Filed 4/22/15 P. v. Williams CA4/1 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JOHN WILLIAMS, 

 Defendant and Appellant. 

 D064781 

 (Super. Ct. No. SCD242869, 

 SCD238325) 

 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 
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(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 
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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 
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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. 
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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. 
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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-incidentto-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 
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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 
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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 
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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].) 
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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. 
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 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. 
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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 crossexamination 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 
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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. 
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DISPOSITION 

 The judgment is affirmed. 

HALLER, J. 

WE CONCUR: 

BENKE, Acting P. J. 

O'ROURKE, J.