Filed 9/7/16 P. v. Miller CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E064666

v.                                                                      (Super.Ct.No. RIF1405068)

MICHAEL EDWARD MILLER, JR.,                                             OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Edward D. Webster

(Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) and Helios (Joe) Hernandez, Judges. Affirmed.

         MaryBeth LippSmith, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A.




                                                             1
Gutierrez, and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and

Respondent.

       Pursuant to a plea agreement, defendant and appellant Michael Edward Miller, Jr.,

pled guilty to possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) and

possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)). In return, the

remaining enhancement allegation was dismissed and defendant was sentenced to the

agreed-upon term of 16 months in state prison. Defendant’s sole contention on appeal is

that the trial court erred in denying his suppression motion. We reject this contention and

affirm the judgment.

                                             I

                  FACTUAL AND PROCEDURAL BACKGROUND1

       At around 10:00 a.m., on October 2, 2014, Riverside County Sheriff’s Department

Deputy Robert Wilson was dispatched to Chicago Avenue regarding a man with a gun.

Geraldine Kittelson was the reporting party. When Deputy Wilson arrived at about

10:20 a.m., Kittelson and David Barylski were at the location. Kittelson informed

Deputy Wilson that defendant had been staying with her uncle, Barylski, for a couple of

weeks; and that Barylski had called Kittelson to come over because defendant had “worn

out his welcome.” Kittelson further reported that she had encountered defendant holding




       1 The factual background is taken from the August 19, 2015 hearing on the
suppression motion.


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a shotgun and that when Kittelson told defendant to put the shotgun away, defendant

responded, “ ‘You better leave me alone before I snap.’ ”

       As Deputy Wilson was speaking with Barylski and Kittelson, defendant exited a

shed at the rear of the property. Kittelson pointed defendant out to Deputy Wilson and

said, “ ‘That’s him right there.’ ” Deputy Wilson contacted defendant and told him to

keep his hands where he could see them because the report involved a shotgun. The

deputy then conducted a patdown search of defendant’s person. As Deputy Wilson was

conducting the patdown search, he felt a cylindrical object that felt like a shotgun shell in

defendant’s rear pocket. Deputy Wilson asked defendant what the object was, and

defendant stated it was a shotgun shell. Deputy Wilson pulled the object out from

defendant’s pocket and confirmed his expert belief that the object was a 12-gauge

shotgun shell. Deputy Wilson asked defendant why the shell was in his pocket, and

defendant replied that he did not know. Deputy Wilson then asked defendant where he

put the shotgun. Defendant responded that a friend took it for him. Deputy Wilson also

asked defendant if he could search the shed to see if the shotgun was in there. Defendant

replied, “ ‘Go ahead.’ ” Deputy Wilson entered the shed and saw a 12-gauge shotgun

standing in a corner by a television set. The shotgun matched the description given by

Kittelson. The shed was described as a “hangout” area.

       Deputy Wilson acknowledged that he did not conduct a “records check” on

defendant prior to arriving at the location. The deputy explained that defendant’s name is

common and that he did not know defendant’s date of birth, but he tried to obtain it.



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Deputy Wilson also admitted that he did not see a shotgun or any weapons in defendant’s

hands, or any large bulges in defendant’s clothing when he saw defendant coming out of

the shed. Deputy Wilson further acknowledged that he did not write in his report that he

had asked defendant what the object in defendant’s pocket was before Deputy Wilson

pulled it out.

       Following Deputy Wilson’s testimony, defense counsel argued that the deputy

exceeded the scope of a permissible patdown search, because when Deputy Wilson

encountered defendant, defendant was not holding a weapon. Defense counsel further

claimed that since the patdown was unlawful, defendant’s consent was involuntary. The

prosecutor argued that Deputy Wilson responded to an eviction in process and was

advised the suspect had a shotgun; that such a situation was sufficient to place the deputy

on high alert; and that once the reporting party identified defendant, the deputy could

conduct a lawful patdown search for officer safety. The prosecutor further stated that the

deputy conducted a simple patdown of the exterior of defendant’s clothing and found an

item he believed to be a shotgun shell and that defendant admitted the shell was in his

pocket before it was removed. Finally, the prosecutor argued that there was nothing to

indicate defendant’s consent to search the shed was involuntary.

       The trial court denied defendant’s suppression motion. The court explained that

Deputy Wilson was called to the scene because of a report of a person holding a weapon;

and that when the deputy arrived, he learned that the person—defendant—was being

evicted and that defendant might “snap.” The court concluded that under these



                                             4
circumstances, Deputy Wilson could protect himself by searching defendant to ensure he

did not have additional weapons on his person; and that once the deputy found an item

that could be a potential weapon, and which the deputy believed to be a shotgun shell, he

could remove it from defendant’s pocket. The court also noted that even if the patdown

was illegal, the deputy would have an interest in locating the shotgun for safety reasons

based upon what Kittelson had reported.

                                             II

                                      DISCUSSION

       Defendant argues that the trial court erred in denying his suppression motion

because the deputy did not have probable cause to arrest defendant or seize the shotgun.2

The problem with this argument is that defendant never presented this issue to the trial

court. In the trial court, defendant complained about the identity of the reporting party,




       2  Defendant moves to disregard factual and procedural portions of the
respondent’s brief taken from testimony adduced at the preliminary hearing as well as
arguments raised in defendant’s written motion to suppress. These documents appear in
the clerk’s transcript and are a part of the record on appeal. We deny the motion to strike
the challenged portions of the respondent’s brief, because our practice is to disregard
improper argumentation and baseless statements of facts. Moreover, defendant’s written
motion to suppress evidence is relevant to the suppression issue raised in this appeal. In
cross-examining Deputy Wilson, defense counsel raised the deputy’s preliminary hearing
testimony at the suppression hearing. (Vons Companies, Inc. v. Seabest Foods, Inc.
(1996) 14 Cal.4th 434, 444, fn. 3 [normally, when reviewing the correctness of a trial
court’s judgment, an appellate court will consider only matters which were part of the
record at the time the judgment was entered].) Accordingly, we find defendant’s
assertions in support baseless and deny defendant’s motion to strike portions of the
respondent’s brief.


                                             5
the scope of the patdown search, and whether defendant’s consent to search the shed was

voluntary.

       In People v. Williams (1999) 20 Cal.4th 119, the California Supreme Court held

appellate review of the denial of a suppression motion, “ ‘must be limited to those

[issues] raised during argument . . . .’ [Citation.]” (Id. at p. 136.) The court was

emphatic that a defendant must “specify the precise grounds for a motion to suppress”

and stated, “defendants who challenge some specific aspect of a search or seizure other

than the lack of the warrant must specify the nature of that challenge at the outset.

[Citation.] The determinative inquiry in all cases is whether the party opposing the

motion had fair notice of the moving party’s argument and fair opportunity to present

responsive evidence.” (Id. at p. 135.) The court concluded any issue not specifically

raised in the trial court cannot be argued on appeal. (Ibid.)

       A thorough analysis of the transcript of the suppression hearing shows defendant’s

trial counsel never argued defendant’s arrest was unreasonable; whether the deputy was

entitled to seize the shotgun; whether the deputy was unaware defendant was a felon, on

parole or probation; or whether defendant was within the class of persons prohibited from

possessing firearms. The entire focus of defense counsel’s argument was on the scope of

the patdown. While his attorney certainly questions the deputy on whether the deputy

conducted a records check on defendant, it was never asserted as a ground for a

constitutional challenge to the arrest. Defendant’s written suppression motion also did

not challenge the arrest but rather focused on the identity of the reporting party, the scope



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of the patdown search, and the consent to search the shed. Consequently, the prosecution

did not elicit testimony supporting the arrest or the deputy’s knowledge concerning

defendant’s status as a felon, and the trial court did not rule on whether there was

probable cause to arrest defendant or to seize the shotgun. The issue cannot be raised on

appeal. (People v. Williams, supra, 20 Cal.4th at p. 136.)

       Defendant responds in his reply brief that this claim is cognizable on appeal; that

this court has the discretion to consider constitutional issues raised for the first time on

appeal; and that this issue presents a purely legal issue involving undisputed fact.

Defendant’s contentions are unmeritorious. As defendant somewhat acknowledges, there

is no evidence in the record upon which we are able to consider the merits of the present

claim.3

       In support, defendant relies on People v. Allen (1974) 41 Cal.App.3d 196 (Allen)

and People v. Blanco (1992) 10 Cal.App.4th 1167 (Blanco). Allen involved the question

of whether the defendant’s Fifth Amendment rights were violated when the authorities

compelled him to provide a hair sample while he was in custody. (Allen, at p. 201.)

Blanco concerned a constitutional due process challenge to Evidence Code section 1103,

even though the defendant only argued before the trial court that the statute did not apply.

(Blanco, at pp. 1169, 1171-1172.) The Blanco court, relying on Hale v. Morgan (1978)

22 Cal.3d 388, 394 (Hale) and Allen, at page 201, footnote 1, addressed the defendant’s


       3  In his opening brief, defendant asserts “Neither party developed the record very
well at the hearing on the motion to suppress.”


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constitutional challenge. (Blanco, at pp. 1172-1173.) Hale, also cited by defendant, held

that “although California authorities on the point are not uniform, our courts have several

times examined constitutional issues raised for the first time on appeal, especially when

the enforcement of a penal statute is involved [citation].” (Hale, at p. 394.)

       The situation here is very different because only such evidence as bore upon the

grounds set forth by defendant was presented. This is in stark contrast to the situation

where a reviewing court addresses a constitutional challenge to a statute or reviews a trial

court’s ruling based on undisputed facts. Here, there were no facts whatsoever elicited at

the suppression hearing concerning the deputy’s probable cause to arrest defendant or to

seize the shotgun.

                                             III

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                RAMIREZ
                                                                                        P. J.
We concur:



McKINSTER
                           J.



SLOUGH
                           J.



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