Brewer v. Superior Court

Filed 11/6/17 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

LAMONTE BREWER, Petitioner A151584 v. SUPERIOR COURT OF CONTRA Contra Costa County Super. Ct. COSTA COUNTY, No. 02 3236411 Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.

I. INTRODUCTION 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

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proceedings to determine whether the motion to set aside the information should be granted. II. FACTUAL AND PROCEDURAL BACKGROUND 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.