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Brewer v. Superior Court (The People of the State of California)

California Court of Appeals, First District, Fourth Division

November 6, 2017


         Contra 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.


         Defendant 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 same reason.

         We 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.


         Defendant was charged with possession of a firearm with a prior violent conviction (Pen. Code, § 29900, subd. (a)(1), count 1)[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).

         Detective 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.

         Calderan 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.

         Calderan 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.

         Defendant 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 possession charges.

         After the prosecution filed an information, defendant moved under section 995 to set aside the information, [2] 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 ...

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