Filed 8/21/14 P. v. Watson CA2/2
                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B249637

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA081638)
         v.

DARNELL BYRON WATSON,

         Defendant and Appellant.




         APPEAL from judgment of the Superior Court of Los Angeles County. Mark E.
Windham, Judge. Affirmed.


         Philip Kent Cohen, APC, Philip Kent Cohen, Michelle A. Mabugat, and Leonard
A. Manalo for Defendant and Appellant Darnell Byron Watson.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and
Jonathan J. Kline, Deputy Attorneys General for Plaintiff and Respondent.




                                                       ******
       Following denial of his motion to suppress evidence made initially at the
preliminary hearing and then renewed in the trial court under Penal Code1 section 1538.5,
subdivision (i), appellant Darnell Byron Watson pled no contest to possession of a
controlled substance (Health & Saf. Code, § 11350, subd. (a)). The court granted
Proposition 36 probation but stayed execution pending appellate review.
       On appeal, appellant challenges the trial court’s denial of the renewed suppression
motion, arguing the trial court erred because he was unlawfully detained. We find no
error and affirm the judgment.
                  FACTUAL AND PROCEDURAL STATEMENT2
Prosecution Case
       At approximately 12:50 a.m. on the morning of June 6, 2012, Culver City Police
Officer Chris Horii and his partner, Officer Ferrier, were on patrol in a vehicle in the
parking lot of the Ramada Hotel. The area was known for prostitution and narcotics
activities. As Officer Ferrier drove down the driveway of the hotel parking lot, Officer
Horii saw appellant walking in front of the vehicle with his back towards them. Officer
Horii could see appellant in the headlights of the police vehicle. When appellant was
illuminated by the headlights he looked over his shoulder at the police vehicle. Appellant
then removed an object from his front right pocket and tossed it to his right between two
parked cars. The officers suspected appellant had littered and drove up to him and spoke
with him. Appellant denied throwing anything. Officer Horii searched the area where he
saw appellant throw the object and found a one-by-two-inch white paper bindle
containing cocaine.




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

2      Because appellant’s initial motion to suppress evidence was brought at the
preliminary hearing, we summarize the facts adduced during that hearing. (§ 1538.5,
subd. (i).)
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Defense Case
       Appellant testified that he was walking towards his car in the parking lot of the
Ramada Hotel when the police vehicle entered the driveway behind him. The police
vehicle had both the headlights and the red and blue overhead lights on. The vehicle’s
siren was not on. Appellant testified that he turned around and “made eye contact with
them or, you know, with the car.” When he turned back to continue walking the officers
put the side-spotlight on him, and he heard them telling him to “stop.” Appellant did not
stop but continued walking. Appellant testified that he did not want to be arrested with
drugs on him so he reached into his pocket and tossed away a bindle of cocaine. He lied
to Officer Horii when asked if he had thrown anything away.
Motion to Suppress
       At the conclusion of the preliminary hearing, appellant moved to suppress
evidence of the cocaine pursuant to section 1538.5. Defense counsel argued that the facts
as stated by appellant that the officers had illuminated appellant using their police
vehicle’s spotlight and red and blue lights and ordered him to stop constituted a seizure.
He argued that People v. Garry (2007) 156 Cal.App.4th 1100 (Garry) supported his
contention and that Officer Horii’s account of the incident was not believable. He argued
that “the most credible version of events factually” involved appellant throwing the
cocaine away while he was “lit up.” Defense counsel argued that appellant was detained
at that point and what happened after that was irrelevant.
       The prosecutor argued that appellant’s testimony that he tossed the drugs away
while the police were “lighting him up” was illogical and contrary to his desire not to be
arrested for possession of narcotics. The prosecutor argued that even if the court were to
find a show of authority, there was no basis for finding an unlawful detention because
appellant did not stop and submit to any authority until after he tossed away the bindle of
cocaine. The prosecutor distinguished Garry by clarifying that the court in that case
found that the defendant did submit to the officer’s asserted authority resulting in an
unlawful detention.

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       The magistrate denied appellant’s motion to suppress. The magistrate stated that it
seemed to him that “the officer illuminated [appellant]” and it did not make sense that
appellant “was commanded to stop before he threw the object.” The magistrate stated
that his “sense [was] that [appellant] was illuminated with headlights, with the overhead
light as well.” The magistrate found no basis for a violation of appellant’s 4th
Amendment rights because it was a lawful stop. Defense counsel asked if the court was
making a determination of how appellant was illuminated, and whether appellant turned
around and looked at the officer. The magistrate stated he was not. The magistrate
believed there was no verbal command to appellant, that he threw the cocaine when he
was illuminated, and the illumination did not “reach[] Garry.” When defense counsel
stated that illumination was a significant issue under Garry, the magistrate responded,
“I can’t tell about the lights.” The magistrate concluded by stating the police officer’s
account of the incident was more credible and that was the basis for his ruling.
       Appellant renewed the suppression motion in the trial court.3 No testimony or
evidence was presented at the hearing. Defense counsel argued that the evidence should
be suppressed based upon the magistrate’s finding at the preliminary hearing that Officer
Horii had activated his overhead lights. The trial court disagreed with that
characterization of his earlier finding and clarified that he did not believe the officers
activated their red and blue lights. The trial court repeated his previous findings that
appellant’s illumination was within the law, the officers did not do anything to show
authority, and the stop was lawful. The trial court further stated that he did not think
appellant’s version of the events was “entirely correct” but, even if it was correct the
motion should be denied pursuant to California v. Hodari D. (1991) 499 U.S. 621
(Hodari).)




3      The trial court judge had previously sat as the magistrate at the preliminary
hearing.
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                                       DISCUSSION
       Appellant’s Motion to Suppress Was Properly Denied
       Appellant contends the trial court erred in denying his motion to suppress because
he was unlawfully detained before he threw away the drugs. He argues the magistrate’s
factual findings demonstrate that appellant was detained when the police officers
activated the vehicle’s overhead lights.
       Under the applicable standard of review, we determine that the trial court did not
err in denying appellant’s motion to suppress evidence. ‘“The standard of appellate
review of a trial court’s ruling on a motion to suppress is well established. We defer to
the trial court’s factual findings, express or implied, where supported by substantial
evidence.’” (People v. Redd (2010) 48 Cal.4th 691, 719 (Redd).) “If there is conflicting
testimony, we must accept the trial court’s resolution of disputed facts and inferences, its
evaluations of credibility, and the version of events most favorable to the People, to the
extent the record supports them. [Citations.]” (People v. Zamudio (2008) 43 Cal.4th
327, 342.) ‘“In determining whether, on the facts so found, the search or seizure was
reasonable under the Fourth Amendment, we exercise our independent judgment.
[Citations.]’ [Citations.]” (Redd, supra, 48 Cal.4th at p. 719, fn. omitted.)
       Slightly altering this procedure, in cases like this one, where “a magistrate rules on
a motion to suppress . . . raised at the preliminary examination, he or she sits as the finder
of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw
inferences. In reviewing the magistrate’s ruling on a subsequent motion under Penal
Code section 995, the superior court sits as a reviewing court - it must draw every
legitimate inference in favor of the information, and cannot substitute its judgment for
that of the magistrate on issues of credibility or weight of the evidence. On review of the
superior court ruling by appeal or writ, we in effect disregard the ruling of the superior
court and directly review the determination of the magistrate. In doing so we draw all
presumptions in favor of the magistrate’s express or implied factual determinations and



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must uphold them if they are supported by substantial evidence.” (People v. Shafrir
(2010) 183 Cal.App.4th 1238, 1244-1245 [fn. omitted].)
       In arguing the initial contact was a detention, appellant relied on People v. Bailey
(1985) 176 Cal.App.3d 402 (Bailey) in the lower court and does so again on appeal. In
Bailey, an officer pulled his vehicle behind a car occupied by a single person parked in a
department store parking lot; this location was frequented by drug users. The police
vehicle’s red and blue front emergency lights, as well as amber rear lights, were activated
and the officer approached on foot. Within a few feet of the car, the officer smelled
marijuana, which caused the officer to ask for consent to search the car. The occupant
consented and the search produced contraband. The officer testified that as he
approached the car, the occupant was not free to leave. A motion to suppress the
evidence was granted by the trial court on the basis that the consent was not freely given.
(Bailey, supra, 176 Cal.App.3d at p. 404.) The majority of the appellate court affirmed,
finding the consent was involuntary because the activation of the emergency lights and
other circumstances demonstrated an exercise of official authority that vitiated against
voluntariness. (Bailey, supra, at p. 406.) Additionally, the appellate court rejected the
People’s claim that the evidence would inevitably have been discovered (presumably on
the basis that the officer’s smelling of marijuana would have justified the search as based
on probable cause and incident to lawful arrest) because it was inappropriate to raise that
argument for the first time on appeal. (Ibid.)
       The key similarity here, asserts appellant, is the activation of the overhead
emergency lights, directed at appellant, as a manifestation that he is not free to leave. But
the trial court’s factual findings which we are bound to accept highlights the significant
difference between Bailey and the present case, which is that the police officers here did
not activate their emergency overhead lights and did not engage in any conduct that
amounted to a show of authority. Officer Horii testified that appellant was illuminated by
the headlights of the police vehicle as they drove through the parking lot at approximately
12:50 a.m. Officer Horii was asked to clarify what he meant by “headlights” and if he

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and his partner intended to “illuminate” appellant. He reiterated that appellant was
illuminated only by the light from the headlights of the vehicle due to normal operation.
The magistrate found Officer Horii’s testimony to be credible.
       Appellant focuses exclusively on the magistrate’s statement that his “sense [was]
that [appellant] was illuminated with headlights, with the overhead light as well.” He
argues that for purposes of the appeal the trial judge and the magistrate are viewed as
separate judicial officers, and the trial court is bound by the factual findings of the
magistrate. Appellant’s argument although technically correct ignores one significant
fact. The judge who denied the renewed motion to suppress in the trial court sat as the
magistrate who denied the motion brought at the preliminary hearing. At the hearing in
the trial court, the judge stated that he was confused by defense counsel’s request for
clarification regarding “overhead lights” after he had issued his initial ruling, and he
“misspoke.” He clarified that he did not mean he believed that the officers had activated
their overhead lights. This clarification is consistent with his denial of the initial motion
to suppress.
       The critical issue is whether the magistrate was correct in denying appellant’s
motion to suppress. The magistrate’s factual determination that the police officers did
not use their overhead lights was supported by substantial evidence. Having heard two
witnesses recite conflicting versions of the same incident, the magistrate concluded the
police officer was credible and appellant was not. Appellant cites no authority for the
proposition that we should ignore the trial court’s clarification of his own misspoken
comments issued after the ruling, and we will not do so.
       The cases cited by the People are helpful. In People v. Perez (1989) 211
Cal.App.3d 1492 (Perez), a police officer parked his patrol vehicle in front of a car
occupied by two people. The officer left plenty of room for the car to leave. He shone
his high beams and spotlights, but not his emergency lights, “in order to get a better look
at the occupants and gauge their reactions.” (Perez, supra, 211 Cal.App.3d at p. 1494.)
The car’s occupants were “slouched over in the front seat” but did not otherwise respond

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to the lights. (Ibid.) The officer walked to the car, tapped on the driver’s side window
with a lit flashlight, and asked the defendant to roll down his window. The appellate
court found that “the conduct of the officer here did not manifest police authority to the
degree leading a reasonable person to conclude he was not free to leave. While the use of
high beams and spotlights might cause a reasonable person to feel himself the object of
official scrutiny, such directed scrutiny does not amount to a detention.” (Perez, supra, at
p. 1496.)
       In People v. Franklin (1987) 192 Cal.App.3d 935 (Franklin), a police officer
spotted the defendant, Franklin, walking down the street in an area where vandalism,
robbery and narcotics trafficking was prevalent at midnight, wearing a coat that seemed
too warm for the weather conditions. When the officer put his patrol car’s spotlight on
Franklin, Franklin tried to hide a white bundle he was carrying. The officer stopped his
car directly behind Franklin and began to use his radio, and Franklin approached the car.
The officer got out and met him in the area of the headlights. Without the officer’s
initiating any conversation, Franklin repeatedly asked, “‘What's going on?’” (Franklin,
supra, 192 Cal.App.3d at p. 938.) Rejecting Franklin’s claim that he had been detained
as a result of these actions, the appellate court observed that “the officer did not block
appellant’s way; he directed no verbal requests or commands to appellant. Further, the
officer did not alight immediately from his car and pursue appellant. Coupling the
spotlight with the officer’s parking the patrol car, appellant rightly might feel himself the
object of official scrutiny. However, such directed scrutiny does not amount to a
detention.” (Franklin, supra, at p. 940.)
       The actions of the police officers in this case were even less aggressive than those
of the officers in Perez and Franklin. The trial court’s factual finding was that officers
Horii and Ferrier did not illuminate appellant with their spotlight or their overhead red
and blue lights. They did not “block his way” or make any “verbal requests or
commands.” (Franklin, supra, 192 Cal.App.3d at p. 940.) Therefore, there was no



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detention before appellant threw away the drugs and the motion to suppress was properly
denied.
                                    DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           _____________________, J. *
                                                  FERNS
We concur:




____________________________, P. J.
      BOREN


____________________________, J.
      CHAVEZ




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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