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People v. Turner

California Court of Appeals, First District, First Division

July 10, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
CURTIS MARQUIS TURNER, Defendant and Appellant.

         Superior Court of the County of Contra Costa No. 5-151786-1, Diana Becton, Trial Judge

          Counsel for Defendant and Appellant: Jeffrey A. Glick, Curtis Marquis Turner, First District Appellate Project

          Counsel for Plaintiff and Respondent: Xavier Becerra, Attorney General Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Lawrence, Senior Assistant Attorney General Leif M. Dautch, Deputy Attorney General Jalem Z. Peguero, Deputy Attorney General

          Humes, P.J.

         After defendant Curtis Turner refused to leave a restaurant, he was arrested for interfering with a business establishment under Penal Code section 602.1, subdivision (a), and a revolver, ammunition, and methamphetamine were found in his duffel bag. A jury convicted him of various crimes based on his possession of these items, and the trial court placed him on probation for three years.

         On appeal, Turner contends that the trial court erred by (1) denying his motion to suppress the contraband and (2) admitting evidence of a previous arrest during which he was found in possession of the identical type of ammunition. We hold that the court properly denied the motion to suppress because the contraband was discovered in an inventory search after an arrest supported by probable cause. We also hold that the court properly admitted evidence of Turner's prior possession of the same type of ammunition because it impeached his specific testimony suggesting that the police planted the contraband in this case. Therefore, we affirm.

         I. Factual and Procedural Background

         A. The Preliminary Hearing and the Motion to Suppress.

         The following facts are drawn from the preliminary hearing and formed the basis for Turner's motion to suppress.

         In the early morning of September 15, 2015, San Pablo Police Officer Greg Niemi responded to a Nation's restaurant after receiving a report that a man was “refusing to leave.” When Officer Niemi arrived, the restaurant manager pointed to a booth where the officer saw a man “slouched over” who “appeared to be sleeping, leaning on a duffel bag, with a jacket pulled over his head.”

         Officer Niemi approached the booth and “called out to [the man] several times, ” but the man did not respond. Officer Niemi then touched the man's shoulder and continued speaking to him, and the man eventually told him to go away. Officer Niemi lifted the man's jacket off his head and recognized the man as Turner, whom the officer had frequently seen “near or in front of Nation's restaurant” after “being dispatched there for the same reason.”

         After pulling the jacket off Turner's head, Officer Niemi told Turner that he needed to leave. Turner did not respond. Officer Niemi then noticed a cell phone charger plugged into an outlet behind Turner's booth, unplugged the charger, and put it on top of Turner's jacket while again informing Turner that he needed to leave.

         Turner eventually began searching for his cell phone, first around his booth and then in nearby garbage cans and unoccupied booths. After Turner was unable to find it, Officer Niemi told him he could file a lost property report, but Turner responded that he did not want to do so. Then, in “[s]omewhat of an agitated tone, not overly loud, ” Turner accused the officer of stealing the phone. Officer Niemi told Turner yet again that he needed to leave the restaurant, and the officer then picked up Turner's duffel bag and carried it outside. On the way, Turner asked the restaurant manager to call his cell phone, which she did. Turner then followed Officer Niemi outside.

         Once outside, Officer Niemi put Turner's duffel bag next to a planter box outside the front door. Officer Niemi again told Turner that he needed to leave, but Turner instead began looking into the restaurant's windows and checking the planter boxes. As Turner continued to do this for three or four minutes, Officer Niemi advised him that he needed to leave or he would be arrested. Some customers began to walk into the restaurant, and Turner asked them “to keep an eye out for his cell phone[, ] and he asked another customer to try to call his cell phone.” After the customers had gone inside, Turner opened the door and again asked one of the customers to try to find his cell phone.

         Officer Niemi went back inside and asked the restaurant manager “if she wanted [Turner] removed from the property, ” and she said “she wanted him arrested for trespassing.” She then signed a form for a citizen's arrest and request for prosecution. She told Officer Niemi that Turner had been in the restaurant, which is open 24 hours a day, for about eight hours and had been asked to leave approximately four times.

         Officer Niemi returned outside, where Turner was standing in front of the restaurant's windows and now holding the duffel bag. The officer took the bag and placed Turner in handcuffs. Officer Almir Dugonjic arrived and transported Turner and his bag to the police station, where Turner was booked.

         Officer Niemi testified that the San Pablo Police Department has a standard policy when arresting someone of “conduct[ing] an inventory search on any property logged in for safekeeping... to create a list of any valuable items that might possibly be in the property, as well as anything that might potentially be dangerous.” Due to a “miscommunication” between him and Officer Dugonjic, Officer Niemi did not conduct an inventory search of Turner's duffel bag until about 18 hours after the arrest. Officer Niemi had asked Officer Dugonjic to conduct an inventory search before putting the bag in an evidence locker, but Officer Dugonjic did not do so. When Officer Niemi searched Turner's duffel bag, he found a fully loaded.38 caliber six-shot revolver that appeared to be functioning, a 50-round box containing 44 rounds of.38 caliber ammunition, which matched the ammunition in the revolver, and a niacin pill bottle with a white crystalline substance inside that was later determined to be slightly over three grams of methamphetamine.

         Turner filed a motion to suppress that the magistrate heard at the preliminary hearing. After considering the parties' argument on whether there was probable cause to arrest Turner for various forms of trespass, the magistrate denied the motion without giving its reasons for doing so. The People then filed an information charging Turner with a felony count of possession of a firearm by a felon, a felony count of possession of ammunition by a felon, and a misdemeanor count of possession of methamphetamine.[1]

         Before trial, Turner filed a renewed motion to suppress and a motion to dismiss the information under Penal Code section 995, both of which contended that the magistrate erred in denying the original motion to suppress because Officer Niemi lacked probable cause for the arrest. Turner relied on the transcript of the preliminary hearing and did not present any new evidence. The trial court denied the motions, ruling that there was probable cause to arrest Turner for a violation of Penal Code section 602.1, subdivision (a) ...


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