Filed 8/26/14
                          CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO


THE PEOPLE,
                                                      E057671
        Plaintiff and Respondent,
                                                      (Super.Ct.No. RIF10006447)
v.
                                                      OPINION
RICARDO LUJANO,

        Defendant and Appellant.



        APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.

Affirmed in part; reversed in part with directions.

        Jill M. Klein, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Scott C. Taylor and Kathryn

Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

        This case raises important questions about how police should react when they

encounter someone in front of a house engaged in suspicious activity. Here, police

officers contacted and detained not only an individual in the driveway in front of a house,

whom they observed stripping copper wire from an air conditioner, but also the occupant


                                             1
of the house, suspecting that “maybe possibly” a burglary was in progress. The officers

were aware of no facts particular to the occupant of the house suggesting that he was a

burglar, rather than a resident. And they made no reasonable attempt to ascertain such

facts until after he was detained. It was later determined he was in fact a resident.

       The Fourth Amendment does not countenance warrantless intrusion by police into

a private home and detention of a resident under the circumstances of this case. The

police had no probable cause with respect to the resident of the house—who is the

defendant in this case—so suspected exigent circumstances do not justify the officers’

actions. As such, the detention was unlawful, and defendant’s motion to suppress the

fruits of that unlawful detention should have been granted.

                                    I. INTRODUCTION

       Defendant Ricardo Lujano pleaded guilty to charges of possession of

methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 3), receiving stolen

property (Penal Code,1 § 496, subd. (a); count 4), and possession of a firearm by a felon

(former § 12021, subd. (a)(1); count 5). A jury found him guilty of robbery (§ 211; count

1), and found true an enhancement for personally using a firearm during the commission

of the robbery (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8)).2 The trial court sentenced

defendant to 14 years 4 months in prison, as follows: a three year term on count 1, plus a



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

       2   A second robbery count, count 2, was dismissed prior to trial.



                                              2
consecutive 10-year term for the firearm enhancement; eight-month consecutive terms on

counts 3 and 4; and a concurrent two-year term on count 5.

       On appeal, defendant contends the trial court erred by (1) denying his motion to

suppress evidence obtained in an allegedly illegal search and seizure, (2) denying his

motion to sever the robbery charge from other charges, (3) denying his motion in limine

to allow him to present evidence and argument that third parties were responsible for the

robbery, and (4) failing to stay punishment on count 5, pursuant to section 654.

       The People concede, and we agree, punishment on count 5 should have been

stayed. Additionally, we reverse the trial court’s denial of defendant’s suppression

motion, and vacate the judgment of conviction with respect to count 1 and the firearm

enhancement.3 We affirm the judgment in all other respects.

                 II. FACTUAL AND PROCEDURAL BACKGROUND

       On the night of December 19, 2010, a liquor store in Riverside was robbed by two

men wearing black hooded sweatshirts, gloves, and masks, one of whom was brandishing

a handgun. The store was equipped with multiple surveillance cameras, which captured

the robbery from various angles. One of the men—the one brandishing the firearm—

appeared to be about six feet tall and to weigh about 300 pounds, while the second man

was shorter (5 feet 8 inches, or 5 feet 9 inches tall) and thinner. From the surveillance

video, police officers later identified the gun used in the robbery, which was never


       3  We therefore need not and do not address defendant’s appeal of the denial of his
motion to sever or the trial court’s ruling on his motion in limine regarding evidence of
third party culpability.


                                             3
recovered, as a .38-caliber or .357 hammerless revolver. During the robbery, the two

victims of the robbery—the store manager, and a friend who was at the store—were both

sprayed in the face with pepper spray. Neither victim was able to identify either of the

robbers.

       On the afternoon of December 28, 2010, two Riverside police officers on patrol,

Henry Park and Bryan Galbreath, observed a man in the driveway in front of a house

stripping copper wire from an air conditioning unit that may have come from the

residence.4 The officers approached and spoke with the man, Albert Vargas, who said he

was there visiting a friend named “Rick.” Though Vargas did not know his last name,

“Rick” was eventually identified as defendant. Vargas also admitted to being on

probation “for narcotics.” He explained he was stripping copper wire from the air

conditioner because it no longer worked.

       A side door that led from the driveway into the house was ajar—partially open,

but not enough to walk through. Officer Galbreath approached the door and leaned

inside, identifying himself as a police officer and commanding anyone in the house to

come to the door.5 Defendant responded, coming out from the bedroom area of the house


       4 Officer Galbreath testified the air conditioning unit “appeared to have been
taken from the residence,” but nothing in our record suggests this testimony was based on
any specific facts observed, rather than just the officer’s suspicions as to what Vargas
might have been doing. The court did not find that the air conditioner did in fact come
from the house, but only that it “may be from the house.”

       5 On cross-examination, Officer Park testified that Officer Galbreath went inside
the house. This description of events is in some tension with Officer Galbreath’s own
testimony, that he remained in the threshold, “partially out, partially in,” as he called for
                                                                   [footnote continued on next page]


                                              4
into Officer Galbreath’s view, and then following Officer Galbreath’s instructions to turn

around and walk backwards out of the door, onto a concrete step. At that point, Officer

Galbreath did not handcuff defendant, but took physical control of him (“had hands on

him”) and required defendant to keep his hands clasped behind his back. Officer

Galbreath asked defendant for consent to search his person; defendant gave his consent.

The search revealed a plastic bag of methamphetamine in defendant’s pants pocket, at

which point he was arrested.

        Thereafter, defendant consented to a search of the residence, as did the owner of

the home—who was, indeed, Vargas’s mother—who was called to the location by police.

The search of the residence revealed a nine-millimeter semiautomatic handgun (not the

weapon used in the robbery), as well as a speed loader for a .38-caliber revolver. Police

also recovered, as relevant here, a pair of shoes, three pairs of work gloves, two black

hooded sweatshirts—one sized 2XL, the other 3XL—and two cans of pepper spray, one

empty and one full. All of these items, with the exception of the smaller of the two

sweatshirts, were found in defendant’s bedroom.

        One of the police officers involved in the search of defendant’s home, Officer

Jeffrey Adcox, had also participated in the investigation of the December 19th robbery,

and had reviewed the surveillance video. Officer Adcox noted that defendant appeared to

be about the same height and weight as the larger armed robber on the surveillance video.


[footnote continued from previous page]

anyone inside to come out. This conflict in the evidence, however, is not dispositive of
any issue in this appeal.


                                             5
The officer also opined, based on further review of the surveillance video, that the shoes

recovered in the search matched those worn by one of the robbery suspects, as did the

gloves, pepper spray bottle, and black hooded sweatshirt. At the suggestion of Officer

Adcox, Officer Park also reviewed the surveillance video, and reached similar

conclusions regarding matches between items recovered and items viewed in the

surveillance video, as well as noting the similarity in height, build, and facial hair

between defendant and the larger of the two robbers.

       Defendant moved to suppress all items recovered by police on December 28,

2010. After a June 27, 2012, hearing, the trial court denied the motion. Prior to trial, on

October 23, 2012, defendant pleaded guilty to counts 3 through 5. The jury returned its

verdicts with respect to count 1 and the firearm enhancement on October 26, 2012. The

trial court imposed sentence on November 30, 2012.6

                                     III. DISCUSSION

A. The Trial Court Erred by Denying Defendant’s Motion to Suppress, Requiring

Reversal of the Judgment with Respect to Count One and Its Enhancement.

       The trial court denied defendant’s motion to suppress all items recovered during

the search of his residence, rejecting defendant’s arguments that they were the product of

an unlawful search and seizure. Defendant contends the trial court erred by denying the

motion to suppress, and that the error requires reversal of the judgment of guilt as to all

counts, including those to which he pleaded guilty. We find the motion to suppress

       6    Additional facts are provided below as necessary to address defendant’s claims
of error.


                                              6
should have been granted, but this finding requires reversal only of defendant’s

conviction for robbery and the firearm enhancement, because he waived his right to

appeal the remaining charges as part of his plea bargain, and he failed to obtain a

certificate of probable cause.

       1. Standard of Review and Background Fourth Amendment Standards.

       “Federal constitutional standards generally govern our review of claims that

evidence is inadmissible because it was obtained during an unlawful search.” (People v.

Willis (2002) 28 Cal.4th 22, 29.) “We defer to the trial court’s factual findings where

supported by substantial evidence, but we must exercise our independent judgment to

determine whether, on the facts found, the search and seizure was reasonable under the

Fourth Amendment standards of reasonableness.” (People v. Avila (1997) 58

Cal.App.4th 1069, 1073-1074 (Avila) [Fourth Dist., Div. Two].) “On appeal, a correct

decision must be affirmed even if the trial court based its ruling on an erroneous reason.”

(People v. Avalos (1996) 47 Cal.App.4th 1569, 1580.)

       “‘[T]he “physical entry of the home is the chief evil against which the wording of

the Fourth Amendment is directed.’”” (People v. Camacho (2000) 23 Cal.4th 824, 831.)

“[W]arrentless arrests within the home are proscribed unless exigent circumstances

exist.” (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1132 [citing People v. Ramey

(1976) 16 Cal.3d 263, 276].) The same proscription limiting warrantless arrests in the

home has been extended to detentions that fall short of formal arrests. (People v.

Williams (1979) 93 Cal.App.3d 40, 57, disapproved on other grounds by Coito v.

Superior Court (2012) 54 Cal.4th 480.) Thus, the exception to the warrant requirement


                                             7
for investigative detentions for the purpose of investigating possible criminal activity,

approved in Terry v. Ohio (1968) 392 U.S. 1, “does not apply to in-home searches and

seizures.” (U.S. v. Struckman (9th Cir. 2010) 603 F.3d 731, 738 (Struckman).)

       A warrantless arrest in a public place does not violate the Fourth Amendment so

long as the police have probable cause. (United States v. Santana (1976) 427 U.S. 38,

42.) But to fall within the exigent circumstances exception to the warrant requirement, an

arrest or detention within a home or dwelling must be supported by both probable cause

and the existence of exigent circumstances. (Struckman, supra, 603 F.3d at p. 739.) A

burglary in progress may constitute an “exigent circumstance,” as that phrase is used in

Fourth Amendment jurisprudence. (See People v. Duncan (1986) 42 Cal.3d 91, 97-98

(Duncan).) “Probable cause exists when the facts known to the arresting officer would

persuade someone of ‘reasonable caution’ that the person arrested has committed a crime.

[Citation.] ‘[P]robable cause is a fluid concept—turning on the assessment of

probabilities in particular factual contexts . . . .’ [Citation.] It is incapable of precise

definition. [Citation.] ‘“The substance of all the definitions of probable cause is a

reasonable ground for belief of guilt,”’ and that belief must be ‘particularized with

respect to the person to be . . . seized.’” (People v. Celis (2004) 33 Cal.4th 667, 673

(Celis).)

       “‘[I]n determining whether the officer acted reasonably, due weight must be given

not to his unparticularized suspicions or “hunches,” but to the reasonable inferences

which he is entitled to draw from the facts in the light of his experience; in other words,

he must be able to point to specific and articulable facts from which he concluded that his


                                                8
action was necessary.’” (Duncan, supra, 42 Cal.3d at pp. 97-98.) The standard to be

applied is an objective one: “An action is ‘reasonable’ under the Fourth Amendment,

regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed

objectively, justify [the] action.’” (Brigham City v. Stuart (2006) 547 U.S. 398, 404

(italics omitted).)

       2. Initial Contact in Driveway with Vargas Did Not Violate the Fourth

Amendment.

       Defendant’s arguments to the contrary notwithstanding, we find nothing

unreasonable in the conduct of Officers Park and Galbreath during their initial contact

with Vargas. Defendant’s residence, including the driveway leading up to the front of the

house, is surrounded by a low chain-link fence. He argues that the driveway constitutes

“curtilage” subject to Fourth Amendment protections. Even assuming this to be so,7

however, the officers were entitled to enter onto the driveway without a warrant to

attempt to initiate a consensual conversation with Vargas, in addition to approaching the

house to speak with any occupants. (See U.S. v. Perea-Rey (9th Cir. 2012) 680 F.3d

1179, 1188 [constitutionality of police incursion into curtilage depends on “whether the

officer’s actions are consistent with an attempt to initiate consensual contact with the

occupants of the home”].) To make contact with Vargas, the officers entered the

driveway, passing through two gates that were either open or unlocked. In doing so, the

officers exercised no more than “the same license to intrude as a reasonably respectful

       7  The People contend otherwise, asserting that the driveway area was not
sufficiently private to be part of the home’s curtilage.


                                             9
citizen”—any door-to-door salesman would reasonably have taken the same approach the

house. (See People v. Thompson (1990) 221 Cal.App.3d 923, 943.) Moreover, “[i]f in

the course of his proper duties as a police officer, that officer is required to make an

investigation at a private home, it would seem an unreasonable deterrent to the public’s

interest in that investigation, that it can be precluded by the mere existence of an

unlocked gate.” (Vickery v. Superior Court (1970) 10 Cal.App.3d 110, 119.)

       Additionally, the officers were aware of sufficient particularized facts to

reasonably believe Vargas was engaged in criminal activity. Officers Park and Galbreath

observed from their patrol car that someone (later determined to be Vargas) was in the

driveway, apparently stripping copper wire from an air conditioner. To be sure, an

individual stripping copper wire from an air conditioner in front of a residence is not

necessarily engaged in criminal activity. But it is hardly an unreasonable inference that

such a person might well be, and in light of their experience, it is an inference the officers

were entitled to make pending further investigation. Officers Park and Galbreath were

justified in entering the driveway of defendant’s home—even assuming it constitutes

“curtilage”—to speak to Vargas and confirm or dispel their reasonable suspicion Vargas

may have been engaged in criminal activity.

       It should be noted, however, that nothing in our record indicates police ever had

probable cause Vargas was engaged in burglary, as Officer Galbreath testified he

suspected. The elements of burglary include entry into a building, along with the intent

to commit a felony or theft. (Magness v. Superior Court (2012) 54 Cal.4th 270, 273;

§ 459.) Nothing in our record establishes that police had cause to believe Vargas ever


                                             10
entered the house. Even assuming the air conditioner was stolen from the house—an

assumption for which there is no evidence in our record—it may or may not have

required entry into the building to remove the air conditioner to the driveway, where

Vargas was discovered stripping it of copper wire. Nevertheless, with respect to Vargas,

the officers—particularly once they determined he did not live at the residence—had

probable cause to believe Vargas may have been engaged in some sort of illegal activity,

including theft and trespassing.

       In short, the officers did not violate the Fourth Amendment when they entered

defendant’s driveway to contact Vargas. Defendant’s contentions in that regard are

without merit.

       3. Warrantless Detention of Defendant Inside His Home, Absent Probable Cause,

Violated the Fourth Amendment.

       Officer Galbreath’s detention of defendant is more problematic than the officers’

initial contact with Vargas. As discussed above, the officers were aware of specific,

articulable facts about Vargas that led them reasonably to believe he might be engaged in

theft and trespassing. In contrast, when police first contacted defendant, Officer

Galbreath was aware of no specific, articulable facts particular to defendant suggesting

that he might be involved in criminal activity. To the contrary, Officer Galbreath had

reason to believe from his conversation with Vargas that a resident of the house named

“Rick” might be inside—that is, someone who belonged in the house, and who if

anything could well be a victim of theft by Vargas, rather than a fellow thief. Officer

Galbreath never observed defendant doing anything suspicious, say, rifling through


                                            11
drawers. There is no evidence defendant acted aggressively or menacingly toward

Officer Galbreath, or tried to flee. Rather, defendant made his presence known when

commanded to do so, and obeyed all police instructions after that point.

       Neither did officers’ observations outside the house prior to making contact with

defendant yield any facts from which they could have reasonably concluded a burglar

was likely inside. As noted, when the officers talked with Vargas, he explained he was

visiting a resident named Rick. The officers may not have believed him, but “the

explanation was not patently inconsistent, false, or inherently implausible. As such, it did

not furnish a reasonable basis for suspecting criminal activity” with respect to Vargas, let

alone defendant. (People v. Loewen (1983) 35 Cal.3d 117, 125.) The officers observed a

door was ajar, but there were no signs, for example, of forced entry. (Cf. Duncan, supra,

42 Cal.3d at p. 98 [presence of a television and other property beneath an open window

reasonably suggested burglars might still be in the house, “‘collecting more loot’”].) A

partially open door by itself is not probable cause justifying warrantless search or seizure

in a residence, and nothing in our record suggests Officer Galbreath was aware of any

additional facts tending to suggest either a burglary in progress, or the presence of the

victim of a burglary in need of emergency care. (See Murdock v. Stout (9th Cir. 1995) 54

F.3d 1437, 1441 [officers did not have probable cause to enter a house based merely on

neighbor’s report of suspicious activity and an open door, but did have probable cause

based on other signs a resident should have been home, but might have been in danger or

injured], abrogated on other grounds as recognized in LaLonde v. County of Riverside

(9th Cir. 2000) 204 F.3d 947, 957.)


                                             12
       The Ninth Circuit’s opinion in Struckman, supra, 603 F.3d at p. 731, is instructive.

In that case, police received a call from a neighbor that owners of a house were at work

and a White male wearing a black jacket had thrown a red backpack over the fence and

climbed into the backyard. (Id. at p. 736.) Police arrived, looked over a fence into the

backyard, and observed someone fitting the description. (Ibid.) Officers “straightaway”

drew weapons, ordered the man to his knees, and burst into the backyard, with one officer

climbing the fence and another kicking open a padlocked gate, suspecting the man to be a

burglar. (Ibid.) Police ignored his protestations that he lived at the house, he was

detained, and he and his backpack were searched, revealing a gun, several unloaded

handgun magazines, methamphetamine, and a “‘digital gram scale.’” (Id. at pp. 737, 740,

fn.7.) Only later, after the warrantless search and seizure at gunpoint, did police ask the

man his name, at which point police were readily able to verify that the man was indeed

in his own backyard. (Id. at p. 737.) He was later charged and found guilty of being a

felon in possession of a firearm. (Ibid.)

       The Ninth Circuit panel in Struckman doubted, but was willing to assume for

purposes of argument, that the police were aware of just enough specific facts to amount

to probable cause to believe the defendant was trespassing (though no probable cause to

believe he was a burglar). (Struckman, supra, 603 F.3d at pp. 741, 746.) It found,

however, that the probable cause “could easily have been dissipated by minimal inquiry

at the outset, before the officers entered the backyard and searched and questioned [the

defendant].” (Id. at p. 746.) On that basis, the warrantless seizure of the defendant in his

own backyard was found to violate the Fourth Amendment, the denial of his suppression


                                             13
motion was reversed, and the judgment of the conviction was vacated. (Struckman,

supra, at p. 747.)

       Here, as in Struckman, the police could have asked defendant “a few simple

questions, such as ‘What’s your name?’‘Do you live here?’” (Struckman, supra, 603

F.3d at p. 742.) They did not. Put another way: Nothing in the record suggests that it

was reasonably necessary for Officer Galbreath to do what he did—immediately detain

everyone on the premises, and sort things out later—rather than engaging in even the

most minimal inquiry as to defendant’s identity, or verifying Vargas’s story, before

intruding into the house and detaining defendant. (See Duncan, supra, 42 Cal.3d at pp.

97-98.)

       Moreover, perhaps unlike in Struckman, the facts here do not establish that Officer

Galbreath had probable cause to believe defendant was committing any crime. There is

nothing in the record establishing that Officer Galbreath, at the time he detained

defendant, was aware of facts particular to defendant sufficient to “persuade someone of

‘reasonable caution’” that defendant had “committed a crime”—nothing to support the

belief defendant even was trespassing, let alone committing burglary. (Celis, supra, 33

Cal.4th at p. 673.) Officer Galbreath did not have a report from a neighbor identifying a

man fitting a certain description was his suspect.8 (Cf. Struckman, supra, 603 F.3d at p.



       8 Police later discovered that defendant’s identification showed an old address,
and therefore did not establish he lived at the address where he was arrested. This fact
might have established probable cause to believe defendant was not authorized to be in
the house, had police known of it prior to detaining him—at least until he could furnish
                                                                 [footnote continued on next page]


                                            14
736.) To the contrary, the only information Officer Galbreath had was that, according to

Vargas, a person named “Rick” lived at the residence. But he failed to check whether

defendant fit that minimal description before detaining him. We conclude that

defendant’s warrantless detention inside his residence lacked probable cause, and

therefore violated Fourth Amendment.

        The People’s attempt to justify Officer Galbreath’s actions turns on the notion that

defendant was detained outside the home, arguing that Officer Galbreath “at most . . .

briefly leaned in through the open doorway in order to call out for anyone inside to come

out.” This approach is apparently intended to avoid the limitations, discussed above, on

warrantless arrests or detentions within a private home or its curtilage. But it is not an

approach that is consistent with the law, as applied to the evidence in our record. “[I]t is

the location of the arrested person, and not the arresting agents, that determines whether

an arrest occurs within a home.” (U.S. v. Johnson (9th Cir. 1980) 626 F.2d 753, 757.) At

least as soon as Officer Galbreath ordered defendant to turn around and walk backwards

towards him, suspecting defendant might be a burglar, defendant was detained. (See In

re Tony C. (1978) 21 Cal.3d 888, 895 [“If [an] individual is stopped or detained because

the officer suspects he may be personally involved in some criminal activity, his Fourth

Amendment rights are implicated . . . .”].) The record is unambiguous: Defendant was

inside his house when he was detained, and therefore entitled to the full panoply of


[footnote continued from previous page]

some other proof of residency, for example, by calling the landlord (Vargas’s mother) as
police later did in seeking her consent to search the residence.


                                             15
Fourth Amendment rights accorded to an individual in his or her residence or its

curtilage. (See Struckman, supra, 603 F.3d at p. 738.)

       The trial court found that the searches of defendant’s person and of the house were

consensual, colorfully commenting “They’ve got consent up the ying-yang here.” This

reasoning, however, focuses exclusively on the searches that followed defendant’s

detention, not on the detention itself. If Officer Galbreath had invited defendant to step

outside of his home to talk, and defendant did so voluntarily, then any detention would be

treated as if it occurred outside the home, and our analysis would be quite different. (See

People v. Tillery (1979) 99 Cal.App.3d 975, 979-980 [where defendant voluntarily

stepped outside of home to talk at invitation of police officer, subsequent warrantless

arrest in driveway outside the home not treated as in-home arrest].) But that is not what

happened. Officer Galbreath did not knock and politely invite any occupant of the house

to engage in a consensual conversation; he ordered anyone inside to come out, and then

commanded defendant to back his way out of the house. Defendant did not consent to

this warrantless intrusion into his home.

       In short, we do not doubt that the responding officers had a good faith suspicion

defendant was engaged in criminal activity. That suspicion, however, was not supported

by objective facts rising to the level of probable cause, as required to justify the

warrantless detention of the resident inside a dwelling. As such, defendant’s detention

was in violation of his Fourth Amendment rights.




                                              16
       4. Defendant’s Motion to Suppress Should Have Been Granted.

       If consent is induced by an illegal arrest or detention, the illegality vitiates the

consent and may require suppression of seized evidence unless attenuating circumstances

dissipate the taint. (People v. Leib (1976) 16 Cal.3d 869, 877.) “[T]he general

framework for analyzing a claim of attenuation under the Fourth Amendment is well

settled. [Citation.] ‘[T]he question before the court is whether the chain of causation

proceeding from the unlawful conduct has become so attenuated or has been interrupted

by some intervening circumstance so as to remove the “taint” imposed upon that

evidence by the original illegality.’ [Citation.] ‘Relevant factors in this “attenuation”

analysis include the temporal proximity of the Fourth Amendment violation to the

procurement of the challenged evidence, the presence of intervening circumstances, and

the flagrancy of the official misconduct.’” (People v. Brendlin (2008) 45 Cal.4th 262,

268-269.)

       Here, however, the Attorney General has made no claim of attenuation, asserting

no argument that, even if the detention was unlawful, the chain of causation from the

unlawful conduct was somehow broken. Neither does our review of the record reveal

evidence of any sufficient attenuating factors to remove the taint of defendant’s unlawful

detention from the evidence recovered by the police from his person and his residence.

Defendant’s consents to search were obtained immediately after the unlawful conduct,

with no sufficient intervening events. Even if the police misconduct here was arguably

not particularly flagrant, so far as unlawful warrantless seizures go—at least it was

apparently motivated by good faith intent to interrupt illegal activity, though those


                                              17
suspicions were not supported by probable cause—neither was the misconduct de

minimis.

       The circumstance that the owner of the home, Vargas’s mother, consented to

search of the house also does not cure the taint of defendant’s unlawful detention or

otherwise justify the search of the premises. “[T]he owners of a property may consent to

a police search thereof as long as no other persons are legitimately occupying that

property. [Citation.] . . . . [¶] But a landlord may not give valid third-party consent to a

police search of a house rented to another.” (People v. Superior Court (Walker) (2006)

143 Cal.App.4th 1183, 1200.) Virtually all of the evidence recovered by police was

found in the portion of the house rented by defendant. As such, Vargas’s mother could

not give valid consent for the search that revealed the evidence at issue.

       We conclude that all the evidence seized by police from defendant’s person and

from his home was the fruit of an unlawful detention, and the taint of the violation of

defendant’s Fourth Amendment rights was not dissipated by any attenuating

circumstances. The motion to suppress should have been granted.

       5. Defendant Waived His Right to Appeal with Respect to Counts 3 Through 5,

and Failed to Obtain a Certificate of Probable Cause.

       There is no doubt the evidence obtained as a result of defendant’s warrantless

actions was critical to his conviction at trial on the robbery charge (count 1) and the

firearm enhancement. The Attorney General has not contended that any error in denying

defendant’s motion to suppress was harmless. The judgment of conviction with respect

to those charges, therefore, must be vacated.


                                             18
       Defendant contends that the judgment should also be vacated with respect to

counts 3 through 5, to which he pleaded guilty. He notes that section 1538.5, subdivision

(m), provides that “a defendant may seek further review of the validity of a search or

seizure on appeal from a conviction in a criminal case notwithstanding the fact that the

judgment of conviction is predicated upon a plea of guilty.”

       Defendant’s argument is foreclosed, however, by the circumstance that his plea

agreement included a waiver of his right to appeal, and he failed to obtain a certificate of

probable cause. People v. Mashburn (2013) 222 Cal.App.4th 937 (Mashburn) held that a

defendant whose plea agreement includes a waiver of the right to appeal must obtain a

certificate of probable cause to appeal a trial court’s denial of a motion to suppress,

notwithstanding section 1538.5, subdivision (m). (Mashburn, supra, at p. 940.)

Defendant contends that Mashburn was wrongly decided, and urges us not to follow it.

“We, of course, are not bound by the decision of a sister Court of Appeal. [Citation.]

But ‘[w]e respect stare decisis, however, which serves the important goals of stability in

the law and predictability of decision. Thus, we ordinarily follow the decisions of other

districts without good reason to disagree.’” (The MEGA Life & Health Ins. Co. v.

Superior Court (2009) 172 Cal.App.4th 1522, 1529 [Fourth Dist., Div. Two].) In this

case, we find no sufficient reason to depart from the holding in Mashburn, which

considered and rejected virtually the same arguments as defendant makes here—to the

contrary, we agree with the Mashburn court’s reasoning and conclusions.




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B. The Sentence on Count 5 Should Be Stayed Under Section 654.

       The stolen property that defendant admitted to receiving by pleading guilty to

count 4 is the handgun, recovered in the search of defendant’s residence, that also serves

as the basis for count 5, possession of a firearm by a felon. Defendant argues that the

court should have stayed the sentence on count 5 pursuant to section 654, because both

counts 4 and 5 are based on “the same physical act of possessing the same firearm.” The

People concede, and we agree, the court should have stayed the sentence on count 5.

       Section 654 provides in pertinent part: “An act or omission that is punishable in

different ways by different provisions of law shall be punished under the provision that

provides for the longest potential term of imprisonment, but in no case shall the act or

omission be punished under more than one provision.” (§ 654, subd. (a).) “The purpose

of this statute is to prevent multiple punishment for a single act or omission, even though

that act or omission violates more than one statute and thus constitutes more than one

crime.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)

       There is some authority for the proposition that section 654 does not necessarily

preclude punishment for both receiving a firearm as stolen property and unlawfully

possessing that firearm, on the theory that as to each offense the defendant may have had

a “separate and distinguishable mens rea.” (People v. Taylor (1969) 2 Cal.App.3d 979,

985-986.) But defendant argues such reasoning is incompatible with the Supreme

Court’s decision in People v. Jones (2012) 54 Cal.4th 350, 358 (Jones), holding that

“section 654 prohibits multiple punishment for a single physical act that violates different

provisions of law.”


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       We need not decide whether Taylor and similar cases have any continuing vitality

after Jones. The trial court stated when taking defendant’s plea that it was inclined to

apply section 654, because they involved the same firearm, and acknowledged during

sentencing that counts 4 and 5 related to “essentially . . . one [and] the same act.” We

agree with the People that the trial court implicitly found defendant harbored only a

single intent, so the reasoning of Taylor could not apply. The sentence on count 5,

therefore, should have been stayed, rather than imposed as a concurrent sentence. (Jones,

supra, 54 Cal.4th at p. 353.)

                                      IV. DISPOSITION

       The trial court’s denial of defendant’s motion to suppress is reversed, and the

judgment vacated with respect to count 1 and the firearm enhancement of count 1.

Additionally, the judgment is modified such that the sentence on count 5 shall be stayed

pursuant to section 654. The judgment is affirmed in all other respects.

       CERTIFIED FOR PUBLICATION


                                                                HOLLENHORST
                                                                         Acting P. J.
We concur:

       MCKINSTER
                                 J.

       CODRINGTON
                                 J.




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