Filed 4/22/15 P. v. Williams CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064781

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD242869,
                                                                     SCD238325)
JOHN WILLIAMS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, David M.

Gill, Judge. Affirmed.

         Carl Fabian, 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, Arlene A. Sevidal and Elizabeth

M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.


         John Williams appeals from a judgment convicting him robbery, aggravated

assault, petty theft, and other offenses. He argues the judgment must be reversed because
(1) the police searched his cell phone without a warrant, and (2) the jury was improperly

presented with prior misconduct evidence. We find no reversible error and affirm.

                       FACTUAL AND PROCEDURAL BACKGROUND

       Defendant, age 20 at the time of the crimes involved in this case, is a member of

the Lincoln Park gang. His convictions arose from two distinct instances of criminal

activity in August 2012. In the first incident, defendant stole two backpacks from two

victims who had joined him for a basketball game at a gym. In the second incident about

two weeks later, defendant and his gang cohorts committed armed robbery and

aggravated assault against several individuals who were in a parking lot walking to a

party late at night.

Theft of Backpacks

       On the afternoon of August 12, 2012, Luke Nguyen and Jordan Alexander went to

a recreation center to play basketball. Defendant invited them to join in a "[p]ickup

game," but defendant left while they were playing. When the gym closed shortly

thereafter, Nguyen's and Alexander's backpacks were no longer on the bleachers where

they had left them.

       Two females at the gym (Ponsavon Kuy and Frances Perez) saw defendant with

the stolen backpacks. Perez saw defendant take the backpacks while in the gym, and Kuy

saw defendant with the backpacks when she and defendant were being given a ride to

their homes from the gym. Kuy observed defendant looking through the backpacks, and

heard him talk about selling cell phones that he found in the backpacks. Shortly after the

theft, victim Nguyen saw that defendant's Twitter page contained a posting to sell an

                                             2
iPhone which matched the iPhone that Nguyen had in his backpack. After a friend of

Nguyen's sent defendant a "tweet" saying " 'Give him back his phone,' " defendant

restricted his Twitter account so it was no longer open to the public.

       The police found victim Alexander's identification card in defendant's bedroom

during a search conducted after the robbery and assault incident that occurred about two

weeks later.

Robbery and Assault Incident

       At about 12:30 a.m. on August 26, 2012, a group of friends, including Sterling

Wingo, Kyle Persinger, Amanda Wagner, and several others (the victim group), were in a

parking lot walking to a party. The victim group was not affiliated with any gang. As

they passed another group of people (the assailant group), a male in the assailant group

made gang references, asking the victim group if they "bang," where they were from, and

if they were "bloods." The victim group said no and tried to ignore the questioning.

Someone in the assailant group said, " 'Hey, he's from Skyline,' " referring to a rival gang

of Lincoln Park. One or more people in the assailant group then said, " 'Line it up' " or

"catch a fade," which means everyone get ready to fight.

       One of the males in the assailant group told Persinger to empty his pockets, and

when Persinger refused, the male punched him. Another male pointed a gun at Wingo

and took Wingo's jacket, watch and bracelet. Someone also hit Wingo in the chin. At

some point a male in the assailant group lifted his shirt and revealed the butt of a gun.

When someone in the victim group yelled " '[t]hey have a gun,' " the victim group fled

the parking lot in various directions. While he was fleeing, Wingo called 911.

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       Some of the assailants caught up to Persinger and started kicking and stomping

him. When Wagner tried to come to his aid, the assailants starting punching and kicking

her. Persinger was able to flee while Wagner was being attacked. When the assailants

stopped the attack on Wagner, a neighbor flagged down a police car to assist her.

       To determine the identity of the assailants, the police conducted a curbside lineup

on the night of the incident, and thereafter interviewed and showed photo lineups to

various witnesses. As the result of this investigation, defendant and several other Lincoln

Park gang members were identified as perpetrators. At the curbside lineup, witnesses

identified Lincoln Park gang member Keshwan Degrate as the person who pointed the

gun at Wingo; Lincoln Park gang member Davone Williamson as one of the people who

punched Persinger; and Stephanie Wells as one of the people who assaulted Wagner.

       Defendant was not among the group of potential suspects who had been

apprehended and brought to the curbside lineup. However, he was subsequently

identified as a perpetrator by several individuals, including victim Wagner, accomplice

Wells, and a female he was dating (Bernesha Phillips). Wagner identified him in a photo

lineup, and Wells and Phillips identified him and provided details of what occurred in

recorded police interviews. Defendant was also depicted in a photo taken the night of the

party wearing a camouflage tank top that matched a description provided by a victim.

       After being identified by Wagner and Wells, defendant was arrested. During a

search of defendant's person, the police found and seized his cell phone. The police

searched the phone and discovered several text messages exchanged between him and

Phillips that supported that he was involved in the robbery/assault incident. In text

                                             4
messages exchanged in the hours preceding the incident, defendant told Phillips that he

was supposed to fight and " 'pop somebody' " at her cousin's party that night, and when

she pleaded with him not to do this, he responded that he would " 'fight only.' " In a

phone conversation and text message that evening, defendant asked Phillips if she would

hold his gun in her purse, but she refused.

       Phillips told the police that during the party she heard talk that people from

Skyline were "coming over," and at one point defendant pulled a silver handgun out of

his waistband and showed it to Phillips. When defendant was outside by the parking lot

near the party, he called Phillips and told her cars had "pulled up" and he thought he was

going to get jumped. When word spread that a fight had started outside, Phillips rushed

outside with the others and saw people getting out of cars. Phillips heard defendant ask

" 'where are you from, do you bang?' " The people getting out of the cars seemed to be

trying to ignore the situation and go to the party, but seconds later defendant started

fighting, and then everybody was fighting.

       Similarly, Wells told the police that during the party she heard defendant say he

had " 'the pistol in the car.' " Later, she saw defendant start the fight outside by hitting a

"boy"; Degrate then joined the assault; and defendant and Degrate "[b]eat him up." After

the fight, Wells saw Degrate pass a small, silver gun to defendant, saying " 'Blood, I think

I jammed it.' "

       A prosecution gang expert described the criminal activities of the Lincoln Park

gang and opined that the robbery and assaults were committed to benefit the gang.



                                               5
Jury Verdict and Sentence

       For the theft committed at the gym, defendant was charged with petty theft (victim

Nguyen) and receiving stolen property (victim Alexander). For the robbery and assault

incident, defendant was charged with robbery (victim Wingo), attempted robbery (victim

Persinger), and assault by means of force likely to produce great bodily injury (victims

Persinger and Wagner). The information included gang benefit enhancements for the

robbery, attempted robbery, and assault charges, and gun use enhancements for the

robbery and attempted robbery charges.

       Defendant was convicted as charged. Based on the current charges, a prior serious

felony conviction, a prior strike conviction, and probation revocation in another case,

defendant was sentenced to a total term of 38 years eight months.

                                      DISCUSSION

                            I. Warrantless Search of Cell Phone

       Defendant argues the judgment must be reversed because the police violated his

federal constitutional right to be free of unreasonable searches and seizures when, upon

his arrest, the police detective (Rudy Castro) searched his cell phone without obtaining a

warrant.

       In 2011, the California Supreme Court held the police may conduct a warrantless

search of a cell phone seized from a defendant's person at the time of arrest without

violating the Fourth Amendment's proscription against unreasonable searches and

seizures. That same year, the United States Supreme Court denied certiorari in Diaz.

(People v. Diaz (2011) 51 Cal.4th 84, 88, 93, 101, cert. den. (2011) __ U.S. __ [132 S.Ct.

                                             6
94].) Defendant was arrested in August 2012 and the pretrial and trial proceedings

occurred in 2012 and 2013. In January 2014, the United States Supreme Court granted

certiorari in an unrelated California case and a Massachusetts federal case that had

reached conflicting conclusions concerning the warrantless cell phone search issue. (See

People v. Riley (Feb. 8, 2013, D059840) [nonpub. opn.], cert. granted Jan. 14, 2014, __

U.S. __ [134 S.Ct. 999] [applying Diaz to permit warrantless cell phone search]; United

States v. Wurie (1st. Cir. 2013) 728 F.3d 1, cert. granted Jan. 17, 2014, __ U.S. __ [134

S.Ct. 999] [cell phone search requires warrant].) The United States Supreme Court

resolved the conflict in June 2014, overruling Diaz and holding that the search-incident-

to-arrest exception to the warrant requirement did not apply to cell phones, and (absent

exigent circumstances) a warrant was required before searching a cell phone seized at the

time of arrest. (Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473, 2484-2485, 2493-

2495].)

       Thus, at the time of defendant's arrest and trial, the governing law in California

permitted a warrantless search of a cell phone seized from a defendant's person at the

time of arrest. Understandably, at trial defense counsel did not challenge the legality of

the cell phone search because such a challenge would have been futile under Diaz.

However, because defendant's conviction is not yet final on direct review, he is now

entitled to raise this issue based on the subsequent overruling of Diaz by the United

States Supreme Court in Riley. (See Davis v. United States (2011) __ U.S. __ [131 S.Ct.

2419, 2430-2431] (Davis).) The fact that defendant was subjected to an unconstitutional

search of his cell phone does not mean he is automatically entitled to exclusion of the cell

                                             7
phone data. (Id. at p. 2431.) Rather, we must determine whether he is entitled to the

remedy of exclusion of the evidence, which, in this case, requires a consideration of the

good faith exception to the exclusionary rule. (See ibid.)

       The California Supreme Court has granted review to consider the question of

whether the good faith exception to the exclusionary rule should apply to warrantless cell

phone searches conducted at a time when Diaz was the controlling authority. (People v.

Macabeo, review granted Nov. 25, 2014, S221852 [good faith exception applies].) As

we shall explain, pending a decision on this issue from our state high court, we conclude

the good faith exception does apply.

       In Davis, the United States Supreme Court evaluated the applicability of the good

faith exception in a case involving a change in the law concerning the permissibility of

automobile searches incident to arrest. Davis held that "searches conducted in

objectively reasonable reliance on binding appellate precedent are not subject to the

exclusionary rule." (Davis, supra, 131 S.Ct. at pp. 2423-2424, 2426-2429.) The Davis

court explained that the exclusionary rule is not a personal constitutional right nor is it

designed to redress the injury caused by an unconstitutional search; rather, its sole

purpose is to deter future Fourth Amendment violations. (Id. at p. 2426.) "For exclusion

to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs."

(Id. at p. 2427.)

       This cost-benefit analysis focuses on the " 'flagrancy of the police misconduct' at

issue. [Citation.] . . . When the police exhibit 'deliberate,' 'reckless,' or 'grossly

negligent' disregard for Fourth Amendment rights, the deterrent value of exclusion is

                                               8
strong and tends to outweigh the resulting costs. [Citation.] But when the police act with

an objectively 'reasonable good-faith belief' that their conduct is lawful [Citation] . . .

' "the deterrence rationale loses much of its force," ' and exclusion cannot 'pay its way.' "

(Davis, supra, 131 S.Ct. at pp. 2427-2428.) Davis elaborated that "[p]olice practices

trigger the harsh sanction of exclusion only when they are deliberate enough to yield

'meaningfu[l]' deterrence, and culpable enough to be 'worth the price paid by the justice

system.' [Citation.] . . . The police [here] acted in strict compliance with binding

precedent, and their behavior was not wrongful. Unless the exclusionary rule is to

become a strict-liability regime, it can have no application to this case. [¶] . . . [¶] . . .

[W]hen binding appellate precedent specifically authorizes a particular police practice,

well-trained officers will and should use that tool to fulfill their crime-detection and

public-safety responsibilities . . . ." (Id. at pp. 2428-2429, first bracketed material in

original.)

       The warrantless search of defendant's cell phone was in compliance with the

California Supreme Court's holding in Diaz. Because the officers were authorized under

Diaz to conduct a warrantless search of the phone, they were properly performing their

duties. We note this is not a case where the law in California on cell phone searches was

unsettled. (See Davis, supra, 131 S.Ct. at pp. 2435-2436 (conc. opn. of Sotomayor, J.).)1



1      Justice Sotomayor stated that although the Davis majority held it was proper to
apply the good faith exception when binding appellate precedent specifically authorized a
particular police practice, the majority's holding did not resolve the question of whether
the exception should be applied when the constitutionality of the search is unsettled.
(Davis, supra, 131 S.Ct. at pp. 2435-2436 (conc. opn. of Sotomayor, J.) [suggesting that
                                                9
At the time of defendant's arrest, binding California Supreme Court authority provided

that Fourth Amendment constitutional protections did not require a warrant to search a

cell phone seized incident to an arrest. Accordingly, the good faith exception to the

exclusionary rule applies, and there is no basis to provide relief to defendant based on the

change in the law.

       Defendant argues we should not apply the good faith exception because the record

indicates Detective Castro did not rely on Diaz but rather thought a warrant was required

to search his cell phone. In support, he cites Detective Castro's statement to Phillips

(during her recorded police interview) that the police "do search warrants on cell phones"

and they had seen a text to her from defendant referring to a gun. This statement does not

defeat the applicability of the good faith exception for several reasons. First, a broad

statement that the police obtain search warrants for cell phone searches does not

necessarily reflect a belief that warrants are required for a cell phone search incident to

an arrest; indeed, even under Diaz there are a broad array of circumstances where a

warrant would be required for a cell phone search. Second, the relevant inquiry for the

good faith exception is primarily objective; i.e., whether a reasonably well trained officer

would have thought the search was legal in light of all the circumstances. (See Herring v.

United States (2009) 555 U.S. 135, 145; Ashcroft v. Al-Kidd (2011) __ U.S. __ [131 S.Ct.

2074, 2080]; United States v. Madden (10th Cir. 2012) 682 F.3d 920, 927-928.) Here, a

reasonably well trained officer would have thought the warrantless search of defendant's

if constitutionality of police practice is unsettled, it might be appropriate not to apply
good faith exception so that police have incentive to err on side of constitutional
behavior].)
                                              10
cell phone was legal under binding California Supreme Court authority. Third, to the

extent a court considers whether an officer has engaged in improper conduct so as to

warrant rejection of the good faith exception in a particular case (see Herring, supra, at p.

146), there is no bad faith demonstrated here. Detective Castro's reference to the practice

of securing a warrant for cell phones does not suggest he engaged in " 'deliberate,'

'reckless,' or 'grossly negligent' disregard for Fourth Amendment rights" when he

searched defendant's cell phone without a warrant. (Davis, supra, 131 S.Ct. at p. 2427.)

Because Detective Castro's search of the cell phone complied with controlling California

Supreme Court authority, there is no basis to characterize his conduct as being in bad

faith.

         We also reject defendant's contention that the Diaz decision cannot support the

good faith exception because the California Supreme Court has no authority to decide a

federal constitutional issue and was merely speculating about how the United States

Supreme Court would view the issue. State courts are fully authorized to decide federal

constitutional issues, subject to the dictates of the United States Supreme Court. (See

People v. Lessie (2010) 47 Cal.4th 1152, 1164, 1167; People v. Estrada (1965) 234

Cal.App.2d 136, 145; 7 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional

Law, § 112, p. 217; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §§ 505-506, pp. 568-

569.) Because the United States Supreme Court had not yet ruled on the issue of

warrantless cell phone searches at the time of defendant's arrest, the California Supreme

Court's decision was binding in California.



                                              11
       Given our conclusion that the good faith exception to the exclusionary rule

applies, we need not consider the Attorney General's contention that the issue was

forfeited, nor need we evaluate whether the warrantless search was a permissible

probation search.2

           II. Counsel's Failure To Object to Uncharged Misconduct Evidence

       Defendant argues he was not provided effective representation and he was

deprived of a fair trial because his counsel did not object to the admission of two

statements (made by witnesses to the police during the robbery/assault investigation) that

referred to his commission of other crimes. Defendant contends this evidence was

inadmissible uncharged misconduct evidence, and there was no tactical reason for his

counsel not to object to admission of the evidence.

       The complained-of evidence consists of (1) a statement by victim Wagner during

the photo lineup, and (2) a comment by defendant's accomplice Wells during her

recorded police interview. As to Wagner's statement, Detective Castro testified at trial

that when he showed the photos to Wagner at her father's residence, she immediately

said, " 'Dad, you remember when my wallet got stolen? This is the guy that stole it.' "

Wagner explained to Detective Castro that a year before the charged robbery/assault

incident, she had a party at her home and her friends told her that defendant had taken her

wallet. As to Wells's statement, during the recorded police interview that was played for


2       Although we need not reach the probation search issue, we note that the officer
(Detective Castro) who seized and searched defendant's cell phone testified at the
preliminary hearing that he conducted a "probation search" of defendant's residence after
his arrest.
                                            12
the jury, she described defendant's participation in the robbery/assault incident and during

this narrative commented, "Every party [defendant] goes to, he ends up robbing

somebody."

       To show ineffective representation, the defendant must establish that counsel's

performance fell below an objective standard of reasonableness, and that there is a

reasonable probability that absent counsel's deficiency the result would have been

different. (People v. Weaver (2001) 26 Cal.4th 876, 925.) There is a strong presumption

that counsel's conduct falls within the wide range of reasonable professional assistance,

and on appeal we will not find ineffective assistance unless there could be no conceivable

tactical reason for counsel's acts or omissions. (Id. at pp. 925-926.) Further, if the record

does not show prejudice from counsel's alleged deficiency, we may reject the claim

without determining whether counsel's performance was deficient. (People v. Sapp

(2003) 31 Cal.4th 240, 263.)

       The record reflects that defense counsel may have tactically refrained from

objecting to Wagner's statement to her father during the photo lineup. On cross-

examination of Detective Castro, defense counsel elicited Castro's acknowledgement that

during an interview conducted several hours before the photo lineup, Wagner made no

mention that she recognized one of the assailants in the robbery/assault incident as the

male who had stolen her wallet at a previous party. Defense counsel could have

reasonably assessed that Wagner's statement about the wallet theft, indicating that she

knew defendant but when first interviewed failed to tell Detective Castro about his



                                             13
presence at the robbery/assault incident, was useful impeachment evidence concerning

her subsequent identification of defendant as a participant in the robbery/assault offenses.

       In any event, the admission of these two statements by Wagner and Wells was not

prejudicial. For purposes of evaluating the gang enhancements and defendant's state of

mind, the jury was presented with a gang expert's testimony describing defendant's prior

participation in a robbery in 2009 and a robbery and assault in 2011. In light of this other

evidence showing defendant's gang-related criminal activities, there is no reasonable

likelihood the jury's perception of defendant was significantly impacted by Wagner's and

Wells's brief statements referencing his commission of a wallet theft and tendency to

commit robberies at parties. Also, there was strong evidence that defendant was a

perpetrator in the charged backpack theft and robbery/assault incidents. For the backpack

thefts, he was identified by two witnesses (Perez and Kuy) as the perpetrator, and an

identification card of one of the victims was found in his bedroom. For the robbery and

assaults, he was identified by three witnesses (Wagner, Wells, and Phillips) as a

participant; he exchanged text messages with Phillips supporting that he was involved;

and he was depicted in a photo taken the night of the offenses wearing a distinctive shirt

that matched a victim's description of one of the assailants. There is no reasonable

probability the passing comments by Wagner and Wells affected the jury's verdict.




                                            14
                                  DISPOSITION

      The judgment is affirmed.




                                                HALLER, J.

WE CONCUR:



BENKE, Acting P. J.



O'ROURKE, J.




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