People v. Jones CA1/2

Filed 4/3/14 P. v. Jones CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A139395 v. LONNIE M. JONES, (Contra Costa County Super. Ct. No. 51211697) Defendant and Appellant.

Defendant Lonnie M. Jones appeals from the trial court’s denial of his motion to suppress evidence. He argues the court should have ruled the evidence was obtained as the result of his unlawful detention just outside the Bay Area Rapid Transit (BART) station in Concord, California. We disagree and affirm. BACKGROUND In an information as amended, the Contra Costa County District Attorney charged defendant with second degree robbery (Pen. Code, §§ 211/212.5, subd. (c)),1 the use of a dangerous weapon (§ 12022, subd. (b)(1)), and grand theft (§ 487, subd. (c)). Defendant moved to suppress evidence, which motion was heard in June 2013. Concord Police Officer Sean Donnelly testified that on June 14, 2012, a weeknight, about 9:05 p.m., he, still in uniform and armed, was gassing up his marked police car right by the Concord police station before going home. He heard a dispatch broadcast that an armed robbery had just taken place at a Safeway store several blocks

1 All statutory references are to the Penal Code unless otherwise noted.

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away. As other officers drove out of the police station with car lights and sirens on to investigate, Donnelly decided to drive slowly in a bus lane to the Concord BART station that was across the street from the police station. Donnelly put on his headlights, but did not activate his emergency lights or siren. Donnelly, a police officer for 18 years who by his own estimate had investigated 100 robberies or more, went to the BART station because in his experience criminals “often” went there to flee the area. At 9:07 p.m., as he drove slowly in the bus lane, he saw defendant sprinting towards him from the direction of the Safeway store; the BART station entrance was about 50 feet behind Donnelly. The BART station was open but there were “hardly any other people out at this time,” and no one else was running. Donnelly did not have a description of any robbery suspect at the time, but suspected defendant was the perpetrator. Donnelly further testified that, as defendant and he got closer to each other, defendant appeared to look at him, “abruptly stopped running,” and “just started walking.” Without blocking defendant’s path, Donnelly got out of the driver’s side of the police car and stood behind the car door. From a distance of about 20 or 25 feet, he asked defendant in a conversational tone something like, “Hey, did you just come from Safeway?” There was no train going by and no street traffic noise. In response, defendant stopped walking, put his head down and said, “Yes.” Donnelly then asked if defendant had a gun and “he said something to the effect of yeah, but [it’s] not a real one.” Donnelly said, acting for his own and public safety, drew his gun, moved toward defendant, ordered him to the ground, searched his person and backpack, and found a black replica firearm and a woman’s orange purse. The victim arrived at the scene about 10 or 15 minutes after Donnelly first contacted defendant, identified her purse, and said defendant was the man who had robbed her. Defendant was then arrested. After hearing from Donnelly, defendant, and his guardian (whose testimony the trial court discounted, and argument from counsel, the court ruled the detention occurred when Donnelly asked defendant if he was coming from Safeway and was justified based