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Filed 9/20/22 P. v. Johnson CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCUS GARY JOHNSON,

Defendant and Appellant.

 

 A163270

(Solano County Super. Ct. 

No. FCR353742)

Marcus Gary Johnson was convicted of three counts of 

felony identity theft with a prior identity theft conviction (Pen. 

Code, § 530.5, subd. (c)(2); counts one to three)1 and one count of 

forgery (§§ 473, subd. (a), 475, subd. (b); count four). On appeal, 

Johnson challenges the denial of his motions to suppress 

evidence, contends the trial court erred in admitting statements 

he made to police without warnings required by Miranda v. 

Arizona (1966) 384 U.S. 436 (Miranda), and suggests that recent 

ameliorative changes to the determinate sentencing law (§ 1170) 

apply retroactively. The People concede the trial court erred in 

denying one suppression motion and that reversal of Johnson’s 

convictions on counts two, three and four is required. We agree 

and remand for resentencing.

1 Undesignated statutory references are to the Penal Code.
2

BACKGROUND

On July 12, 2019, Johnson was a passenger in a car that 

was stopped for a traffic violation. After the driver (Bagwell) was 

arrested for driving on a suspended license, Bagwell consented to 

a search of the car. In searching the car, Fairfield Police 

Department officer Amanda Graham discovered Johnson was in 

possession of identification cards and other identifying 

information, including an electronic benefit transfer card, that 

belonged to other people. This incident formed the basis for 

count one. 

Ten days later, Johnson was sitting in the passenger seat of 

another parked car. On determining that the owner of the car 

(Dorianna Mays) was on probation with a warrantless search 

condition, Vacaville Police Department officer Matthew Taylor 

conducted a probation search. On the passenger side of the car, 

Taylor found a bag that contained a driver’s license belonging to 

A.D. and four blank checks belonging to B.H. When Taylor asked 

Johnson if the bag was his, Johnson replied affirmatively. 

Johnson was arrested and a search, incident to his arrest, 

revealed that he had a credit card belonging to B.H. in his pocket. 

These facts formed the basis for counts two through four. 

The parties stipulated that Johnson had suffered a prior 

conviction for identity theft. The jury convicted Johnson on all 

three counts of felony identity theft (with a prior identity theft 

conviction) plus one count of forgery. 

At sentencing, the trial court imposed the upper term of 

three years for the principal term—count three—plus a 

consecutive eight-month term (one-third the middle term) for 

each of the two additional identity theft counts (counts one and 

two). The court stayed punishment on count four (forgery). The 

trial court imposed a split sentence (§ 1170, subd. (h)(5)(B)): 

Johnson was to serve the first three years (of his aggregate four 
3

years and four months sentence) in county jail and the remainder 

of his sentence on mandatory supervision. 

 DISCUSSION

A.

Johnson contends that the trial court should have granted 

his motion to suppress evidence discovered on July 12 as fruit of 

an unlawful pat search. We disagree.

1.

In reviewing a suppression ruling, we defer to the trial 

court’s factual findings if supported by substantial evidence. We 

independently determine whether, on the facts so found, the 

challenged search or seizure was reasonable under the Fourth 

Amendment. (People v. Brown (2015) 61 Cal.4th 968, 975.) 

Whether a search is reasonable must be determined based upon 

the circumstances known to the officer when it was conducted. 

(In re H.M. (2008) 167 Cal.App.4th 136, 144.)

During a lawful traffic stop, a police officer may detain both 

the driver and any passengers (and order them out of the car) 

without any additional cause to believe a passenger is involved in 

criminal activity. (Arizona v. Johnson (2009) 555 U.S. 323, 327, 

331 (Arizona); Maryland v. Wilson (1997) 519 U.S. 408, 413, 415.) 

However, to justify a pat search of either the driver or a 

passenger, the police must have a reasonable suspicion that the 

person is “armed and dangerous.” (Arizona, supra, at pp. 327, 

332.)

2.

In his motion to suppress, Johnson argued that he was 

detained and searched, on July 12, without reasonable suspicion 

or probable cause. At the suppression hearing, officer Graham 

testified that she pulled over Bagwell’s Mercedes after observing 

that the car was missing a front license plate and that Bagwell 
4

(the driver) had flicked a cigarette out the window. Johnson was 

sitting in the front passenger seat. 

On making initial contact with Bagwell, Graham 

discovered that he was driving with a suspended license, so she 

removed him from the car and detained him. Graham also 

ordered Johnson to exit the vehicle, pat searched him, and 

ordered him to sit on the curb. Graham admitted that she had no 

reason to believe Johnson was armed or dangerous. 

Bagwell consented to a search of his vehicle. During the

search, a second officer stood near Johnson. Graham found a 

black bag between the car’s center console and the front 

passenger seat. Inside the bag, Graham found personal 

identification cards, electronic benefit transfer cards, printed 

driver’s licenses, and other personal information belonging to 

people other than Johnson or Bagwell. 

Graham asked Bagwell if the bag was his, which Bagwell 

denied. Bagwell said he had never seen the bag before. Graham 

then placed Johnson under arrest. Incident to his arrest, 

Graham searched Johnson and found, in his back pocket, a spiral 

notebook that contained more personal identifying information, 

including a social security number that matched an individual 

whose information was also in the black bag. After Johnson was 

given Miranda warnings, he told Graham that the bag did not 

belong to him. 

At the conclusion of the evidence, defense counsel argued 

that Graham lacked probable cause to arrest Johnson and sought 

only to suppress the notebook found on Johnson’s person. 

Defense counsel did not seek to suppress the evidence found in 

Bagwell’s car. The magistrate denied the motion. 

Johnson later renewed his motion to suppress and filed a 

motion to set aside the consolidated information, pursuant to 

section 995. Johnson insisted he was unlawfully pat searched, 
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but did not connect this assertion to the evidence obtained from 

Bagwell’s car. In fact, Johnson’s arguments continued to focus 

solely on suppressing the notebook discovered incident to his 

arrest. The court denied Johnson’s motion. 

3.

First, we agree with the People that Johnson forfeited his 

current argument—that both the evidence obtained from 

searching Bagwell’s car and the notebook found in Johnson’s 

pocket must be suppressed because Graham conducted an illegal 

pat search of Johnson—by failing to raise it below. (See Evid. 

Code, § 353, subd. (a); People v. Silveria and Travis (2020) 10 

Cal.5th 195, 235; People v. Polk (2010) 190 Cal.App.4th 1183, 

1194-1195.)

Second, even if we assume (for the sake of argument) that 

Johnson’s current argument was not forfeited, and that Johnson’s 

pat search was unlawful, Johnson’s challenge fails because he 

cannot show that an allegedly involuntary search of Bagwell’s car 

violated his personal Fourth Amendment rights. (See Rakas v. 

Illinois (1978) 439 U.S. 128, 133-134 (Rakas).) 

It is settled that a defendant’s Fourth Amendment rights 

are not infringed solely because the state was allowed to 

introduce damaging evidence recovered from a third person’s 

property, even if that search was unlawful. (Rakas, supra, 439 

U.S. at p. 134.) To prevail on a motion to suppress, a defendant 

bears the burden to prove he had a legitimate expectation of 

privacy in the particular area searched or the property seized. 

(Id. at p. 143; People v. Valdez (2004) 32 Cal.4th 73, 122; People v. 

Williams (1992) 3 Cal.App.4th 1535, 1539.)

As a mere passenger in Bagwell’s car, Johnson failed to 

meet his burden to show that he had a reasonable expectation of 

privacy in Bagwell’s car sufficient to show that his personal 

Fourth Amendment rights were violated by an allegedly unlawful 
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consent search. (See Rakas, supra, 439 U.S. at pp. 130-131 & fn. 

1, 148-149; People v. Casares (2016) 62 Cal.4th 808, 835 

[“legitimate expectation of privacy in a vehicle requires a showing 

of a property or possessory interest therein”], disapproved on 

other grounds by People v. Dalton (2019) 7 Cal.5th 166, 214; 

People v. Valdez, supra, 32 Cal.4th at p. 122.) 

Johnson suggests, in passing in his reply brief, that his 

claim is actually that the police illegally searched the black bag 

found inside Bagwell’s car and that he had a legitimate 

expectation of privacy in the bag. (See People v. Schmitz (2012) 

55 Cal.4th 909, 930.) Even if we assume this argument was 

preserved on appeal, the record does not support his position. 

The only evidence offered on this point at the suppression 

hearing was that Bagwell owned the car, that Graham found the 

black bag in between the front passenger seat (where Johnson 

had previously been sitting) and the center console, that the bag 

contained identification cards and other identifying information 

for individuals who were not Johnson, and that both Bagwell and 

Johnson explicitly disavowed ownership of the bag. Unlike in 

People v. Koury (1989) 214 Cal.App.3d 676, 683, 690-691, Johnson 

did not testify that he owned the black bag found in Bagwell’s 

car. Nor did Bagwell or Johnson testify that Johnson had the bag 

with him when he entered the car or otherwise explain how it 

came to rest where it was found. 

Both drivers and passengers have reduced expectations of 

privacy in the interior of a car and its contents. (People v. 

Schmitz, supra, 55 Cal.4th at pp. 920, 930.) Although the bag’s 

location next to the passenger seat in Bagwell’s car is not 

irrelevant (People v. Koury, supra, 214 Cal.App.3d at p. 686), we 

conclude this evidence is insufficient to meet Johnson’s burden to 

establish a legitimate expectation of privacy under the totality of 

the circumstances. 
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Contrary to Johnson’s assertion, there is nothing fatally 

inconsistent in allowing the People to simultaneously maintain 

that Johnson possessed the items in the black bag while also 

arguing Johnson failed to meet his burden to show he had a 

legitimate expectation of privacy. (United States v. Salvucci

(1980) 448 U.S. 83, 91.)

Johnson has not demonstrated that the trial court erred in 

denying his motion to suppress or his section 995 motion. We 

need not separately consider Johnson’s argument that his trial 

counsel provided ineffective assistance. 

B.

Johnson also moved below to suppress certain evidence 

obtained on July 22, pursuant to section 1538.5. He now 

contends that, on that date, officer Taylor violated his federal 

Fourth Amendment rights by prolonging his detention beyond 

the time reasonably necessary to investigate Mays’s traffic 

violation. The People concede that Johnson’s second detention 

was unconstitutionally prolonged and we agree. 

1.

A police detention is a seizure of an individual “strictly 

limited in duration, scope, and purpose[.]” (In re Manuel G.

(1997) 16 Cal.4th 805, 821.) In Terry v. Ohio (1968) 392 U.S. 1 

(Terry), the Supreme Court established that circumstances short 

of probable cause may justify a police officer briefly detaining a 

person for questioning. (Id. at p. 22.) An individual may be 

detained by the police “ ‘if there is an articulable suspicion that a 

person has committed or is about to commit a crime.’ ” (Wilson v. 

Superior Court (1983) 34 Cal.3d 777, 784.) 

Because Terry detentions cannot be subjected to the 

warrant procedure, they are instead tested against the Fourth 

Amendment’s general proscription against unreasonable searches 

and seizures. (Terry, supra, 392 U.S. at p. 20.) Accordingly, 

courts must identify the government interest allegedly justifying 
8

the intrusion and balance that need against the invasion the 

search entails. (Id. at pp. 20-21.) The police officer must point to 

“specific and articulable facts which, taken together with rational 

inferences from those facts,” reasonably justify a particular 

intrusion. (Id. at p. 21, italics added.)

Traffic violations justify a relatively brief investigatory 

detention by police. (Rodriguez v. United States (2015) 575 U.S. 

348, 354 (Rodriguez).) However, absent independent indications 

of criminal activity beyond the initially observed infraction, 

officers may not extend a stop’s duration beyond the time 

reasonably necessary to attend to officer safety concerns and to 

issue a ticket for the traffic violation. (Id. at pp. 350-351, 354.) 

An officer is permitted to inquire into matters unrelated to the 

suspected traffic violation (Arizona, supra, 555 U.S. at p. 333), 

but may not do so in a way that prolongs the stop unless the 

officer also has the reasonable suspicion demanded to ordinarily 

justify an individual’s detention. (Rodriguez, supra, 575 U.S. at 

pp. 355, 357-358.)

2.

Taylor testified, at the suppression hearing, that he 

observed a black Nissan, with an expired registration tag, parked 

in a parking lot. The car’s owner (Mays) was sitting in the 

driver’s seat. Johnson was sitting in the front passenger seat. 

On approaching the vehicle and initially contacting Mays, Taylor 

learned that she was on probation and subject to a warrantless 

search condition. 

After learning of Mays’s probation status, Taylor decided to 

conduct a probation search of her vehicle. Taylor had both Mays 

and Johnson exit the car, pat searched Johnson for weapons, and 

then instructed Johnson to sit at the curb about 15 feet away. 

Another officer stood guard over Mays and Johnson while Taylor 

searched Mays’s vehicle for approximately 23 minutes. 
9

During the search of Mays’s car, Taylor discovered a black 

bag on the floor in front of the passenger seat. The bag contained 

a driver’s license for A.D., blank checks and a credit card in 

B.H.’s name, counterfeit $100 bills, two methamphetamine pipes, 

and a Social Security card, medical records and birth certificate 

belonging to other individuals. After the search, Taylor asked 

Johnson if the bag and its contents belonged to him. Johnson 

answered affirmatively. 

After this evidence was received, defense counsel argued 

that Johnson’s detention was unduly prolonged because Johnson 

had not been the target of the probation search. The magistrate 

denied the suppression motion, explaining that the initial 

detention was lawful based on Mays’s expired car registration 

and that, on discovering Mays was on probation, Taylor was 

authorized to remove and continue Johnson’s detention for the 

more than 20 minutes that Mays’s car was searched. 

Johnson later renewed his motion to suppress and filed a 

motion to set aside the consolidated information (§ 995), which 

the court denied. 

3.

Johnson does not dispute that he was lawfully detained in 

connection with Mays’s traffic violation. (Rodriguez, supra, 575 

U.S. at p. 354; Arizona, supra, 555 U.S. at pp. 327, 331.) 

Although his argument is not a model of clarity, we do not 

understand him to be arguing that his detention was unduly 

prolonged by Taylor’s discovery (during the initial interaction) 

that Mays was on probation and subject to a warrantless search 

condition or by Taylor’s order that Johnson exit the car. 

(Arizona, supra, at p. 333; Maryland v. Wilson, supra, 519 U.S. at 

pp. 413, 415; Rodriguez, supra, at pp. 355, 357-358.) 

Instead, Johnson appears to argue that the Fourth 

Amendment was violated when, after pat searching Johnson and 
10

(apparently finding nothing), Taylor kept him detained for an 

additional 23 minutes while searching Mays’s car. Although 

Taylor was justified in searching the Nissan because he knew of 

Mays’s probation search condition (Samson v. California (2006) 

547 U.S. 843, 846), the People correctly concede that the record 

contains no evidence of an independent basis justifying Johnson’s

continued detention. 

Taylor’s testimony suggests he believed that Johnson’s 

mere presence in Mays’s car (with Mays who was subject to a 

probation search condition) justified detaining Johnson for officer 

safety purposes as long as necessary to conduct the probation 

search. We know of no blanket rule (and the People have not 

cited one) allowing police officers to routinely detain third 

parties—who are not themselves subject to probation search 

conditions—in such a manner. (See People v. Gutierrez (2018) 21 

Cal.App.5th 1146, 1157, 1159-1161 (Gutierrez); People v. Glaser 

(1995) 11 Cal.4th 354, 373-374 (Glaser) [declining to adopt a 

general rule, in the search warrant context, that mere presence 

alone at premises to be searched justifies detention to determine 

identity and connection].) 

In some circumstances when officers conduct a probation 

search or execute a search warrant, the presence of an unknown 

person (not the target of a search) may reasonably justify a brief 

detention of that unknown person—in order to identify the 

unknown person and protect searching officers. (See Glaser, 

supra, 11 Cal.4th at pp. 374-375, 367 [approving limited 

detention of two minutes or less in search warrant context]; 

Gutierrez, supra, 21 Cal.App.5th at pp. 1157, 1160-1161; People v. 

Matelski (2000) 82 Cal.App.4th 837, 852.) However, in refusing 

to adopt a general rule in the search warrant context, our 

Supreme Court reasoned that blanket approval of third party 

detentions during searches would present too much risk that 

officers would simply rely on guilt by association in order to stop 
11

and frisk anyone seen near prospective criminal activity. (Glaser, 

supra, at p. 374.) 

Furthermore, it is now well established that even a lawful 

detention (justified at its outset) becomes unconstitutional when 

it is extended beyond the time reasonably necessary under the 

circumstances without an independent articulable suspicion of 

criminal conduct. (Rodriguez, supra, 575 U.S. at pp. 350-353 

[detention pursuant to traffic stop unreasonably prolonged by 

seven or eight minutes (to obtain sniff by police dog) after 

violation resolved with warning]; Gutierrez, supra, 21 

Cal.App.5th at pp. 1159-1160 [detention of third party present at 

probationer’s home unreasonably prolonged when it lasted more 

than 30 minutes after pat search revealed third party had no 

weapons].) 

We would normally engage in a detailed analysis weighing 

the extent of the government’s intrusion against the 

government’s justifying interests. (See Gutierrez, supra, 21 

Cal.App.5th at p. 1159; Glaser, supra, 11 Cal.4th at p. 365.) 

Here, however, the People concede that the extent of the 

government’s intrusion outweighs any interests justifying 

Johnson’s continued detention. 

We note that Johnson’s challenged detention was not 

particularly brief. It lasted approximately 23 minutes, in a public 

parking lot—subjecting Johnson to potential embarrassment and 

stigma. Three officers were on the scene and one was specifically 

tasked with guarding Mays and Johnson throughout the duration 

of the search. 

Very little sits on the other side of the scale. The People—

who bear the burden of justifying Johnson’s continued 

detention—never presented facts suggesting that they needed to 

determine who Johnson was (or if he was a felon or a gang 

member) to decide if Mays was prohibited from associating with 

him. (Cf. People v. Rios (2011) 193 Cal.App.4th 584, 595; People 
12

v. Matelski, supra, 82 Cal.App.4th at pp. 852-853.) Nor did the 

People develop a record establishing when Taylor found the black 

bag on the passenger-side floorboard, much less argue that this 

discovery justified continued detention of Johnson. (See People v. 

Russell (2000) 81 Cal.App.4th 96, 102.) 

The only reason Taylor gave for the continued detention 

was his need for safety while completing a probation search of 

Mays’s car. Officer safety concerns may, in these circumstances, 

justify a limited detention at the outset. (Gutierrez, supra, 21 

Cal.App.5th at p. 1160.) But, here, Taylor articulated no specific 

facts justifying a pat search and then kept Johnson detained for 

more than 23 minutes after a pat search apparently revealed 

Johnson had no weapons. 

The prosecution failed to meet its burden. On this record, 

we agree with the parties that Johnson’s detention was 

unconstitutionally prolonged in violation of the Fourth 

Amendment. (See Gutierrez, supra, 21 Cal.App.5th at pp. 1160-

1161 [similar detention lasting more than 30 minutes after 

uneventful pat search not justified by specific and articulable 

facts].) The orders denying Johnson’s motions to suppress must 

be reversed.

The People further concede that the remaining evidence is 

insufficient to prove Johnson guilty beyond a reasonable doubt, 

and that it is necessary to reverse Johnson’s convictions on 

counts two though four and remand for resentencing. 

Accordingly, we need not reach Johnson’s additional assertion of 

Miranda error. Likewise, we need not decide whether 

resentencing is independently mandated by the Legislature’s 

recent amendment of section 1170. (See Sen. Bill No. 567 (2021–

2022 Reg. Sess.), Stats. 2021, ch. 731, § 1.3.) On remand, the 

trial court must resentence Johnson in compliance with the 

current determinate sentencing law.
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DISPOSITION

The judgment is reversed in part. Johnson’s convictions on 

counts two through four are vacated, and the matter is remanded 

for further proceedings consistent with this opinion. After 

Johnson is resentenced under the amended version of section 

1170, subdivision (b), the superior court clerk is directed to 

prepare and forward an amended abstract of judgment to the 

Solano County Sheriff’s Department and any other appropriate 

agency. In all other respects, the judgment is affirmed.
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______________________

BURNS, J. 

We concur:

____________________________

JACKSON, P.J.

____________________________

SIMONS, J.

A163270