Filed 7/19/16 P. v. Baca CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C077956

         v.                                                                     (Super. Ct. No. SF128067A)

STEVEN MICHAEL DEAN BACA,

                   Defendant and Appellant.

         Prior to trial, defendant filed a motion to suppress evidence pursuant to Penal
Code section 1538.5.1 The trial court denied the motion, finding defendant did not have a
reasonable expectation of privacy in the contents of the backpack at the time it was
searched because he had abandoned the backpack when he fled from the officer. On
appeal defendant contends the trial court erred in denying his motion to suppress




1        Undesignated statutory references are to the Penal Code.


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evidence. We conclude the warrantless search of defendant’s backpack did not violate
the Fourth Amendment because substantial evidence supports the trial court’s finding
defendant abandoned the backpack when he fled from the officers. We affirm the
judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND
       The facts are taken from the evidence presented at the hearing on defendant’s
motion to suppress. On May 9, 2014, Manteca Police Sergeant Gregg Beall and Stockton
Police Lieutenant Michael Reynosa were on patrol in the city of Stockton as part of the
San Joaquin County Gang Task Force. Lieutenant Reynosa was driving and Sergeant
Beall was in the passenger seat. The officers were patrolling one of the most violent
areas in Stockton; it was known for a high occurrence of gang activity (including Norteño
gang activity), narcotics trade, and shootings.
       At about 5:30 p.m., the officers observed defendant and a female riding their
bicycles against traffic. Defendant was wearing a solid red T-shirt Sergeant Beall knew
was a very common style of dress for Norteño gang members. Defendant was also
carrying a backpack. Lieutenant Reynosa activated the patrol car’s overhead lights to
conduct a traffic stop. Defendant looked back at the officers at least twice but did not
stop. He finally stopped after Sergeant Beall opened his door and ordered him to do so.
Because it appeared defendant was “going to take off,” Sergeant Beall got out of the
patrol car while it was still moving.
       Before he began questioning defendant, Sergeant Beall took defendant’s backpack
and placed it several feet away from him. During their conversation, defendant told
Sergeant Beall he had recently been arrested for attempted murder. Defendant stated he
had “beat” the case or it had been dismissed. Following this exchange, Sergeant Beall




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conducted a patdown search of defendant and discovered a folding pocket knife in his
right front pocket.2
       Sergeant Beall asked defendant if the backpack he was carrying belonged to him.
Defendant quickly responded: “[Y]es, [but] you can’t search it.” Given the fact he had
not asked defendant if he could search the backpack, defendant’s quick response, and the
way he was dressed, Sergeant Beall moved the backpack away from him. When Sergeant
Beall picked up the backpack, he noticed the weight inside was “localized” at the bottom.
To support the weight, Sergeant Beall placed his hand underneath the backpack. As soon
as he did so, defendant took off running.
       Sergeant Beall pursued defendant on foot while carrying the backpack. After
Sergeant Beall lost defendant in the bushes when he was running, he searched the
backpack and discovered a loaded .357 Smith & Wesson revolver and a loaded .22-
caliber Rosco Arms pistol. A perimeter was established and defendant was ultimately
apprehended.
       Defendant was charged with two counts of being a felon in possession of a firearm
(§ 29800, subd. (a)(1)) and two counts of being a felon in possession of ammunition
(§ 30305, subd. (a)(1)). In addition, it was alleged defendant had served three prior
prison terms (§ 667.5, subd. (b)), and had sustained a prior strike conviction (§§ 1170.12,
subd. (b), 667, subd. (d)).3



2      Sergeant Beall testified he conducted a patdown search of defendant for his safety
and the safety of his partner. Based on his training and 12 years of experience with
gangs, Sergeant Beall knew gang members frequently carry a weapon.
3       Prior to trial, the People amended the information to eliminate one of the felon in
possession of ammunition counts, and added the allegation defendant had sustained a
prior strike conviction. (§§ 1170.12, subd. (b), 667, subd. (d).) In addition, the trial court
granted the People’s motion to strike one of the three prior prison term allegations.


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       Prior to trial, defendant filed a motion to suppress. The trial court denied the
motion, finding defendant did not have a reasonable expectation of privacy in the
contents of the backpack at the time it was searched because he had abandoned the
backpack when he fled from the officers.
       Following a jury trial, defendant was found guilty of two counts of being a felon in
possession of a firearm (§ 29800, subd. (a)(1)) and one count of being a felon in
possession of ammunition (§ 30305, subd. (a)(1)). In a bifurcated proceeding, the trial
court found true the allegations defendant had served two prior prison terms (§ 667.5,
subd. (b)) and had a prior strike conviction (§§ 1170.12, subd. (b), 667, subd. (d)). The
trial court sentenced defendant to serve nine years four months in prison.
       Defendant filed a timely notice of appeal.
                                       DISCUSSION
       Defendant contends the trial court erred by denying his motion to suppress
because the warrantless search of his backpack was unlawful. According to defendant,
he did not abandon his backpack because he fled after it was illegally seized by Sergeant
Beall. We disagree.
       “Our review of issues related to the suppression of evidence seized by the police is
governed by federal constitutional standards.” (People v. Lenart (2004) 32 Cal.4th 1107,
1118.) “In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to
that court’s factual findings, express or implied, if they are supported by substantial
evidence. [Citation.] We exercise our independent judgment in determining whether, on
the facts presented, the search or seizure was reasonable under the Fourth Amendment.”
(Id. at p. 1119.)
       “The Fourth Amendment to the federal Constitution guarantees against
unreasonable searches and seizures by law enforcement and other government officials.”




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(People v. Parson (2008) 44 Cal.4th 332, 345.) “It has long been settled, however, that a
warrantless search and seizure involving abandoned property is not unlawful, because a
person has no reasonable expectation of privacy in such property.” (Ibid.)
       “[T]he intent to abandon [property] is determined by objective factors, not the
defendant’s subjective intent. ‘ “Abandonment is primarily a question of intent, and the
intent may be inferred from words, acts, and other objective facts. [Citation.]
Abandonment [in the context of the Fourth Amendment] is not meant in the strict
property-right sense, but rests instead on whether the person so relinquished his [or her]
interest in the property that he [or she] no longer retained a reasonable expectation of
privacy in it at the time of the search.” ’ ” (People v. Daggs (2005) 133 Cal.App.4th 361,
365-366, italics added.) “[P]roperty is abandoned when a defendant voluntarily discards
it in the face of police observation, or imminent lawful detention or arrest, to avoid
incrimination.” (Id. at p. 365.) “The question whether property is abandoned is an issue
of fact, and the court’s finding must be upheld if supported by substantial evidence.
[Citation.]” (Ibid.)
       We conclude the warrantless search of defendant’s backpack did not violate the
Fourth Amendment. Substantial evidence supports the trial court’s finding defendant
abandoned the backpack when he fled from the officers. Defendant’s decision to take
flight and leave the backpack behind after he was lawfully detained demonstrated an
intent on his part to abandon the backpack and its contents. As such, defendant did not
have an objectively reasonable expectation of privacy in the contents of the backpack at
the time it was searched by Sergeant Beall. (See People v. Brown (1990) 216 Cal.App.3d
1442, 1451 [“defendant’s act of dropping the bag before making a last-ditch effort to
evade the police supports the trial court’s finding that defendant indeed abandoned the
paper bag and lost any reasonable expectation of privacy in its contents”].)




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       We reject defendant’s contention the search of his backpack was unlawful because
Sergeant Beall illegally seized it.4 “[T]he Fourth Amendment . . . permit[s] a brief
detention of property on the basis of only ‘reasonable, articulable suspicion’ that it
contains contraband or evidence of criminal activity, [citation] . . . .” (Smith v. Ohio
(1990) 494 U.S. 541, 542 [108 L.Ed.2d 464].) Here, the evidence demonstrated Sergeant
Beall had 12 years of experience with gangs and he knew from his training and
experience gang members frequently carry a weapon. Sergeant Beall observed defendant
violate a traffic law in a high crime area known for gang activity. He also observed
defendant wearing a solid red shirt he knew was a very common style of dress for
Norteño gang members. When the officers attempted to conduct a traffic stop, defendant
did not immediately yield and then acted as if he were about to flee. Once detained,
defendant told Sergeant Beall he had recently been arrested for attempted murder. In
addition, a patdown search revealed defendant was carrying a knife in his front pocket.
In response to Sergeant Beall’s question about whether the backpack belonged to him,
defendant quickly responded that he could not search his backpack. Based on these facts,
we conclude Sergeant Beall was justified in briefly detaining the backpack since it was
reasonable for him to believe it contained a weapon or evidence of criminal activity.
Accordingly, because the abandonment of the backpack was not the direct result of an




4       Defendant does not dispute that he was lawfully detained for violating a traffic
law. Nor does he argue the detention was unduly prolonged, or the patdown search was
illegal. Instead, he argues the search of his backpack was unlawful because the backpack
was illegally seized when Sergeant Beall picked it up and moved it farther away from
him. It has long been recognized where the abandonment is the direct result of unlawful
police conduct, then the evidence so seized is the product of an illegal act in violation of
constitutional guarantees and thus inadmissible. (See Badillo v. Superior Court (1956)
46 Cal.2d 269, 273 [contraband thrown during flight following an unlawful entry].)


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unlawful seizure, the guns discovered inside were not obtained in violation of the Fourth
Amendment.
                                     DISPOSITION
      The judgment is affirmed.



                                                             /s/
                                                HOCH, J.



We concur:



          /s/
HULL, Acting P. J.



         /s/
RENNER, J.




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