identifying information of 10 or more persons (§ 530.5, subd. (c)(3)), and three counts of burglary (§ 459). He also admitted four special allegations for prior prison terms (§ 667.5, subd. (b)). The trial court thereafter denied defendant's motion to withdraw his plea and sentenced him to an aggregate state prison term of 17 years, 8 months.

Defendant appeals, challenging the denial of his motions to suppress and to withdraw his plea. He also contends his sentence on several counts must be stayed pursuant to section 654, consecutive sentences were not validly imposed on some counts, and he is entitled to additional presentence credits. We reject defendant's challenges to his motions but agree in part on his other contentions. We therefore affirm in part and reverse in part.

Facts and Proceedings

In light of defendant's plea, the facts are taken from the preliminary hearing and the hearing on defendant's motion to suppress.

On February 2, 2009, T.W. was traveling northbound on Highway 49 north of Sonora when she came up behind a black Dodge Neon. There were two people in the Neon, a male driver and a female front passenger. T.W. observed the female pushing and hitting the male and pulling on the steering wheel, causing the car to swerve over the center line and back over the curb. The female was also waving her arms and yelling at the male. T.W. called 9-1-1 and reported her observation, indicating the car was being driven erratically with speed variations and she was afraid they might hurt someone. She also described the car and reported the license plate number. She gave her name, home telephone number and cell phone number.

At approximately 11:00 p.m., Officer Daniel Gomez received a report about a female subject striking a male subject in a black Dodge Neon. He was informed the registered owner of the car was Jamie Borges. Thereafter, Gomez saw and stopped a car matching the description. The driver of the car was defendant, and the female passenger was Jamie Borges.

Gomez requested identification from defendant and defendant said he lost his driver's license. Defendant identified himself as Matthew W. Gomez asked defendant to step out of the car in order to separate him from Borges. He placed defendant in the back seat of his patrol car with the door open.

Gomez questioned both defendant and Borges and each indicated there had been a verbal argument only. He could see no marks of a fight on the occupants except a cut on Borges's hand. Gomez checked on the driver's license for Matthew W. and learned it had expired. He also called T.W., who confirmed what she had reported to the 9-1-1 operator.

Borges gave Gomez consent to search her car. Gomez found a driver's license containing the name of Matthew W. and a photograph of defendant. However, the license appeared to him to be a forgery. Gomez ran the number on the license and it came up belonging to Lorraine T. Gomez also found in the car hundreds of preprinted blank checks. The name Matthew W. was on many of these checks, with different company names. He found checks containing other names as well, blank check paper and ink cartridges.

Also in the car were various items of merchandise and tools, along with receipts from various stores totaling approximately $14,000. Gomez found four visa gift cards, a visa debit card, a Walgreens card, an American Express gift card, and an AT&T refill card. Defendant and Borges informed Gomez they were on their way to visit a friend in Angels Camp named Lorie B.

Defendant was arrested and taken to jail, where he admitted his name was Paul Lamb. Tags for various clothing items purchased at TJ Maxx were found in defendant's pockets.

During a subsequent search of the home of Lorie B., officers found in a room that defendant had been occupying additional blank checks, a printer, various merchandise, and check-writing computer software. Lorie B. claimed that other items found in the house, such as a set of pots, an Xbox and a computer router, had been given to her by defendant as gifts.

Subsequent investigation revealed that many of the items found in the car or at the home of Lorie B. had been purchased using forged checks and false identification. Defendant and Borges were seen on surveillance cameras making some of the purchases.

Defendant was charged with possessing a forged driver's license, five counts of passing fraudulent checks, two counts of possessing fraudulent checks, four counts of receiving stolen property, two counts of false impersonation, possession of the personal identifying information of 10 or more people, three counts of entering a public building with intent to commit larceny, and providing false identification to a police officer. He was also charged with four special allegations for prior convictions.

After defendant's motion to suppress was denied, he entered no contest pleas to all charges except one count of receiving stolen property and providing false identification to a police officer. Defendant's subsequent motion to withdraw his plea was denied.

Defendant was sentenced to an aggregate term in state prison of 17 years, 8 months, consisting of the upper term of three years on the possession of a forged driver's license charge, consecutive one-third middle terms of eight months on each of the other charges, and one year each for the special allegations.

Discussion

I

Motion to Suppress

Defendant contends the trial court erred in denying his motion to suppress. He argues the traffic stop was unlawful, as it was based solely on statements received from an unknown informant.

"[T]he temporary detention of a person for the purpose of investigating possible criminal activity may, because it is less intrusive than an arrest, be based on 'some objective manifestation' that criminal activity is afoot and that the person to be stopped is engaged in that activity. [Citations.]" (People v. Souza (1994) 9 Cal.4th 224, 230.) "A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (Id. at p. 231.)

In Alabama v. White (1990) 496 U.S. 325 [110 L.Ed.2d 301], the police received an anonymous tip that a woman was carrying cocaine in an attache case and would be leaving an apartment building at a specific time, get into a car of a certain description, and drive to a specific motel. Acting on the tip, the police conducted surveillance and observed the woman proceed as predicted. She was then stopped, searched and cocaine was found in an attache case in her vehicle. (Id. at p. 327 [110 L.Ed.2d at pp. 306-307].)

The United States Supreme Court concluded the tip alone did not justify the stop, but the tip coupled with observations of the defendant's movements in accordance with the tipster's predictions made it reasonable to think the tipster had inside information about the suspect and therefore credit his assertion about illegal activity. (Alabama v. White, supra, 496 U.S. at p. 332 [110 L.Ed.2d at p. 310].)

In Florida v. J.L. (2000) 529 U.S. 266 [146 L.Ed.2d 254] (J.L.), an anonymous caller reported that a young black male standing at a bus stop and wearing a plaid shirt was carrying a gun. Sometime later, officers arrived at the bus stop and observed three black males "'just hanging out [there].'" (Id. at p. 268 [146 L.Ed.2d at p. 259].) One of the three, J.L., was wearing a plaid shirt. The officers did not see a firearm and J.L. made no ...


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