Filed 2/15/24 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v. KEVIN EUGENE CARTWRIGHT,
Defendant and Appellant. D080606
(Super. Ct. No. SCD279043)

ORDER MODIFYING OPINION AND DENYING REHEARING

NO CHANGE IN JUDGMENT

THE COURT:
It is ordered that the opinion filed January 2 5 , 2024 be modified as
follows:
1. Delete t he first sentence at the top of page 7 that begins , “Further, the still images,” and replace it with the following two sentences : Further, the still images included in the record from the City’s cameras are not dissimilar in scope to the views obtained from the private security camera behind the clothing shop. They effectively capture the same scene from a different angle.

2. The two images on page 7 are deleted and replaced with the below images in the following order:2

The petition for rehearing is denied.
There is no change in judgment.
HUFFMAN, Acting P. J.
Copies to: All partiesFiled 1/25/24 (unmodified opinio n)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v. KEVIN EUGENE CARTWRIGHT,
Defendant and Appellant. D080606

(Super. Ct. No. SCD279043)

APPEAL from a judgment of the Superior Court of San Diego County,
Frederic k L. Link and Eugenia Eyherabide, Judges. Affirmed. Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant and Appellant.
Ro b Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Junichi Semistu and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.2

A jury convicte d Kevin Eugene Cartwright of first degree murder with special circumstances (Pen. Code , 1 §§ 187 , subd. (a), 190.2 , subd. (a)(17)), robbery (§ 211), burglary (§ 459), being a felon in possession of a firearm (§ 29800 , subd. (a)(1)), and being a prohibited person owning or possessing ammunition (§ 30305 , subd. (a)(1)). Cartwright admitted to eight strike priors and received a sentence consisting of an indeterminate prison term of life without the possibility of parole plus 50 years to life, and a determinate prison term of 20 years four months. The sole issue on appeal is whether the trial court erred in den ying Cartwright’s motion to suppress video footage from the City of Sa n Diego ’s (City) “City IQ” streetlight camera program and evidence derived from that footage. We conclude that it did not and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND
In the early morning on October 9, 2018, Cartwright entered an adult

c on tent store and theater in San Diego with a firearm drawn , directed the cashier to open the register , and stole the money it contained . When he was unsuccessful in restraining the cashier with zip ties, Cartwright sent him into the theater room. There, th e cashier opened the emergency exit, ush er ed customers outside, and called the police. The following day, October 10 , Lorena Espinoza 2 got out of Cartwright’s gold GMC Yukon wearing a purple wig and dark sunglasses. She entered a flooring store in downtown San Diego and led G.R., the owner

1 All undesignated references are to the Penal Code.
2 Espinoza , Cartwright’s codefendant, entered a plea of guilty to second degree murder and admitted a firearm allegation to be true; the court sentenced her to a term of 15 years to life plus one year.3

and operator, towards the back of the store

. Shortly thereafter , Cartwright emerged from the Yukon wearing a granny mask and sunglasses. He entered
the store and incapacitated G.R

. first by kicking him and then shooting him three times, inflicting two gunshot wounds and one graze wound. G.R. died
as a result of these wounds. Cartwright returned to the front of the store with a prybar , which he used to open the register

. Cartwright and Espinoza then left the flooring
business

. Espinoza returned to the Yukon and drove it away. Cartwright walked behind a nearby clothing store and removed his mask , a n action captured by the store’s security camera

. He then used two different white
sedans to leave the area.
An investigating detective accessed the City IQ streetlight camera footage

. The cameras are not “situated so they could peer into businesses or residences” and capture only the “public right of way.” The y are fixed position and located throughout downtown San Diego and other parts of the city

. The devices capture “ environmental data, like temperature, humidity,

pressure,

. . . traffic data, like car speeds, car counts, pedestrian data, bicycle data, and even video data.” The video feature creates high quality wide lens footage , but the devices do not record sound and do not act as gunshot
detectors because the City did not “enable the microphones

. ” Footage is stored on each camera’s hard drive for five days; if it is not retrieved within
five days, the camera records over the footage.
Video from the streetlight cameras revea led which vehicle Cartwright and Espinoza drove to the flooring store

. Querying Department of Motor
Vehicle records disclosed Cartwright as the owner of the vehicle. Police arrested Cartwright and, in a subsequent search, found evidence linking him4

to bo th the robbery of the adult store , and the robbery and homicide at the flooring store. Cartwright moved to suppress the evidence obtaine d as a result of the streetlight camera footage

. The trial court denied his motion.

DISCUSSION
Cartwright contends the police conducted a warrantless search when they accessed streetlight camera footage maintained by City. He further asserts that, but for this alleged improper search, the police wou ld not have learned his identity and, consequently, evidence that resulted from the streetlight camera footage is fruit of the poisonous tree. The standard of review of a trial court’s ruling on a motion to suppress
is well established. ( People v. Glase r (1995) 11 Cal.4th 354, 362.) On appeal, we examine whether the trial court’s factual findings are supported by
substantial evidence. ( Ibid. ; People v. Camacho (2003) 23 Cal.4th 824, 830.) We then exercise our independent judgment in determining whethe r a search
occurred and was reasonable under the Fourth Amendment. ( Camacho , at

p. 830.) The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.)
It “ protects an individual’s reasonable expectation of privacy against unreasonable intrusion on the part of the government.” ( People v. Jenkins (2000) 22 Cal.4th 900, 971.) To successfully claim Fourth Amendment protection, “ ‘a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.’ ” ( Jenkins, at p. 972.) “ ‘In other words, the defendant must show that he or she had a subjective expectation of privacy that was objectively reasonable.’ ” ( People v. Ayala (2000) 23 Cal.4th 225, 255.)5

Applying these principles, we conclude Cartwright did not have an objecti vely reasonable expectation of privacy when he traversed a public right of way in
downtown San Diego in the middle of a business day. Cartwright relies upon Carpenter v. United States (2018) 138 S.Ct. 2206 ( Carpenter ) and Leaders of a Beautiful Struggle v. Balt

. Police Dep ’ t ( 4th
Cir. 2021) 2 F.4th 330 ( Beautiful Struggle ) to argue that he had an objectively reasonable expectation of privacy. He suggests that accessing the recordings from the City’s streetlight cameras amounted to a search within the mea ning
of the Fourth Amendment and, consequently, required a warrant. Cartwright’s reliance on this precedent is misplaced

. The United States Supreme Court in Carpenter court addressed the
warrantless collection of cell

- site location information and its subsequent use in reconstructing a suspect’s movement over the course of 127 days. ( Carpenter, supra , 138 S.Ct. at p. 2212

. ) This information linked Carpenter
to a series of robberies and led to his conviction. ( Id. at p. 2213

. ) The Court
held that t he government’s acquisition of the cell

- site records invaded Carpenter’s reasonable expectation of privacy and constituted a search in
violation of the Fourth Amendment

. ( Id. at p p

. 2219, 2223 .) Maintaining the special lev el of privacy for cell phones set forth in Riley v. California ( 2014 )
573 U.S. 373 , 403, which held cell

- site records “hold for many Americans ‘the privacies of life’ ” ( i d. at p. 2213, quoting Boyd v. United States (1886) 116 U.S. 616, 630 ) , the Court concluded that a person “does not surrender all Fourth Amendment protecting by venturing into the public sphere. ” ( Carpenter, at p. 2217.)
In Beautiful Struggle
, the Fourth Circuit’s en banc decision applied the
United States Supreme Court’s reasoning in Carpenter to an aerial surveillance program operated by the c ity of Baltimore. ( Beautiful Struggle,6

supra , 2 F.4th at p p

. 339

– 345 .) The city of Baltimore collected both
traditional surveillance data and aerial photographs. ( Id . at p. 334 .) When combined, the police could effectively track someone’s every movement throughout the city retroactive ly over a 45

- day period

. ( Id. at pp. 34 5

– 346.)
This integrated surveillance , the Fourth Circuit concluded, was an incursion into privacy directly comparable to the cell

- site location information access ed
in Carpenter. ( Beautiful Struggle, at pp. 345

– 348.)
N either Carpenter nor Beautiful Struggle can be read to indicate that the review of footage from the streetlight cameras in this case amounts to a search subject to a warrant requirement. T he United States Supreme Court
in Carpenter specifically indicated that its holding was intended to be narrow and did not extend to “conventional surveillance techniques and tools, such as security cameras.” ( Carpenter, supra , 138 S.Ct. at 2220.) Recordings from cameras, such as the ones that captured Cartwright’s movements in the
downtown urban environment in the middle of a weekday, do not rise to the

same “unique nature of cell phone location records.” ( Carpenter, at p. 2217.) Indeed, “ ‘[a] person traveling

. . . on public thoroughfares has no reasonable expectation of privacy in his m ovements from one place to another.’ ” ( Id . at p. 2215, quoting United States v. Knotts (1983) 460 U.S. 276, 281 , 282 .) Indeed, as t he court in Beautiful Struggle acknowledged , “ P eople understand that they may be filmed by security cameras on city streets

. ” ( Beautiful Struggle, supra , 2 F.4th at p. 345

. ) This is effectively the same principle Cartwright now argues against. When Cartwright drove his gold Yukon downtown and parked, “the movements of the vehicle and its final destination had been ‘v oluntarily conveyed to anyone who wanted to look,’ ” and Cartwright cannot “ assert a privacy interest in the information obtained.” ( Carpenter, supra , 138 S.Ct.7

at 2215 .) Further, the still images included in the record from the Cit y ’s
cameras are remark ably similar in scope to the views obtained from the private security camera behind the clothing shop :

We note this to demonstrate that Cartwright could not maintain a n objectively reasonable expectation of privacy in the downtown, urban public

space s when any number of private businesses may have maintained similar

cameras that capture similar images

.8

Stationary pole cameras, much like streetlight cameras, only capture “short term ” movements rather than “everyone’s movement s across the city.” ( Beautiful Struggle, supra , 2 F.4th at p. 345.) T hey are “fixed in place , ” “only capture individual trips,” and do not create “a retrospective database of everyone’s movements across the cit y.” ( Ibid. ) Due to these inherent
limitations , stationary cameras merely “augment[ ] ordinary police capabilities.” ( Ibid .) The y modestly supplement and enhance , “to a permissible degree, warrantless capabilities the police had even before the technology.” ( Id. at p. 340, citing United States v. Knotts (1983) 460 U.S. 276,
281

– 2 82 and Kyllo v. United States (2001) 533 U.S. 27, 33

– 35.) We distinguish the camera s in the case before us from both the aerial surveillance images and the integrated Baltimore Police Department systems
addressed in Beautiful Struggle

. There, Baltimore use d software to integrate the “camera network, license plate readers and gunshot det ectors” with the challenged aerial surveillance to “reveal where individuals come and go over an extended period.” ( Beautiful Struggle, supra , 2 F.4th at p. 346

. ) Here, the City’s camera program stands alone; there is no aerial surveillance or even
audio to integrate with the recordings captured by the streetlight cameras.
The cameras , by their very nature and limitations, do not reveal the transit patterns of people throughout the county. The information they capture is all information voluntarily conveyed to anyone in a public space who cares to
look

— something any police officer could have done without a warrant. Cartwright had no objectively reasonable expectation of privacy when
he us ed the public streets and sidewalks downtown in a manner readily observable to passersby

. W e therefore conclude the police did not conduct a

“ search ” when they accessed footage from City’s streetlight cameras and, accordingly, there was no violation of t he Fourth Amendment

.9 DISPOSITION
The judgment is affirmed.

DATO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

CASTILLO, J.