Filed 11/6/17
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                     DIVISION FOUR


LAMONTE BREWER,
         Petitioner
                                                   A151584
v.
SUPERIOR COURT OF CONTRA                           Contra Costa County Super. Ct.
COSTA COUNTY,                                      No. 02 3236411
        Respondent;
THE PEOPLE OF THE STATE OF
CALIFORNIA,
        Real Party in Interest.


                                    I. INTRODUCTION
        Defendant Lamonte Brewer seeks a writ of mandate directing the trial court to
grant his motion to set aside an information charging him with three gun possession
crimes. Defendant argues that the magistrate conducting the preliminary hearing should
have suppressed evidence of a gun that police found during a search of a car, and that
absent the gun evidence, the charges were not supported by reasonable or probable cause.
The magistrate refused to suppress the gun evidence because defendant lacked a
reasonable expectation of privacy in the car that was searched. The trial court denied
defendant’s motion to set aside the information for the same reason.
        We conclude that defendant can challenge the gun evidence as the fruit of an
unlawful detention, even if he lacked an expectation of privacy in the searched car. We
will therefore grant defendant’s petition, and direct the trial court to conduct further




                                              1
proceedings to determine whether the motion to set aside the information should be
granted.
                   II. FACTUAL AND PROCEDURAL BACKGROUND
       Defendant was charged with possession of a firearm with a prior violent
conviction (Pen. Code, § 29900, subd. (a)(1), count 1) 1; manufacturing, importing,
keeping for sale, or giving or receiving a large-capacity magazine (§ 32310, subd. (a),
count 2); and carrying a loaded firearm (§ 25850, subd. (a), count 3).
       Detective Cliff Calderan was the only witness to testify at the preliminary hearing.
Calderan testified that on September 1, 2016 at approximately 9:40 p.m., he was on patrol
near the Crescent Park apartment complex in Richmond. The complex was claimed by
the Manor Boyz criminal street gang and was in a high-crime area of Richmond.
Calderan spotted a red Dodge Grand Caravan in the parking lot. Defendant was sitting in
the rear of the vehicle. Two other people were in the driver and front passenger seats.
The person in the front passenger seat was the registered owner of the vehicle.
       Calderan and others officers at the scene approached the van. Calderan testified
that as he and the other officers were approaching, defendant “ducked down behind the
driver’s seat immediately.” Calderan then explained that: “We told him [defendant] to
get up and put his hands up. He looked to the right, moved to the right, it seemed like he
was trying to find a way to get out of the vehicle . . . . After several orders for him to
remain still and put his hands up, he moved to the back of the van and did so.” The
officers had their guns drawn, and also told the other occupants of the vehicle to put their
hands up.
       Calderan approached the front passenger seat and located marijuana in the
possession of the person sitting there. The officers then conducted a search of the vehicle
(apparently after ordering the three occupants out of the vehicle). During the search,
Calderan found a Glock 10-millimeter loaded with a 15-round magazine underneath the
rear of the driver’s seat, in front of where defendant had been seated.


       1
           All further undesignated statutory references are to the Penal Code.

                                               2
       Defendant moved at the preliminary hearing to suppress the gun evidence, arguing
it was obtained in violation of his Fourth Amendment rights. The magistrate denied the
motion because defendant lacked an expectation of privacy in the searched car, and held
defendant to answer on each of the gun possession charges.
       After the prosecution filed an information, defendant moved under section 995 to
set aside the information, 2 renewing his argument that the gun evidence should be
suppressed. The trial court denied the motion. The trial court stated it was “clear” that
the police officers detained defendant without reasonable suspicion. Nevertheless, the
trial court determined that defendant failed to establish a reasonable expectation of
privacy in the vehicle where police found the gun.
       Defendant then filed this petition for a writ of mandate. We issued an alternative
writ based on our preliminary conclusion that the trial court had erred in denying
petitioner’s section 995 motion. We directed the trial court to set aside and vacate its
order and enter a new one granting defendant’s motion or, in the alternative, to show
cause before us why a peremptory writ of mandate should not be granted. The trial court
did not vacate its ruling, and the matter is now before us.
                                     III.   DISCUSSION
       “A criminal defendant may test the unreasonableness of a search or seizure by
making a motion to suppress at the preliminary hearing and, if unsuccessful, renewing the
motion in superior court if held to answer. (§ 1538.5, subd. (i).) Or, if unsuccessful at
the preliminary hearing, he or she may raise the matter in superior court under the
standards governing a section 995 motion. (§ 1538.5, subd. (m).) …. [¶] ‘In a 995
proceeding, the court merely reviews the evidence. It does not substitute its judgment as
to the weight thereof or the credibility of the witnesses who testified at the hearing nor
does it resolve conflicting factual contentions. [Citations.] The function is similar to that
of an appellate court reviewing the sufficiency of the evidence to sustain a judgment and


       2
        Section 995 states that an information shall be set aside if a defendant has been
committed without reasonable or probable cause. (§ 995, subd. (a)(2)(B).)

                                              3
involves the determination of a legal issue only.’ [Citation.]” (People v. Superior Court
(Cooper) (2003) 114 Cal.App.4th 713, 717.)
       “[O]n appeal concerning a section 995 review of a motion-to-suppress denial, it is
the determination of the magistrate at the preliminary hearing that is reviewed.’
[Citations.]” (Cooper, supra, 114 Cal.App.4th at p. 717.) In so doing, the appellate court
applies the same standard as the trial court under the section 995 motion—it does not
substitute its judgment as to the weight of the evidence or the credibility of the witnesses,
nor does it resolve conflicting factual contentions. (People v. Romeo (2015) 240
Cal.App.4th 931, 941-942.)
       Here, it appears that both the magistrate and the trial court denied the motions
based on the legal conclusion that defendant lacked standing to challenge the search of
the car. Consequently, “[w]here, as here, the facts are not in dispute, the appellate court
may review the question of standing de novo. [Citations.]” (People v. Koury (1989) 214
Cal.App.3d 676, 685.)
       It has long been established that an individual cannot challenge the introduction of
evidence obtained in an allegedly unlawful search unless the individual had a reasonable
expectation of privacy in the object seized or the place searched. (Rakas v. Illinois
(1978) 439 U.S. 128, 143, 148.) Defendant, however, is not challenging the lawfulness
of the search that yielded the gun. He is arguing that he was unlawfully detained by
police, and that the gun found in the subsequent search should be suppressed as the fruit
of the unlawful detention.
       We agree with defendant that he may challenge the gun evidence as the fruit of an
unlawful detention. The parties have not cited any cases from California holding that a
defendant may move to suppress evidence as the fruit of an unlawful detention even if the
defendant lacked an expectation of privacy in the vehicle where the evidence was found.
But there is an abundance of authority from other jurisdictions that supports defendant’s
argument. (See U.S. v. Ellis (6th Cir. 2007) 497 F.3d 606, 612 [“Although a passenger
does not have a legitimate expectation of privacy in the searched vehicle, ‘as a passenger
[a defendant] may still challenge the stop and detention and argue that the evidence


                                              4
should be suppressed as fruits of illegal activity’ ”]; U.S. v. Kimball (1st Cir. 1994)
25 F.3d 1, 5-6 [“Thus, if the initial stop of the vehicle was illegal, evidence seized by
virtue of that stop, such as the tools in this instance, may be subject to exclusion under
the ‘fruit of the poisonous tree’ doctrine”]; U.S. v. McKneely (10th Cir. 1993) 6 F.3d
1447, 1450 [“ ‘[E]ven if [a] defendant lacks standing to challenge the search of the car, if
the initial stop was illegal, the seized contraband is subject to exclusion under the “fruit
of the poison[ous] tree” doctrine’ ”]; U.S. v. Martinez (D.Kan. 2008) 537 F.Supp.2d
1153, 1156-1157 [defendant “lacks standing to challenge the vehicle search of [the co-
defendant’s] vehicle,” but “nonetheless properly asserts that she may contest the
lawfulness of her own detention and seek to suppress evidence found in the vehicle as the
fruit of the illegal detention”]); State v. Bowers (Ark. 1998) 976 S.W.2d 379, 382 [“There
is no doubt that the search which resulted in finding marijuana and methamphetamine
was the direct result of the illegal stop. Under these circumstances, we hold that the
search was tainted, and we affirm the trial court’s ruling that the drugs seized must be
suppressed”].)
       The Supreme Court’s decision in Brendlin v. California (2007) 551 U.S. 249
further supports defendant’s argument. Brendlin addressed whether a passenger of a
vehicle is seized within the meaning of the Fourth Amendment when a police officer
makes a traffic stop. (Id. at p. 252.) The Supreme Court held that a passenger is seized,
“and so may challenge the constitutionality of the stop.” (Id. at p. 251.) Although the
high court was not called upon to address whether the passenger could challenge any
evidence found in a subsequent search as fruit of an unlawful traffic stop, it strongly
implied that a passenger could make such a challenge. The Court explained: “Holding
that the passenger in a private car is not (without more) seized in a traffic stop would
invite police officers to stop cars with passengers regardless of probable cause or
reasonable suspicion of anything illegal. [Footnote omitted.] The fact that evidence
uncovered as a result of an arbitrary traffic stop would still be admissible against any
passengers would be a powerful incentive to run the kind of ‘roving patrols’ that would
still violate the driver’s Fourth Amendment right.” (Id. at p. 263, italics added.)


                                              5
       Based on Brendlin and the other authority cited above, we hold that a defendant
may challenge evidence found in a searched vehicle as the fruit of an unlawful detention,
even if the defendant lacked a reasonable expectation of privacy in the searched vehicle.
       In his return to our alternative writ of mandate, the Attorney General does not
dispute that defendant should be able to challenge the gun evidence as the fruit of an
unlawful detention. Instead, the Attorney General asks us to issue a new alternative writ
of mandate commanding the trial court to determine whether the initial detention was
unlawful and, if so, whether the seized gun was the fruit of that detention. We decline the
Attorney General’s request, and will issue a peremptory writ of mandate directing the
trial court to vacate its order denying defendant’s motion to set aside the information.
We will not, however, direct the trial court to enter a new order granting the motion.
Instead, we will direct the trial court to conduct further proceedings in this matter, which
will allow the trial court to address any remaining issues before deciding whether to grant
defendant’s motion.
                                     IV. DISPOSITION
       Let a peremptory writ of mandate issue directing respondent Superior Court of
Contra Costa County to vacate and set aside its ruling denying the motion to set aside the
information, and to thereafter conduct further appropriate proceedings.




                                              6
                                                      _________________________
                                                      Rivera, Acting P.J.


We concur:


_________________________
Streeter, J.


_________________________
Dondero, J.




Brewer v. Superior Court of Contra Costa County (A151584)



                                                7
Brewer v. Superior Court of Contra Costa County; The People of the State of California (A151584)
 Trial Court:             Contra Costa County
 Trial Judge:             Honorable Charles B. Burch


Counsel for Petitioner,              D. Glenn Brown Law Office, David Glenn Brown.
Lamonte Brewer:

Counsel for Respondent, Superior     Xavier Becerra, Attorney General, Gerald A. Engler,
Court of Contra Costa County and     Chief Assistant Attorney General, Jeffrey M. Laurence,
Real Party in Interest, The People   Senior Assistant Attorney General, Bruce M. Slavin,
of the State of California:          Deputy Attorney General, Laurence K. Sullivan and
                                     Catherine A. Rivlin, Supervising Deputy Attorneys
                                     General.




                                               8
