California Court of Appeals, First District, Fourth Division
Costa County Super. Ct. No. 02 3236411Honorable Charles B.
Burch Trial Judge
Counsel for Petitioner, Lamonte Brewer: D. Glenn Brown Law
Office, David Glenn Brown.
Counsel for Respondent, Superior Court of Contra Costa County
and Real Party in Interest, The People of the State of
California: Xavier Becerra, Attorney General, Gerald A.
Engler, Chief Assistant Attorney General, Jeffrey M.
Laurence, Senior Assistant Attorney General, Bruce M. Slavin,
Deputy Attorney General, Laurence K. Sullivan and Catherine
A. Rivlin, Supervising Deputy Attorneys General.
RIVERA, ACTING P.J.
Lamonte Brewer seeks a writ of mandate directing the trial
court to grant his motion to set aside an information
charging him with three gun possession crimes. Defendant
argues that the magistrate conducting the preliminary hearing
should have suppressed evidence of a gun that police found
during a search of a car, and that absent the gun evidence,
the charges were not supported by reasonable or probable
cause. The magistrate refused to suppress the gun evidence
because defendant lacked a reasonable expectation of privacy
in the car that was searched. The trial court denied
defendant's motion to set aside the information for the
conclude that defendant can challenge the gun evidence as the
fruit of an unlawful detention, even if he lacked an
expectation of privacy in the searched car. We will therefore
grant defendant's petition, and direct the trial court to
conduct further proceedings to determine whether the motion
to set aside the information should be granted.
FACTUAL AND PROCEDURAL BACKGROUND
was charged with possession of a firearm with a prior violent
conviction (Pen. Code, § 29900, subd. (a)(1), count
1); manufacturing, importing, keeping for
sale, or giving or receiving a large-capacity magazine
(§ 32310, subd. (a), count 2); and carrying a loaded
firearm (§ 25850, subd. (a), count 3).
Cliff Calderan was the only witness to testify at the
preliminary hearing. Calderan testified that on September 1,
2016 at approximately 9:40 p.m., he was on patrol near the
Crescent Park apartment complex in Richmond. The complex was
claimed by the Manor Boyz criminal street gang and was in a
high-crime area of Richmond. Calderan spotted a red Dodge
Grand Caravan in the parking lot. Defendant was sitting in
the rear of the vehicle. Two other people were in the driver
and front passenger seats. The person in the front passenger
seat was the registered owner of the vehicle.
and others officers at the scene approached the van. Calderan
testified that as he and the other officers were approaching,
defendant “ducked down behind the driver's seat
immediately.” Calderan then explained that: “We
told him [defendant] to get up and put his hands up. He
looked to the right, moved to the right, it seemed like he
was trying to find a way to get out of the vehicle.... After
several orders for him to remain still and put his hands up,
he moved to the back of the van and did so.” The
officers had their guns drawn, and also told the other
occupants of the vehicle to put their hands up.
approached the front passenger seat and located marijuana in
the possession of the person sitting there. The officers then
conducted a search of the vehicle (apparently after ordering
the three occupants out of the vehicle). During the search,
Calderan found a Glock 10-millimeter loaded with a 15-round
magazine underneath the rear of the driver's seat, in
front of where defendant had been seated.
moved at the preliminary hearing to suppress the gun
evidence, arguing it was obtained in violation of his Fourth
Amendment rights. The magistrate denied the motion because
defendant lacked an expectation of privacy in the searched
car, and held defendant to answer on each of the gun
the prosecution filed an information, defendant moved under
section 995 to set aside the information,  renewing his
argument that the gun evidence should be suppressed. The
trial court denied the motion. The trial court stated it was
“clear” that the police officers detained
defendant without reasonable suspicion. Nevertheless, the
trial court determined that ...