Filed 12/15/15 P. v. Agamau CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A143849
v.
DUANE ALLEN AGAMAU,                                                      (Contra Costa County
                                                                          Super. Ct. No. 51408673)
         Defendant and Appellant.


         This is an appeal from judgment after a jury convicted appellant Duane Allen
Agamau of second degree burglary. Appellant contends that the trial court erred in
denying his pre-trial motion to suppress evidence pursuant to Penal Code section 1538.5
based on the lack of both reasonable suspicion to detain him and probable cause to arrest
him. Appellant further argues that his attorney provided ineffective assistance by failing
to renew his suppression motion at trial. We affirm.

                        FACTUAL AND PROCEDURAL BACKGROUND
         On April 22, 2014, an information was filed charging appellant with second
degree burglary of an uninhabited house (Pen. Code, §§ 459/460, subd. (b)).1 The
information further alleged appellant had served two prior prison terms within the
meaning of section 667.5, subdivision (b). A preliminary hearing was held on April 16,
2014, at which the following evidence was presented. Just before 11:00 p.m. on July 29,
2013, two residents of a housing development in the City of Oakley separately reported

1
         Unless otherwise stated, all statutory citations herein are to the Penal Code.


                                                             1
to police observing suspicious activity near a construction site at 515 Peyton Court. One
of the residents, Heather Cloud, reported that a man was dumping items from a “smaller
single-cab truck” into a dumpster and walking in the vicinity of a house still under
construction on Peyton Court. The suspect, who Cloud believed may have been African
American, placed a large ladder and other items into his truck before driving off.
       The second resident, Zachary Hurst, called the police department’s non-
emergency line to report seeing from his window a man dressed in a football jacket and
pants enter the partially-constructed house at 515 Peyton Court. According to Hurst, the
suspect had first tried to enter the house through a sliding glass window, but after finding
the window locked, he eventually gained entry through the garage side door. Hurst then
saw this man, who he described as darker in complexion, take a large, 20-foot ladder and
some woodwork trim, which he loaded into a full-sized truck that was likely
manufactured in the 1980s. Hurst initially thought this man may have been a
construction worker who had returned to the site to collect some belongings. However,
Hurst thought it was suspicious that the man would be taking items so late at night,
prompting his non-emergency call to police.
       After calling the police, Hurst continued to observe this man as he drove off with
the items in the back of his truck. However, rather than leaving the area, the man stopped
in front of Hurst’s house and walked over to the house of Hurst’s neighbor, Justin. The
man then began taking the solar-powered lights illuminating Justin’s yard. Realizing this
man was a stranger, Hurst yelled out. The man, fumbling, dropped some of the lights
before picking them back up and retreating to his truck. The man then sped away,
“burn[ing] out” around the corners as he left. Less than a minute later (and about 15
minutes after he first called the police), Hurst heard sirens in the area. Hurst continued to
hear the sound of the man’s truck “burn[] out” around corners until, eventually, “sirens
stopped the truck.”
       In fact, several officers had responded to the area in light of Cloud’s and Hurst’s
reports of suspicious activity. One such officer, Officer Brian Foreman, testified that, as
he pulled his marked police vehicle onto East Summer Lake Drive, he heard from Officer


                                              2
Canady, who had also been dispatched to the area, that a vehicle matching the police
report was heading towards him (to wit, a later-model, regular-cab pickup truck, possibly
Toyota or Nissan). Officer Foreman thus activated his overhead lights and pulled his
vehicle toward the center lane to attempt a roadblock. The officers saw just one non-
police vehicle on the road – to wit, a dark-colored, single-cab smaller Chevy pickup truck
with unidentified items in the back. However, rather than stopping at Officer Foreman’s
roadblock, this truck, driven by appellant, pulled off the road onto the shoulder and
continued down the road. In response, three officers (Foreman, Canady and Griggs)
activated their overhead lights and sirens and began pursuing appellant. The pickup went
about a quarter mile up the road at a speed of about 35 miles per hour before pulling over.
Weapons drawn, the officers approached the vehicle and called appellant out. The
officers then conducted a quick search for weapons, handcuffed appellant and placed him
in a police vehicle.
       When asked about the items in the back of the truck (which included a ladder,
still-illuminated solar lights, jumper cables, mortar and cabinet molding), appellant said
he had borrowed the truck from a friend and that the items were already in the truck at the
time. He could not explain the presence of the still-illuminated garden lights. Appellant
then was taken to the station and his pickup truck, with the items inside, was towed from
the scene. About 45 minutes later, the truck was taken to Hurst’s residence for
identification. Hurst immediately confirmed it was the truck he had seen in front of his
house. Hurst also confirmed that the illuminated solar landscaping lights inside the truck
belonged to his neighbor.
       The project manager of Summer Lake Development, Mitch Holley, was later
interviewed by police. Holley confirmed the property found in appellant’s possession
was taken without permission from 515 Peyton Court on July 29, 2013. Holley estimated
this property, which belonged to his company, was worth about $400.
       Following the preliminary hearing, defense counsel made a motion to suppress the
evidence seized as a result of appellant’s detention and arrest (including the items seized
from the vehicle he was driving). Defense counsel argued there was neither reasonable


                                             3
suspicion to detain appellant nor probable cause to arrest him given the inconsistencies in
the information provided to police regarding the suspect’s physical characteristics and the
make, model and size of his vehicle.
       After hearing from the prosecution, the trial court denied appellant’s motion to
suppress. The trial court reasoned that, although some contradictory information was
given to police, several facts rendered the officers’ actions reasonable under the
circumstances, including the facts that there were no other vehicles besides appellant’s
pickup truck in the area when the officers arrived just minutes after dispatch; appellant’s
vehicle reasonably matched the descriptions provided of a suspect driving a smaller-sized
pickup truck; and appellant took evasive action and failed to yield to police at the
roadblock, suggesting his intent to flee.
       The case against appellant thus proceeded to trial, after which the jury found him
guilty of second degree burglary and the trial court found true the two prison prior
allegations, one of which the court struck pursuant to section 1385. On December 19,
2014, the trial court then sentenced appellant to a total prison term of 28 months. This
timely appeal followed.2

                                       DISCUSSION
       On appeal, appellant reasserts his arguments from the preliminary hearing that his
detention and arrest were unlawful and, thus, that the evidence seized by police incident
to his detention and arrest is subject to exclusion. (See, e.g., People v. Banks (1993) 6
Cal.4th 926, 934 [“ ‘The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated . . . .’ (U.S.
Const., Amend. IV.) State and local law enforcement officials are subject to the
requirements of the Fourth Amendment based upon the operation of the due process
clause of the Fourteenth Amendment to the United States Constitution”].)


2
       Because appellant has challenged on appeal only the trial court’s denial of his pre-
trial motion to suppress evidence, we limit our recitation of the facts to the evidence
presented at the preliminary hearing.


                                              4
I.     Reasonable Suspicion to Detain Appellant.
       Appellant first contends the police lacked reasonable suspicion to detain him
because he and his vehicle did not match information initially reported to police by
witnesses Cloud and Hurst. Appellant reasons that, because the totality of circumstances
failed to give rise to reasonable suspicion, his detention went afoul of the constitutional
prohibition against unreasonable search and seizure and deprived him of a fair trial. (See
U.S. Const., 4th and 14th Amends.; Cal. Const., art. 1, § 13.)3
       The applicable law is not in dispute. “[T]he temporary detention of a person for
the purpose of investigating possible criminal activity may, because it is less intrusive
than an arrest, be based on ‘some objective manifestation’ that criminal activity is afoot
and that the person to be stopped is engaged in that activity. (United States v. Cortez
(1981) 449 U.S. 411, 417 & fn. 2 . . . ; see also In re Tony C. (1978) 21 Cal.3d 888, 893
. . . [in which this court articulated a two-part test: (1) that some activity relating to crime
has taken place, is occurring, or is about to occur; and (2) that the person to be detained is
involved in that activity].)” (People v. Souza (1994) 9 Cal.4th 224, 230.) Thus, as
reflected in the controlling case law, “detention is reasonable under the Fourth
Amendment when the detaining officer can point to specific articulable facts that,
considered in light of the totality of the circumstances, provide some objective
manifestation that the person detained may be involved in criminal activity.” (People v.
Souza, supra, 9 Cal.4th at p. 231.)4


3
        As the People note, appellant purports to challenge the court’s ruling as a violation
of his right to a fair trial under the Fifth Amendment. However, appellant fails to provide
a reasoned argument to support this contention. As such, appellant has forfeited the right
to appellate review on this ground. (Cal. Rules of Court, rule 8.204(a)(1)(B).)
4
        Our high court has also made clear that “reasonable suspicion” to detain requires a
lesser showing than “probable cause” to arrest (an issue to which we will turn in Section
II of this opinion). Not only can “reasonable suspicion . . . be established with
information that is different in quantity or content than that required to establish probable
cause, but also . . . reasonable suspicion can arise from information that is less reliable
than that required to show probable cause.” (People v. Souza, supra, 9 Cal.4th at
pp. 230-231, quoting Alabama v. White (1990) 496 U.S. 325, 330.)


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       In this case, as appellant notes, the evidence at the preliminary hearing was
conflicting with respect to the suspect’s physical characteristics and the make, model and
size of his vehicle. Cloud reported seeing a black male driving a smaller, single-cab
pickup truck. Hurst, in turn, described a darker-skinned man driving an older, full-size
1980s pickup truck, either a Ford or Chevy, with a loud exhaust. In actuality, appellant is
a white male who was driving a smaller model Chevy pickup truck. In addition,
appellant notes he was driving just 35 miles per hour when pulled over by police, a speed
not indicating evasiveness or flight. According to appellant, the totality of these
circumstances precludes a finding of reasonable suspicion that he had committed a crime.
       We disagree with this contention. Indeed, appellant’s reading of the evidence
disregards the governing standard of review, which requires us to defer to the trial court’s
findings of fact so long as they are supported by substantial evidence. (People v. Letner
and Tobin (2010) 50 Cal.4th 99, 145.) In other words, we must defer to the trial court’s
weighing of evidence, resolution of conflicts in evidence and credibility assessments. We
must also view the relevant facts in the light most favorable to the trial court’s ruling,
resolving all conflicts in its favor. (People v. Jenkins (2000) 22 Cal.4th 900, 969.)
Meanwhile, we independently review only the trial court’s application of the law to these
facts. (Ibid.) If correct on any relevant theory, the trial court’s ruling stands. (Ibid.)
       Thus, returning to the relevant record, and viewing the evidence in proper context
and proper light, we are left with the following summary. Two individuals called the
police at about 11:00 p.m. to report that a black or darker-skinned male with a “smaller”
or “full-sized,” “single-cab” or “regular-cab,” later-model pickup truck had taken items,
including a large ladder, from a residential construction site. This man placed these items
in the bed of his pickup truck, drove off, but then stopped again in front of Hurst’s house,
at which time he began taking illuminated solar-powered lights from Hurst’s neighbor’s
yard. Then, when Hurst yelled at the man, he sped away, “burning” around the corners as
he went.
        Less than a minute later (and about six minutes after the police were dispatched),
Hurst heard sirens. The responding officers almost immediately saw one vehicle in the


                                               6
area — to wit, a “single-cab” or “regular-cab” pickup truck reasonably matching the
witnesses’ descriptions.5 Due to darkness, the responding officers could not see the
driver. However, Officer Foreman activated his overhead lights and attempted a road
block by stopping his squad car across the direction of oncoming traffic on East Summer
Lake Drive.6 Yet, rather than stopping or making contact with the officers, appellant
drove off the road and onto the shoulder before continuing on at a speed of about 35 mph.
Moreover, although three officers pursued him with lights and sirens on, he continued for
a quarter mile before stopping.
       This evidence, considered in light of the totality of the circumstances, provided the
police officers with “specific articulable facts” demonstrating “some objective
manifestation” that appellant was involved in criminal activity at the time of his
detention. (People v. Souza, supra, 9 Cal.4th at p. 231.) While appellant insists his speed
was just 35 mph at the time, a speed not indicative of flight, this fact does not diminish
the probative value of the other evidence supporting the trial court’s contrary finding.
(People v. Souza, supra, 9 Cal.4th at pp. 233, 235 [a suspect’s flight is relevant when
assessing whether reasonable suspicion exists, even of a possible innocent explanation for
the flight may exist]; People v. Leath (2013) 217 Cal.App.4th 344, 355 [minor
discrepancies in descriptions of the suspect or vehicle are not dispositive for purposes of
reasonable suspicion].) On this record, the officers could reasonably believe criminal
activity involving appellant was afoot, thereby justifying their decision to detain him.

II.    Probable Cause to Arrest Appellant.
       Appellant further contends there was no probable cause to arrest him after his
detention because the officers failed to take reasonable investigatory steps such as having

5
        The pickup was a Chevy from the 1980s rather than, as Cloud described, a Nissan
or Toyota.
6
        Appellant makes much of the fact that Officer Canady, the first officer to initiate
contact, did not testify at the preliminary hearing. However, whether there is substantial
evidence supporting the trial court’s finding of reasonable suspicion is assessed based on
the totality of the evidence presented at the hearing, not on whether a particular witness
testified. (See People v. Tully (2012) 54 Cal.4th 952, 979.)


                                             7
Hurst and Cloud, the individuals who reported suspicious activity at 515 Peyton Court,
identify him prior to arrest. According to appellant, the officers’ conduct violated his
constitutional rights against unreasonable search and seizure. (See U.S. Const., 4th, 5th
and 14th Amends.; Cal. Const., art. 1, § 13.)
       To comply with the law, an officer must have probable cause before making an
arrest. (In re J.G. (2010) 188 Cal.App.4th 1501, 1505, citing Dunaway v. New York
(1979) 442 U.S. 200, 209.) Probable cause exists “when the facts known to the arresting
officer would lead a person of ordinary care and prudence to entertain an honest and
strong suspicion that the person arrested is guilty of a crime.” (People v. Price (1991) 1
Cal.4th 324, 410.) Further, probable cause must be assessed in light of the totality of
circumstances at the time of arrest; an arrest made without probable cause cannot be
justified after the fact based upon evidence revealed by the search incident to the arrest.
(In re J.G., supra, 188 Cal.App.4th at p. 1506.)
       Here, appellant’s main point in arguing that the police lacked probable cause to
arrest him is that, prior to his arrest, the officers did not present him to Cloud or Hurst for
a show-up identification procedure. However, appellant’s argument disregards that
probable cause must be assessed based upon a totality of the circumstances. Even
assuming the police’s failure to present appellant to the eyewitnesses for a show-up prior
to arrest weighs against the existence of probable cause, there are numerous other facts in
this record that, when weighed in a favorable light, clearly support the trial court’s
finding of probable cause. Most of these facts were previously identified in our
reasonable-suspicion analysis and, thus, are only briefly restated here. When appellant
was pulled over in a traffic stop, the police were objectively aware of at least three things.
First, two eyewitnesses had reported seeing a single-cab pickup truck involved in
suspicious activity just minutes earlier in the same area where police spotted appellant’s
vehicle, to wit, the only truck visible to the officers at the time. Second, these
eyewitnesses had observed the driver of this truck placing items in the truck, and the
officers could see that appellant had items in the back of his truck. And finally, appellant
took evasive driving measures to avoid the police roadblock designed to stop all drivers,


                                                8
and had driven about a quarter mile while being pursued by three squad cars with lights
and sirens activated. These evasive driving measures, in fact, prompted the officers to
conduct a “high risk vehicle stop,” calling appellant out of the truck with weapons drawn
rather than approaching him. These facts alone support the trial court’s ruling that
probable cause existed for his arrest. (People v. Price, supra, 1 Cal.4th at p. 410
[probable cause exists “when the facts known to the arresting officer would lead a person
of ordinary care and prudence to entertain an honest and strong suspicion that the person
arrested is guilty of a crime”].) Appellant complains, nonetheless, that he was patted
down, handcuffed, and placed in the squad car before his vehicle and the items inside
were taken to Hurst’s residence for identification. (See In re Dung T. (1984) 160
Cal.App.3d 697, 715 [“ ‘it is only in a rare case where, absent probable cause for arrest,
the removal of a suspect to a police station for further investigation is constitutionally
permissible’ ”].) However, even assuming appellant is correct that his handcuffing and
placement in the police vehicle constituted an arrest for purposes of the Fourth
Amendment, this assumption does not change the fact that substantial evidence exists in
this record to support the trial court’s judgment. As the California Supreme Court
instructs, “there is no hard and fast line to distinguish permissible investigative detentions
from impermissible de facto arrests. Instead, the issue is decided on the facts of each
case, with focus on whether the police diligently pursued a means of investigation
reasonably designed to dispel or confirm their suspicions quickly, using the least
intrusive means reasonably available under the circumstances.” (People v. Celis (2004)
33 Cal.4th 667, 674-675.) Accordingly, having confirmed this standard was met in this
case, we affirm the judgment.7

                                      DISPOSITION
       The judgment is affirmed.

7
        Given our conclusion that appellant’s detention and arrest were legal, his
remaining contention – to wit, that his trial counsel was constitutionally ineffective for
failing to preserve these issues for review – necessarily fails. (People v. Hart (1999) 74
Cal.App.4th 479, 493.)


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                                 _________________________
                                 Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Pollak, J.




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