P. v. Carson

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Filed 9/25/15 P. v. Carson CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVANTE J. CARSON,
Defendant and Appellant.
A139953
(Contra Costa County
Super. Ct. No. 51308329)
ORDER MODIFYING OPINION AND
DENYING REHEARING
[NO CHANGE IN JUDGMENT]
BY THE COURT:
It is ordered that the opinion filed herein on August 28, 2015, be modified as follows:
1. On page 2, the first sentence of the second full paragraph shall be modified to read
as follows:
Ten months later, in April 2013, a group of approximately 10 men,
including defendant, appeared to be standing in the parking stall of a cul-de-sac,
and ―in the circle‖ were ―playing dice, shooting dice.‖
2. On page 6, the third paragraph is modified to read as follows:
Under Pringle, supra, 540 U.S. at pages 371–374, and Hughes, supra,
240 Cal.App.2d at pages 616–617, there was probable cause to arrest defendant

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for gambling. He was a part of a distinct, 10-person group standing in a parking
stall around dice and money. The evidence suggests defendant was not simply
near the group—he was not merely walking or parked nearby. Rather, the
evidence suggests he was an integrated part of it.
3. On page 6, the first sentence of the fourth paragraph shall be modified to read as
follows:
Furthermore, the police observed more than the discrete group of men in
the parking stall around the dice and money.
There is no change in the judgment.
The request for judicial notice is hereby denied.
The petition for rehearing is denied.
Dated:
________________________________
Humes, P. J.

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Filed 8/28/15 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVANTE CARSON,
Defendant and Appellant.
A139953
(Contra Costa County
Super. Ct. No. 5-130832-9)
Appellant and defendant Davante Carson appeals from a judgment of conviction,
following a jury trial, of two counts of unlawfully carrying a loaded firearm (Pen. Code,
§ 25850, subds. (a), (c)(6))1 and one count of street terrorism (§ 186.22, subd. (a)).
Defendant contends the trial court should have suppressed evidence recovered from his
cell phone, which the police searched without a warrant following his arrest. He also
contends the court abused its discretion in denying a midtrial continuance so he could
attempt to find a witness willing to connect a third party, rather than defendant, with the
gun at issue in one of the firearm charges. We conclude the police had probable cause to
arrest defendant and the exclusionary rule does not apply to the cell phone search here
because the police acted in good faith reliance on California Supreme Court authority.
We further conclude the trial court did not abuse its discretion in denying a continuance,
and therefore affirm the judgment.
1 All further statutory references are to the Penal Code unless otherwise indicated.

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BACKGROUND
In June 2012, police officers, while on patrol, observed defendant take an item
from a car trunk, put it under his waistband, and manipulate it as if it were a gun.
Defendant appeared nervous and was looking up and down the street. An officer stopped
defendant and conducted a pat search which revealed an unregistered, loaded Glock
pistol at defendant‘s waist. He was arrested, and charged with personally and publicly
carrying a loaded firearm not registered to him. (§ 25850, subds. (a), (c)(6).)
Ten months later, in April 2013, a group of approximately 10 men, including
defendant, appeared to be standing in a circle, ―playing dice, shooting dice.‖ Both dice
and money were on the ground. Several officers coordinated their efforts and approached
the group. The men, including defendant, fled, and were eventually detained and
arrested. Defendant‘s cell phone was seized at the time of his arrest. The police also
found two firearms by trash bins about 20-25 feet from where the group had been
standing. One was a loaded Glock pistol with a unique laser sight in clean working order.
Later, at the police station, and just before interviewing defendant, an officer
reviewed the images on defendant‘s cell phone. Several showed a Glock pistol. For
instance, there were pictures of individuals related to defendant holding what appeared to
be the found Glock. There were pictures of defendant‘s brother holding two Glock
pistols, of defendant wearing a Cincinnati Reds baseball hat (a symbol of a Richmond
gang called ―Deep-C‖), and of a Glock pistol with a laser sight like the one confiscated,
plus another pistol and a Cincinnati Reds hat. Text messages on the phone showed
defendant and his brother discussed having a ―hamma,‖ a slang term for gun.
Based on the pictures, texts, the identities of the other gamblers, and other
evidence, police believed defendant was a member of Deep-C and that having the Glock
nearby would benefit the gang, which was likely poised for violence in the wake of a
shooting earlier that day.
Further investigation revealed the found Glock was not registered to defendant.

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In connection with this incident, defendant was again charged with unlawful
carrying of a loaded firearm not registered to him (§ 25850, subds. (a), (c)(6)) and also
with street terrorism (§ 186.22, subd. (a)).
In a consolidated trial, a jury convicted defendant of the two gun charges and the
one street terrorism charge and found true various enhancements. The trial court
suspended imposition of sentence and placed defendant on three years‘ probation with
various terms and conditions, including serving a year in county jail.
Defendant seeks reversal of his convictions for the April 2013 gun and street
terrorism charges, but does not challenge his conviction for the June 2012 gun charge.
DISCUSSION
Suppression Motion
At the outset of trial, defendant made a motion to suppress the evidence obtained
as a result of the warrantless search of his cell phone, arguing there was no probable
cause for his April 2013 arrest and therefore the search could not be sustained as incident
to a lawful arrest.2 The court heard the motion midtrial, after the prosecution rested.
Defendant argued the prosecution failed to present sufficient evidence he had been
engaged in any unlawful conduct while part of the group of men hanging around the dice
and money. The prosecutor asserted the officers had ample grounds to arrest defendant
for gambling and violating his on-bail conditions (stemming from the June 2012 arrest),
and therefore the search of defendant‘s cell phone data was proper. The trial court denied
the motion to suppress.
― ‗The Fourth Amendment provides ―[t]he 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., 4th Amend.) This guarantee has been incorporated into
the Fourteenth Amendment to the federal Constitution and is applicable to the states.
[Citation.] A similar guarantee against unreasonable government searches is set forth in
2 Several months earlier, defendant had moved, unsuccessfully, to suppress
evidence in connection with his June 2012 detention, search, and arrest. Defendant does
not challenge the trial court‘s handling of that motion.

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the state Constitution (Cal. Const., art. I, § 13) but, since voter approval of Proposition 8
in June 1982, state and federal claims relating to exclusion of evidence on grounds of
unreasonable search and seizure are measured by the same standard. [Citations.] ―Our
state Constitution thus forbids the courts to order the exclusion of evidence at trial as a
remedy for an unreasonable search and seizure unless that remedy is required by the
federal Constitution as interpreted by the United States Supreme Court.‖ ‘ (People v.
Camacho (2000) 23 Cal.4th 824, 829–830 . . . .)‖ (People v. Stillwell (2011)
197 Cal.App.4th 996, 1004.)
― ‗ ―The standard of appellate review of a trial court‘s ruling on a motion to
suppress is well established. We defer to the trial court‘s factual findings, express or
implied, where supported by substantial evidence. In determining whether, on the facts
so found, the search or seizure was reasonable under the Fourth Amendment, we exercise
our independent judgment.‖ ‘ [Citations.]‖ (People v. Suff (2014) 58 Cal.4th 1013, 1053;
see also People v. Price (1991) 1 Cal.4th 324, 409 [same standard of review governing
the related determination that a warrantless arrest was based on probable cause].) A
suppression motion ruling ―will not be disturbed on appeal merely because given for a
wrong reason.‖ (People v. Walker (2012) 210 Cal.App.4th 1372, 1383, internal quotation
marks omitted.) ―If right upon any theory of the law applicable to the case, it must be
sustained regardless of the considerations which may have moved the trial court to its
conclusion.‖ (Ibid., internal quotation marks omitted.)3
3 The trial court‘s order denying defendant‘s motion is less than helpful. It uses
language pertaining to a detention (i.e. reasonable suspicion), while both parties have
always recognized the issue is whether police had probable cause to arrest. The order
also appears to rely on a theory of inevitable disclosure, which the People have
understandably not advanced in their respondent‘s brief on appeal. In any case, as
indicated above, we are not bound by the trial court‘s reasoning and examine the
evidence independently to determine whether the motion was properly denied.

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Probable Cause to Arrest
Defendant again advances the argument he made in the trial court—that there were
insufficient grounds to arrest him and therefore the search of his cell phone was not made
incident to a lawful arrest.
― ‗Probable cause exists when the facts known to the arresting officer would
persuade someone of ―reasonable caution‖ that the person to be 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. Scott (2011) 52 Cal.4th 452, 474.)
The requirement for particularized suspicion does not mean an arresting officer
must first obtain evidence against a particular defendant that would win the day in court.
The cause required is ―probable.‖ (Maryland v. Pringle (2003) 540 U.S. 366, 371
(Pringle).) ― ‗ ―[T]he term ‗probable cause,‘ according to its usual acceptation, means
less than evidence which would justify condemnation . . . . It imports a seizure made
under circumstances which warrant suspicion.‖ More recently, we said that ―the quanta
. . . of proof‖ appropriate in ordinary judicial proceedings are inapplicable to the decision
to issue a warrant. [Citation.] Finely tuned standards such as proof beyond a reasonable
doubt or by a preponderance of the evidence, useful in formal trials, have no place in the
[probable-cause] decision.‘ ‖ (Ibid.; see also In re Charles C. (1999) 76 Cal.App.4th 420,
423.)
As relevant in this case, a defendant may be lawfully arrested if he is observed as
part of a group of individuals believed to be jointly engaged in a criminal act. (Pringle,
supra, 540 U.S. at pp. 372–373.) Simply being near criminal activity does not amount to
probable cause. (Ibid.; Ybarra v. Illinois (1979) 444 U.S. 85, 91 [when warrant allowed
search of tavern and its owner, police could not search patrons]; United States v. Di Re
(1948) 332 U.S. 581, 594 [when informant only singled out one person, other passenger
in car could not be searched].) However, being observed as part of a distinct group,

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where there are signs of a criminal enterprise, is another matter. (Pringle, supra, at
pp. 371–374 [―any or all‖ of three men in car could be arrested for possession of
contraband found throughout passenger compartment of car when quantity of drugs and
cash indicated dealing that a perpetrator would seek to hide from innocents]; People v.
Schmitz (2012) 55 Cal.4th 909, 924 [―the law does not presume that a front seat
passenger has nothing to do with items located elsewhere in the passenger compartment
of a car‖].)
In People v. Hughes (1966) 240 Cal.App.2d 615, for example, police received a
tip about gambling taking place. While standing on the sidewalk outside the reported
location, police heard statements suggestive of gambling emanating from within.
Believing there was a dice game in progress, police approached the apartment door.
Through a crack beneath the doorbell, they observed ―several persons, some standing and
some sitting, engaged in rolling dice and, after the dice throws, passing money among
them.‖ (Id. at pp. 616–617.) The police then arrested the occupants for gambling. (Id. at
p. 617.) The appellate court concluded, ―[t]he language heard by the officers was, itself,
sufficient to give them reasonable cause to believe that the offense of gambling was then
and there being committed.‖ (Ibid.)
Under Pringle, supra, 540 U.S. at pages 371–374, and Hughes, supra,
240 Cal.App.2d at pages 616–617, there was probable cause to arrest defendant for
gambling. He was a part of a distinct, 10-person group standing in a circle around dice
and money. Defendant was not simply near the group—he was not merely walking or
parked nearby. Rather, he was an integrated part of it. The police thus had a reasonable
basis for believing defendant was engaged in gambling.
Furthermore, the police observed more than the discrete group of men around the
dice and money. When the officers approached, the men fled, including defendant.
While merely walking away from an officer is not a basis for a detention or arrest,
running from a scene where unlawful activity is occurring does, indeed, add to the
calculus of probable cause for arrest. (See People v. Allen (2000) 78 Cal.App.4th 445,

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450; People v. Watkins (1994) 26 Cal.App.4th 19, 28; People v. Mims (1992)
9 Cal.App.4th 1244, 1249.)
Accordingly, given the totality of the scene the officers observed, including
defendant‘s flight, there was ample probable cause for his arrest.
Warrantless Search
It has long been recognized that certain searches incident to a lawful arrest do not
require a warrant. However, about a year after defendant‘s arrest and search of his cell
phone, and after the trial in this case, the United States Supreme Court, in Riley v.
California (2014) __ U.S. __ [134 S.Ct. 2473, 2482–2484] (Riley), addressed ―how the
search incident to arrest doctrine applies to modern cell phones.‖ (Id. at p. 2484.) The
court concluded the typical justifications for such searches, avoiding harm to officers and
preserving evidence, do not justify the search of a cell phone‘s digital contents. (Id. at
pp. 2484–2485.) Accordingly, the court held a warrant is generally required before
reviewing data from a seized cell phone. (Id. at p. 2485, 2493.) Thus, on appeal,
defendant argues that, under Riley¸ the warrantless search of his cell phone was unlawful,
even assuming his arrest was lawful.
Although Riley holds a warrant must generally be obtained to search cell phone
data, that does mean the exclusionary rule necessarily applies in this case. The rule is a
judicially-created penalty meant to deter police misconduct. Courts will not apply it to
exclude the fruits of ―searches conducted in objectively reasonable reliance on binding
appellate precedent,‖ even if that precedent is ―later overruled.‖ (Davis v. United States
(2011) __ U.S. __ [131 S.Ct. 2419, 2423–2424].) For such ―good faith‖ searches,
―suppression would do nothing to deter police misconduct . . . and . . . would come at a
high cost to both the truth and the public safety.‖ (Id. at pp. 2423, 2428.)
Here, there was precedent allowing cell phone searches incident to a lawful arrest,
namely People v. Diaz (2011) 51 Cal.4th 84 (Diaz). This decision by the California
Supreme Court, which was good law at all times relevant to defendant‘s case, held,
―under the United States Supreme Court‘s [then] binding precedent‖ the warrantless
search of the contents of an arrestee‘s cell phone was valid, finding ―no legal basis for

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distinguishing the contents of an item found upon an arrestee‘s person from either the
seized item itself.‖ (Id. at pp. 93, 99, 101.)
Defendant nevertheless contends Diaz was not ―binding‖ appellate precedent
because one federal district court, in an unpublished decision in 2007, reached the
opposite conclusion and ruled a cell phone could not be searched without a warrant.
(United States v. Park (N.D. Cal., May 23, 2007, No. CR 05-375SI) 2007 WL 1521573,
at *7–*8 (Park)). Whether the California Supreme Court‘s 2011 decision in Diaz can
underpin a good faith exception to the exclusionary rule is currently before our Supreme
Court. (People v. Macabeo (2014) 229 Cal.App.4th 486, review granted Nov. 25, 2014,
S221852.)
At this juncture, we agree with the federal district courts, including the same
district that decided Park, that Diaz, indeed, justifies invocation of the ―good faith
exception‖ to the exclusionary rule in cases predating Riley. (See, e.g., United States v.
Garcia (N.D. Cal. Sept. 12, 2014, No. 13-CR-00601-JST-1) __ F. Supp.3d __ [2014 WL
4543163, at *6–*7] (Garcia) [―Diaz provide[d] sufficient ‗binding appellate precedent‘ ‖
to California police]; United States v. Peel (E.D. Cal. Aug. 25, 2014, No. 2:14-CR-
00192-GEB) 2014 WL 4230926, at *7 [same].)
As Davis, itself, explains, a state‘s highest court may issue binding appellate
decisions on Fourth Amendment questions. (Davis, supra, 131 S.Ct. at p. 2433 [noting
overruled authority will routinely come from a ―State Supreme Court‖].) Indeed, where,
as here, a defendant is arrested by California law enforcement officers and is subject to
California‘s criminal justice system and its state courts, the California Supreme Court‘s
decision in Diaz was unquestionably the applicable authority, and a federal district court
nonpublished ruling did not create a ―split‖ of authority within California. (People v.
Cleveland (2001) 25 Cal.4th 466, 480 [California courts are not bound by ― ‗ ―lower
federal courts, even on federal questions‖ ‘ ‖]; see also Garcia, supra, 2014 WL 4543163
at p. *6 [rejecting argument Diaz was non-binding in federal court when investigation
done by state law enforcement for likely prosecution in state court]; United States v.

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Wilford (D. Md. 2013) 961 F.Supp.2d 740, 764 [state court decision binding given state
involvement in investigation].)
It is, moreover, entirely reasonable for California to train its law enforcement
personnel to follow the directives of our Supreme Court, until told otherwise by either
that court or the United States Supreme Court. (Davis, supra, 131 S.Ct. at p. 2429
[―when 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‖].)
In sum, we cannot say the police in this case exhibited the kind of ― ‗deliberate,‘
‗reckless,‘ or ‗grossly negligent‘ disregard for Fourth Amendment rights‖ the
exclusionary rule is meant to punish and deter. (Davis, supra, 131 S.Ct. at p. 2427.) This
―absence of police culpability dooms [defendant‘s] claim.‖ (Id. at p. 2428.)
Denial of Continuance
During trial, specifically on July 9, 2013, the prosecution put into evidence a
report showing a woman named Chanelle Henley was the registered owner of the Glock
found at the gambling scene in April 2013, but it had been reported as stolen nearly a
year before that incident. Defense counsel was unsure whether the report had been
presented at the April 29, 2013, preliminary hearing. But it apparently had been, and
defendant has not challenged this fact on appeal. In any case, after seeing the report at
trial, defendant thought he recognized Henley‘s name and asked defense counsel to
investigate. An investigation uncovered Henley was dating, at the time of defendant‘s
arrest and trial, Dorian Mathis, another one of the individuals apprehended at the
gambling scene.
Six days after the ownership evidence was introduced, defense counsel informed
the trial court Henley had been subpoenaed to testify. Later that afternoon, the prosecutor
disclosed Henley was the subject of an ongoing criminal investigation and stated he
intended to ask inculpatory questions while attempting to impeach her on cross-
examination. At an Evidence Code section 402 hearing outside the presence of the jury
the next day, July 16, it was conceded Henley would testify about her ownership of the

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gun and her relationship with Mathis. The trial court then invited the prosecutor to
question the potential witness. Henley asserted her Fifth Amendment right to not
incriminate herself, and the trial court ruled Henley could therefore not be fairly called as
a defense witness.
Defendant then asked for a continuance of the trial to get Henley‘s certified DMV
records to show to another, yet unknown, witness who could match Henley with the
Henley on the gun ownership documents and describe her relationship with Mathis.
Defendant acknowledged the lateness of the request, but argued Henley‘s name had not
struck him as important until he saw it during the preceding week of trial and he had
learned Henley would likely invoke the Fifth Amendment only the day before.
Defendant believed he could have a witness ―shortly,‖ but it would take about five days
to get DMV records. The prosecutor objected on the basis of relevance. The trial court
denied the request for a continuance, mainly because it viewed the proffered testimony as
lacking sufficient relevance, given the report stating the gun had been stolen before the
incident. The trial court thought any questions regarding the theft and Henley as a sham
purchaser would confuse the jury.
― ‗A motion for continuance should be granted only on a showing of good cause.
(§ 1050, subd. (e).)‘ [Citation.] To support a continuance motion to secure a witness‘s
attendance at trial, a showing of good cause requires a demonstration, among other
things, that the defendant exercised due diligence to secure the witness‘s attendance.‖
(People v. Wilson (2005) 36 Cal.4th 309, 352.)
― ‗[T]he decision whether or not to grant a continuance of a matter rests within the
sound discretion of the trial court. [Citations.] The party challenging a ruling on a
continuance bears the burden of establishing an abuse of discretion, and an order denying
a continuance is seldom successfully attacked. [Citation.] [¶] Under this state law
standard, discretion is abused only when the court exceeds the bounds of reason, all
circumstances being considered. [Citations.] Moreover, the denial of a continuance may
be so arbitrary as to deny due process. [Citation.] However, not every denial of a request
for more time can be said to violate due process, even if the party seeking the

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continuance thereby fails to offer evidence. [Citation.]‘ (People v. Beames (2007)
40 Cal.4th 907, 920–921 . . . .) ‗[T]he trial court may not exercise its discretion ‗so as to
deprive the defendant or his attorney of a reasonable opportunity to prepare.‘ [Citation.]‖
(People v. Doolin (2009) 45 Cal.4th 390, 450 . . . .)‘ ‖ (People v. Fuiava (2012)
53 Cal.4th 622, 650.)
Even assuming a witness testifying as defendant hoped would provide relevant
evidence—perhaps suggesting Mathis, not defendant, might have been the individual
who possessed the Glock found on the evening of April 9, 2013—the problem here is that
no such witness was known or identified on July 16 when defendant sought a
continuance. Nor did defendant exercise due diligence to discover and secure such a
witness‘s attendance after the report identifying Henley as the registered owner was
introduced on April 29, 2013, at the preliminary hearing. (People v. Howard (1992)
1 Cal.4th 1132, 1171 (Howard) [denial of continuance proper for two reasons: no
evidence a witness existed who could offer the hoped-for testimony and lack of
diligence].) Defendant had more than two months to investigate the significance of
Henley‘s ownership and the reported theft of the Glock, and he could hardly have been
surprised that Henley refused to provide testimony against herself or her supposed
boyfriend. In addition, a midtrial continuance of five days at a minimum would
inconvenience the jurors. (People v. Fuiava, supra, 53 Cal.4th at p. 651.) Accordingly,
the trial court‘s denial of a continuance was not an abuse of discretion.
Nor ―did the court‘s ruling deny defendant his federal constitutional rights to due
process and compulsory process.‖ (Howard, supra, 1 Cal.4th at p. 1171.) ―In this case,
defendant could not show that he had been diligent in securing an expert witness's
attendance, that a substitute would be available within a reasonable time, or that any
witness, assuming one could be found, would say something material and helpful to the
defense. Under these circumstances, ‗[g]iven the deference necessarily due a state trial
judge in regard to the denial or granting of continuances,‘ the court‘s ruling does not
support a claim of error under the federal Constitution.‖ (Id. at p. 1172; see also People
v. Wilson, supra, 36 Cal.4th at p. 352.)

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DISPOSITION
The judgment is affirmed.
_________________________
Banke, J.
We concur:
_________________________
Humes, P. J.
_________________________
Margulies, J.

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