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The People v. Mark Anthony Livingston

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


October 26, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARK ANTHONY LIVINGSTON, DEFENDANT AND APPELLANT.

(Super. Ct. No. SM266352A)

The opinion of the court was delivered by: Nicholson , Acting P. J.

P. v. Livingston 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Mark Anthony Livingston appeals the denial of his motion to suppress evidence which the police found in a search of a vehicle he was driving. On appeal, defendant contends the vehicle search cannot be justified as a search incident to his arrest or under the automobile exception to the warrant requirement. We disagree and affirm.

BACKGROUND

I

Factual Background

On September 23, 2008, at approximately 11:23 a.m., Officer Richert Kamaiopili and Officer Grubb, both of the Stockton Police Department, were on patrol in the area of River Brook Drive and March Lane in San Joaquin County.*fn1 After turning onto River Brook Drive, the officers spotted a four-door Toyota sedan approximately 200 feet in front of them stopped in the roadway next to a small, parked SUV. As the patrol car approached the Toyota, a person appeared from the right side of the parked SUV, walked around the back of it, and entered the passenger seat of the Toyota. The Toyota began to drive away.

Officer Kamaiopili ran a check on the Toyota's license plate number and learned it was registered to Jesse Booth. Officer Kamaiopili ran a records check on Booth, which revealed he had 11 prior arrests for burglaries. Officer Kamaiopili was aware there had been 77 reported auto burglaries in the Lakeview District between September 8, 2008, and September 21, 2008.

Officer Kamaiopili directed Officer Grubb, who was driving the patrol car, to make a traffic stop of the Toyota for having stopped in the roadway next to the parked SUV.*fn2 After the Toyota was stopped, Officer Kamaiopili walked up along its passenger side. The Toyota had two occupants, the driver and the front seat passenger.

Officer Kamaiopili asked the driver, defendant, for his driver's license and insurance documentation. Defendant presented his driver's license, which properly identified himself, while the front seat passenger looked for insurance and registration documentation in the glove compartment. The front seat passenger indicated he could not find the documentation, but said he owned the vehicle, verbally identified himself as Booth, and presented Officer Kamaiopili with a California identification card. While Booth was looking for the insurance and registration documentation in the glove compartment, Officer Kamaiopili noticed Booth's right hand was down at the side of his leg. Officer Kamaiopili asked Booth to elevate his hand.

After obtaining Booth's identification card, Officer Kamaiopili explained the basis for the traffic stop and asked defendant why he had stopped in the middle of the roadway. As defendant offered an explanation, Officer Kamaiopili noticed Booth again drop his hand to the side of his seat. Officer Kamaiopili stepped back and looked at the floorboard behind the passenger seat and observed what appeared to be a 15- to 18-inch stick among debris.

Officer Kamaiopili returned to the patrol car and ran a records check on defendant. The records check revealed an outstanding traffic bench warrant for defendant's arrest. Officer Kamaiopili called another Stockton Police Department unit to the scene for assistance, and Officer Park McAllister arrived shortly thereafter.

Officer Kamaiopili returned to the Toyota. He asked defendant to step out. Officer Kamaiopili noticed that the stick, which had been on the floorboard, was no longer there. Officer Kamaiopili cuffed defendant and placed him under arrest on the bench warrant. Officer Grubb escorted defendant to the back of the patrol car.

Given the 77 reported auto burglaries in the area, Officer Kamaiopili instructed Officer McAllister to go back to where the Toyota had been double-parked and check the vehicles there. After Officer McAllister left, Officer Kamaiopili asked Booth to get out of the vehicle so they could talk. When Booth got out, Officer Kamaiopili noticed dried blood on Booth's right hand, on his right pocket area by his thigh, and on the seat where his hand had been.

Approximately four minutes after Officer McAllister left the scene, Officer Kamaiopili received a radio update from him. Officer McAllister said he "found a vehicle, a Ford Edge" with its "rear passenger window shattered." Officer Kamaiopili placed Booth under arrest for automobile burglary and put him in the backseat of the patrol car with defendant. At that time, Officer Kamaiopili informed defendant he was also under arrest for suspicion of automobile burglary.

Officer Kamaiopili searched the Toyota and called for a tow truck. Officer Kamaiopili searched the glove compartment, center console, under the front passenger seat and driver's seat, backseat, and the trunk. Officer Kamaiopili testified he searched the vehicle "subsequent to an arrest" and not pursuant to any inventory policy.

At the suppression hearing, no testimony was given as to what the search of the Toyota uncovered. In the prosecution's opposition to the motion to suppress, it was represented that a checkbook and a driver's license issued to Laura Stansfield, a driver's license issued to Carrie Blake, and a check written to Carrie Blake from the account of Felicia Rossiter were found in the glove compartment. In addition, a "ball ping hammer" was found under the front passenger seat, and ammunition was found in the center console.

II

Procedural Background

On September 25, 2008, the San Joaquin County District Attorney filed an amended complaint charging defendant (and Booth) with: (1) automobile burglary (count 1); (2) receiving stolen property (count 2); and (3) misdemeanor possession of burglar's tools (count 3). On October 7, 2008, the district attorney filed another complaint charging defendant (and Booth) with a separate count of receiving stolen property. On December 12, 2008, the trial court ordered the cases consolidated for all purposes.

The court heard and denied defendant's suppression motion on February 25, 2009. In denying the motion, the court stated: "So the Court finds that the officer had grounds to stop the vehicle due to a Vehicle Code violation by parking in the middle of the street. . . . [¶] . . . Upon stopping the vehicle and getting the information from the driver, which is [defendant] here, the officer found that he had an outstanding warrant. So there was a reason then, a reasonable suspicion at that point to arrest the defendant. [¶] The Court will take judicial notice of the file showing indeed [defendant] had a warrant upon his arrest and the passenger's arrest, who was the owner of the vehicle. They had the right to search the vehicle, which they did, although I didn't hear what was found in there. It appears to be a lawful search of the vehicle. [¶] . . . Once it became an auto burglary, they had more grounds to search of [sic] the whole vehicle, that's how the Court views it."

After his motion to suppress was denied, defendant pled no contest to automobile burglary, misdemeanor possession of burglar's tools, and two counts of receiving stolen property. At sentencing on March 27, 2009, the court suspended imposition of the sentence, placed defendant on five years' formal probation, and imposed a term of 365 days in county jail.*fn3 This timely appeal followed.

DISCUSSION

I

Motion To Suppress

In reviewing a suppression ruling we defer to the trial court's factual findings, whether express or implied, when supported by substantial evidence and we independently determine whether the facts of the challenged search and/or seizure violated defendant's Fourth Amendment rights. (People v. Lomax (2010) 49 Cal.4th 530, 563; People v. Ferguson (2003) 109 Cal.App.4th 367, 371.) When, as here, "the facts are basically undisputed, . . . we independently review the trial court's legal decision." (People v. Ferguson, supra, 109 Cal.App.4th at p. 371.)

On appeal, defendant does not contest the legality of the traffic stop or his arrest. Instead, he disputes the legality of Officer Kamaiopili's search of the Toyota incident to his arrest. Defendant cites a case decided seven months after the search and two months after his motion to suppress evidence acquired from that search, Arizona v. Gant (2009) 556 U.S. 332 [173 L.Ed.2d 485] (Gant). He says Gant precludes the vehicle search being considered incident to his arrest.*fn4 Nor, according to defendant, can the search be justified under the automobile exception to the search warrant requirement. The People contend the search was authorized under Gant and under the automobile exception. The People have the better argument.

In Gant, the Supreme Court revisited its decision in New York v. City of Belton (1981) 453 U.S. 454 [69 L.Ed.2d 768] (Belton). For more than a quarter of a century, Belton had "been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search." (Gant, supra, 556 U.S. __ [173 L.Ed.2d at p. 495].) Gant "clarified" Belton. Now, according to the federal high court, the police may "search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." (Id. at p. __ [173 L.Ed.2d at p. 496], fn. omitted.)

At the same time it limited Belton's scope, Gant added a new exception to the search warrant requirement: a vehicle search incident to a recent occupant's arrest is also permissible if it is reasonable to believe evidence relevant to the offense of arrest might be found in the vehicle. (Gant, supra, 556 U.S. __ [173 L.Ed.2d at pp. 491, 496, 501].) According to Gant, "circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' Thornton v. United States, 541 U.S. 615, 632 [158 L.Ed.2d 905] (Scalia, J., concurring in judgment) [(Thornton)]." (Gant, supra, 556 U.S. __ [173 L.Ed.2d at p. 496].) Discussing this exception further, the court said "[i]n many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. [Citations.] But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein." (Ibid.)

Defendant and Booth were handcuffed and in the back of the patrol car at the time of the search -- they were not "unsecured and within reaching distance of the passenger compartment at the time of the search." (Gant, supra, 556 U.S. __ [173 L.Ed.2d at p. 496], fn. omitted.) Thus, a Belton search was no longer an option. Nevertheless, the search of the Toyota's passenger compartment was lawful under Gant because it was reasonable to believe that "'evidence relevant to the crime of arrest might be found in the vehicle.' [Citation.]" (Id. at p. __ [173 L.Ed.2d at p. 496].)

The "offense of arrest" was the automobile burglary. Conceivably, the offense of arrest standing alone made it reasonable to believe that evidence relevant to the crime, such as burglar tools and stolen property, might be found in the Toyota. (Gant, supra, 556 U.S. __ [173 L.Ed.2d at p. 496]; Thornton, supra, 541 U.S. at p. 630 [158 L.Ed.2d at p. 919] (conc. opn. of Scalia, J.) ["it is not illogical to assume that evidence of a crime is most likely to be found where the suspect was apprehended"]; Brown v. State (Fla.Dist.Ct.App. 2009) 24 So.3d 671, 677 [concluding that theft, the offense of arrest, supplied an adequate basis to search a vehicle under Gant].) In any event, in addition to the offense of arrest, a combination of several facts made it reasonable to believe that evidence relevant to automobile burglary might be found in the Toyota.

Officer Kamaiopili first spotted the Toyota stopped in the roadway next to a parked SUV. After the patrol car pulled up, an individual came around the right side of the SUV, entered the Toyota and the Toyota drove away. After running the Toyota's license plate number, Officer Kamaiopili learned that it was registered to Booth and that he had 11 prior arrests for burglaries. Officer Kamaiopili knew there had been 77 automobile burglaries recently reported in the area. After pulling the Toyota over, Officer Kamaiopili twice spotted Booth lower his hand out of sight, and he observed a 15- to 18-inch stick among debris on the floorboard behind Booth. When Officer Kamaiopili returned to the vehicle after running a records check on defendant, the large stick was no longer visible. Officer Kamaiopili later observed dried blood on Booth's right hand, right pocket area, and on the passenger seat where Booth's hand had been. Finally, Officer Kamaiopili received a radio update from Officer McAllister that a Ford Edge (an SUV) in the vicinity where the Toyota was initially double-parked had a shattered rear passenger window. Officer Kamaiopili had knowledge of all these facts prior to effectuating defendant's arrest for automobile burglary.

Given all these facts, a peace officer in Kamaiopili's position could reasonably believe defendant and Booth were out burglarizing vehicles, Booth may have been using his hands to break glass or otherwise force entry into vehicles, and evidence relevant to automobile burglary, such as burglar tools or stolen property, might be in the vehicle. Accordingly, under Gant, the search of the Toyota's passenger compartment was lawful.

Apart from Gant, the automobile exception is also applicable here.*fn5 Based on all the facts detailed above, at the time of defendant's arrest for automobile burglary, there was probable cause to believe the Toyota contained evidence of automobile burglary. Thus, Officer Kamaiopili could lawfully search "any area of the vehicle in which the evidence might be found," (Gant, supra, 556 U.S. __ [173 L.Ed.2d at p. 498]), including the passenger compartment and the trunk. Furthermore, once evidence of criminality was lawfully found in the passenger compartment, this additionally furnished probable cause to search the trunk. (People v. Hunter (2005) 133 Cal.App.4th 371, 381-382 [recognizing that probable cause to search a trunk can arise from contraband lawfully found in the passenger compartment]; People v. Dey (2000) 84 Cal.App.4th 1318, 1322 [same].)

Because Officer Kamaiopili's search was lawful under Gant and the automobile exception to the search warrant requirement, we uphold the trial court's suppression ruling.*fn6 While defendant dedicates much of his briefing to an in-depth discussion of Gant and related cases, he advances a few arguments, none of which compel a different result.

As for whether the search was lawful under Gant, defendant notes he was initially arrested on a traffic bench warrant and it did not supply any basis for searching the Toyota. This observation is beside the point. The vehicle search was conducted after defendant was arrested for automobile burglary which is the "offense of arrest" at issue.

Next, defendant contends, even after he was placed under arrest for automobile burglary, "there was nothing in the record to indicate what kind of possessions might have been stolen, or where they might have been found." However, it was unnecessary for Officer Kamaiopili to know precisely what kind of possessions might be stolen, or exactly where inside the Toyota they might have been found. Gant required only a reasonable belief that "evidence" relevant to automobile burglary "might be found in the vehicle" (Gant, supra, 556 U.S. __ [173 L.Ed.2d at pp. 491, 496]), which belief certainly existed here and supplied a basis to search the Toyota's passenger compartment and any containers therein. The automobile exception required only probable cause to believe the Toyota contained evidence of criminal activity somewhere in the vehicle. (Gant, supra, 556 U.S. __ [173 L.Ed.2d at p. 498]; see also United States v. Ross, supra, 456 U.S. at p. 823; United States v. Powell (7th Cir. 1991) 929 F.2d 1190, 1196-1197.) Because such probable cause existed, Officer Kamaiopili was authorized to search any area of the Toyota in which the evidence might be found. (Gant, supra, 556 U.S. __ [173 L.Ed.2d at p. 498].)

Finally, defendant claims "[n]othing in these circumstances prevented the officer from getting a warrant to later search the car when it was in storage." This is immaterial. The search Gant permits when it is reasonable to believe evidence relevant to the offense of arrest might be found in the vehicle (Gant, supra, 556 U.S. __ [173 L.Ed.2d at p. 496]) is an exception to the search warrant requirement. So, too, is the automobile exception.

Despite all defendant's arguments to the contrary, Officer Kamaiopili's search was lawful under Gant and the automobile exception to the warrant requirement.

II

Presentence Conduct Credit

Pursuant to this court's miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue of whether amendments to Penal Code section 4019,*fn7 effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits. Since the issuance of our miscellaneous order No. 2010-002, the Legislature has enacted yet another statute, section 2933, subdivision (e), concerning presentence credits for defendants sentenced to state prison. (See § 2933, subd. (e), as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.) In addition, the January 25, 2010, version of section 4019 has been altered. (See § 4019, as amended by Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010.)

Because defendant was sentenced to county jail, not state prison, the recently enacted section 2933, subdivision (e) does not apply. As for section 4019, which covers individuals sentenced to county jail, we must address whether the new version of the statute, i.e., the September 28, 2010, version or the January 25, 2010, version is the relevant statute here.

Subdivision (g) of the new version of section 4019 provides that "the changes in [section 4019] as enacted by the act that added this subdivision shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or road camp for a crime committed on or after the effective date of that act." (See § 4019, subd. (g), as amended by Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010.) As indicated, the effective date of that act is September 28, 2010. Because defendant was sentenced to county jail before this effective date, the older January 25, 2010, version of section 4019 is the relevant statute here.

As for retroactivity, we conclude that the January 25, 2010, version of section 4019 applies retroactively in this case. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [applying Estrada to amendment involving conduct credits].) Because defendant does not have present or prior convictions for a "violent" or "serious" felony and is not subject to registration as a sex offender, he is entitled to the additional accrual of credit provided for in the January 25, 2010, version of section 4019. (§ 4019, former subds. (b)(2) & (c)(2), as amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.)

Unfortunately, the record does not indicate how many presentence credits defendant received. Although credits were mentioned below, the trial court did not award credits as part of its judgment at sentencing, and the court's minutes are silent on the issue of credits. During proceedings in the trial court, it appears from discussion on the record that defendant spent 120 days in presentence custody, which would give him 120 days' presentence conduct credits under the January 25, 2010, version of section 4019, for a total of 240 days' credit. Because no credits were actually awarded, however, we cannot definitively compute the additional presentence conduct credits to which defendant is entitled.

We remand with instructions to the trial court to amend the judgment to award defendant the amount of credits to which he is entitled, including presentence conduct credits under the January 25, 2010, version of section 4019. In addition, the minutes must be amended to reflect the amount of credits awarded.

DISPOSITION

We affirm the trial court's suppression ruling. We remand with instructions to amend the judgment to award defendant the amount of credits to which he is entitled, including presentence conduct credits under the January 25, 2010, version of section 4019, and to amend the minutes to reflect the credits awarded.

We concur: BUTZ , J. MAURO , J.


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