Filed 2 / 3 / 21 P. v. Bell CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. BRANDON LAMAR BELL, Defendant and Appellant. G058309
(Super. Ct. No. 19CF0044)

O P I N I O N

Appeal from a judgment of the Superior Co urt of Orange County, Robert
Alan Knox, Judge. Affirmed.

David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaint iff and Respondent.
* * *2 After his motion to suppress evidence was denied, defendant Brandon
Lamar B ell pleaded guilty to pimping Jane Doe No. 1 (Pen. Code , § 266h, subd. (a) ; count 1) ; 1 p andering by procuring Jane Doe No. 1 ( § 266i, subd. (a)(1); count 2); possession of a concealed loaded unregistered firearm in a vehicle ( § 25400, subds. (a)(1), (c)(6); count 3); pimping Jane Doe No. 2 ( § 266h, subd. (a); count 5); and
p andering by procuring Jane Doe No. 2 ( § 266i, subd. (a)(1); count 6). 2 Per the terms of the plea agreement, the court sentenced defendant to a four

- ye ar prison sentence on count
1. The court also sentenced defendant to four years on counts 2, 5, and 6, and two years
on count 3 , all to run concurrently

.

On appeal defendant raises various contentions related to the denial of his suppression motion. He argues the search warrants issued for the cell phones violated various provisions o f the California El ectronic Communications Privacy Act or 2015 (ECPA) ( § 1546 et seq.) . He also argues the delays between the seizures of the cell phones and the applications for the search warrants violated his righ ts under the Fourth
Amendment of the United States Constit ution. He further contends one of the warrants
was invalid on its face b ecause the warrant included names of people not involved in the case as parties to be searched. Finally, he argues the court improperly sentenced him on
counts 2 and 6 because the se ntences should have been stayed pursuant to section 654
instead of run ning concurrently with count 1 . We reject each contention and affirm.

1 All statutory references are to the Penal Code.

2 The court dismissed c ount 4, possession of a large

- capacity magazine (§ 32310, subd. (c) ) , pursuant to section 995.3 FACTS AND PROCEDURAL HISTORY

O n May 28, 2017, police stopped a car because they suspected prostitution activity

. Defendant was driving the car an d E. was in the passenger seat. Defendant ’ s driver ’ s license had been suspended so the officers searched the car and found a handgun. The officers arrested defendant for possession of the handgun. The officers also took two
cell phones as evidence , one belonging to defendant and one belonging to E

.

O n January 2, 2019, police officers conducted a prostitution sting operation
in which an officer agreed to meet a woman for sex at a hotel. Defendant dropped off the woman pictured in the online advertisement the officer used to set up the date. The

woman , A. , was arrested and admitted to working as a prostitute. Defendant was also
detained and later arrested . Both A. and defendant had cell phones in their possession.
The officers called defendant ’ s cell phone with A ’ s cell phone and defendant ’ s cell phone

“ illuminated wi th the name ‘ Princess

. ’” A third cell phone was discovered in the glovebox of defendant ’ s car.

After acquiring warrants, officers searched all of the cell phones recovered from the May 2017 and January 2019 incidents. Text messages between defendant an d
both E. and A., were recovered from the cell phones and introduced into evidence during
defendant ’ s preliminary hearing.

Defendant filed a motion to suppress “ [ a ] ll electronic communication and
all electronic communication information ” recovered from e ach of the cell phones.

The following evidence was introduced during the hearing on defendant ’ s suppression motion.

Warrants R elated to the May 2017 A rrest

On December 26, 2018 , Detective Valdez prepared an affidavit and request for a search warrant for defendant’s and E. ’ s cell phone s , which had remained in police4

possession since the May 28, 2017 arrest ( December 26, 2018 Warrant) . The warrant
commanded law enforcement officers to “ [p]hysically and forensically search all data
which constit utes evidence and instrumentalities of Pimping, Pandering and Prostitution occurring between [1 year before date of arrest

— date of arrest], including communications referring or relating to this investigation involving [defendant] and [E.] ”
In the warrant affidavit , Valdez also requested that the warrant authorize delayed
notification of the search to defendant and E. : “ D ue to the fact that [E.] is out of custody and because cellular phone data has the ability to be remotely deleted/wiped, I believe disclosure of the aforementioned information and making it public record will lead to possible destruction of the phones/dev ices used by [defendant] and [E.] Additionally, providing notification could likely result in [E.] absconding to avoid detection/ar rest. ” The warrant was signed on the same day it was requested and it allowed for delayed
notification of the search to defendant and E

.

Durin g cross

- examination, Valdez stated that at the time she wrote the affidavit, she did not “think [the cell phon e ] would be wiped.” She then clarified that she

meant : “ I didn ’ t think she would wipe out the phone. Or she had wiped it out at the time
I wrote the warrant. ” Valdez said she had not understood the initial question and she

“ honestly didn ’ t know what to think with regards to the phone because

— that ’ s why we were writing the warrant. We didn ’ t know what was in there. ” She said she was concerned E. would wipe the phone if she was given notification that information on the
cell ph one was about to be extract ed. Although she had asked for delayed notification,
Valdez nevertheless sent notice of the search pursuant to the search warrant to defendant and E. the day before the extractions of data from the phones began.

In July 2019, Detective Hawkins replaced Valdez on the investigation and
wrote an almost identical warrant for a search of the same cell phones (July 17, 2019 Warrant) . The scope of the warrant was identical to the December 26, 2018 Warrant

. The second warrant also sought delayed notification and used the exact same wording as5

justification for the delay as had the previous warrant. The warrant was signed by the magistrate on the same day it was requested . The notice of the search pursuan t to the

warrant and the extraction of data from the cell phones both happened that day.

Warrants R elated to the January 2019 A rrest

Seven days after defendant ’ s January 2, 2019 arrest, Detective Speakman prepared a search warrant ( January 9, 2019 Warr ant ) for A ’ s phone, the phone found on
defendant ’ s person, and the phone found in defendant ’ s car. The warrant commanded
law enforcement officers to “ [p] hysically and forensically search all data which constitutes evidence and instrumentalities of pimping , pandering, human trafficking, and prostitution, including communications referring or relating to this investigation involving [J.L. and M.M. ] ” Speakman used a template in preparing the warrant and mistakenly left the names from the template in the warr ant

.

The affidavit of probable cause for the warrant described defendant ’ s ar rest and referred to him as “S

- Bell.” A. was referred to as “ V

- DOE. ” The conclusion of the
affidavit stated , “ Based on my training, and experience, it is my belief that information obtained from the cellphones will support the charges against Brandon Bell

. ” It also
stated , “ A cell phone examination can retrieve information, whether deleted or undeleted,
which can assist with this i nvestigation and show a fel ony was commi tted by Brandon
Bell

. ”
The affidavit also s tated, “ The download process is automated and forensic examiners are not able to manipulate the information extracted or to restrict the information being extracted to a particular date range. ” “ Further, I beli eve based on my training and experience that information prior to the date range of this crime, will show the suspect ’ s knowledge of prostitution activity, how and where to recruit women or girls into prostitution, and terminology or information related to the pimping/prostitution
subculture. ” Speakman’ s affidavit asked the court “ to determine that, based on the nature6

of this case, it is not appropriate or reasonable to specify the time periods of information
to be extracted from the device ( s )

. . . . ” T he extraction of data from all of the cell phones recovered in the January 2, 2019 arrest occurred in January 2019.

On July 15, 2019, Speakman rewrote the search warrant , correcting the
erroneous inclusion of the template names (July 15, 2019 Warrant)

. Another extraction
of data from one of the cell phones recovered in the January 2, 2019 arrest w as performed the day before the hearing on defendant ’ s motion to suppress.

DISCUSSION

We review the court’s decision to deny defe ndant’s suppression motion for
substantial evidence supporting the findings on questions of fact and apply the de novo
standard of review to the court’s conclusions on questions of law. ( People v. Carter (2005) 36 Cal.4th 1114, 1140.)

The ECPA
The ECPA (§ 1546 et seq. ) regulates the government ’ s access to a private party ’ s electronic information. Section 1546.1 subdivision (a)(3) generally prohibits

“ Access[ing] electronic device information by means of physical interaction or electronic
communicati on with the electronic device. ” However, section 1546.1(c)(1) allows for
access to electronic device information with a search warrant.

Section 1546.1, subdivision (d)(1) provides : “ The warrant shall describe with particularity the information to be sei zed by specifying, as appropriate and reasonable, the time periods covered, the target individuals or accounts, the applications or services covered, and the types of information sought . . . . ” ( Ibid .) However, the time periods do not need to be specifi ed if the court “ determine[s] that it is not appropriate to7

specify time periods because of the specific circumstances of the investigation, including, but not limited to, the nature of the device to be searched. ” ( Ibid .)

Section 1546.2, subdivision (a)(1) requires the governmental entity seeking the warrant to provide written notice to the identified targets of the warrant

“ contemporaneously with th e execution of a warrant. ” The party seeking the warrant may request to de lay notification v ia a sworn affidavit. ( Id ., subd. (b)(1). The court shall grant the request to delay notification “ if the court determines that there is reason to believe that notification may have an adverse result, but only for the period of time tha t the court finds there is reason to believe that the notification may have that adverse result, and not to exceed 90 days. ” ( Ibid. )

“ Upon expiration of the period of d elay of the notification ” the government entity must serve the identified targets of the warrant with written notice which meets the requirements of section 1546.2(a)(1) as well as “ a copy of all electronic information obtained or a summary of that information . . . . ” (§ 1546.2, subd. (b)(3).)

Section 1546.4, subdivision (a) allows a defendant to “ move to suppress any electronic information obtained or retained in violation of the Fourth Amendment to
the United States Constitution or of this chapter [the ECPA]. ” A motion made under this
subdivision is “ subject to review in accordance w ith the procedures set forth in subdivisions (b) to (q) , inclusive, of S ection 1538.5. ” ( Ibid .)

Finally section 1546.4, subdivision (c), provides: “ An individual whose information is targeted by a warrant

. . . that is inconsistent with this chapter,

. . . may petition the issuing court to void or modify the warrant,

. . . or to order the destruction of any information obtained in violation of this chapter

. ”

The First Alleged ECPA Violation

— The December 26, 2018 Warrant

Defendant first argues the December 26, 2018 W arrant did not meet the requirements for delayed notification under section 1546.2 , subdivision (b)(1) because8

there was “ no reason for the court to believe that contemporaneous notification might
have an ‘ adverse result

. ’”

D efendant is not arguing that contemporaneous notice of the December 26,
2018 W arrant was not in fact given. That argument , had it been made, would be fruitless because substantial evidence supports a finding that Valdez served the required notice contemp oraneously with issuance of the warrant

. Referring to the warrant issued on
December 26, 2018. Valdez testified as follows:

“Q So that same day, you got the warrant, and that s ame day you sent
notification

— “A Uh

- huh. “Q Is that a yes?
“A Yes.

“ Q That same day you sent the notification

— “A Correct. “Q You sent the notice on the 26th. “A Uh

- huh, yes.” Instead, d efendant argues that the mere request for delayed notification was faulty and for that reason alone the evidence extracted from the cell phones the next day must be suppressed. Defendant does not ground this argument on the Fourth
Amendment . He relies on section 1546.4, subdivision s (a) and (c) which provide a remedy to a tar geted person to move for suppression of evidence and petition for the destruction of evidence seized in “violation of this chapter.” ( Id ., subd. (c).) Defendant

construes a n unnecessary request for delay ed notice as a “ violation of this chapter ” thereby requiring the destruction of the evidence , even though law enforcement did not actually delay the notice . Nonsense. We constr ue a “ violation of this chapter ” to mean the seizure of evidence without compliance with the substantive requirements of the
ECPA , not a mere unnecessary request for delayed notification

.9 Thus, s ubstantial evidence supports law enforcement’s substantive compl iance with the notice requirements of section 1546.2, subdivision (a)(1)

. 3

The S econd Alleged ECPA Violation

– t he January 9, 2019 and July 15 Warrants

Defenda nt argues the warrants prepared by Speakman did not meet the
EPCA ’ s requirement of specifying the date range o f information to be searched. However, Speakman ’ s affidavit explained: (1) it was not practicable to specify a date range based on the nature of the devices involved , and (2) he believed that information
relevant to defendant ’ s knowledge of prostitution and practice in manipulating women would likely be found outside of the date range for the crimes b eing investigated

.

Defendant does not address the second justification and asserts the first justification “ has little credibility ” because Valdez had specified a date range in her request for a warrant. However, just because a different officer request ed a search
warrant for different cell phones and specified a date range for the requested warrant does
not invalidate the rationale for not specifying a date range as outlined in Speakman ’ s affidavit. No evidence was presented that contradict ed Speakma n ’ s concerns that a date
range should not be specified

. And Speakman ’ s second reason was sufficient for the
court to determine that th e investigation of defendant’s conduct should not be limited to a specific date range. (§ 1546.1, subd. (d)(1).)

3 Defendant also argues the government violated the ECPA by failing to provide defendant the number and types of records discovered after the end of the delayed notice period as required by section 1546.2 , subdivision (b)(3). But defendant does not provide a record reference for this contention and we have not independently found any evidence in the record that the government failed to meet this requirement.10

The D elay in Applying for the Search Warrants

Defendant argues the evidence should be suppressed because of the delay
between the seizure of the cell phones and law enforcement’s applications for the

warrants. 4 We disagree.

A seizure that is “ lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory
interests. ” ( United States v. Jacobsen (1984) 466 U.S. 109, 124). An unreasonable delay
between th e seizure of property and the police seeking a warrant can violate a defendant ’ s Fourth Amendment rights. ( United States v. Van Leeuwen (1970) 397 U.S. 249, 252

- 253.) Defendant cites several federal cases as persuasive authority that the delays
in seek ing the warrants in this case were unreasonable

. U.S. v. Pratt (4th Cir. 2019) 915
F.3d 266 ( Pratt ) is the most a nalogous to the instant case. In Pratt , the Federal Bureau of Investigation suspected the defendant was “ running a prostitution ring that included juveniles. ” ( Id. at p. 269.) Federal agents seized the defendant ’ s cell phone and waited 31 days before seeking a search warrant. The only justification offered for the delay was
that the defendant was believed to have committed crimes in two s tates, and the officers
needed to decide where to seek the warrant. ( Id . at p. 270.)

The United States Court of Appeals, Fourth Circuit held the delay violated
the defendant ’ s possessory interest in his cell phone without sufficient justification. ( Pra tt , supra , 915 F.3d at p p . 272

- 273.) The court explained th e decision on where to
seek a warrant should not have taken a month ; the officers had not justified their lack of diligence. ( Id. at p. 272

. ) The court also rejected “ the government ’ s alternative argument that it could retain the phone indefinitely because it had independent evidentiary value,

4 There was an 18

- month delay between the May 28, 2017 arrest and the December 26, 2018 W arrant and a seven

- day delay betw een the January 2, 2019 arrest and the January 9, 2019 warrant.11

like a murder weapon. Only the phone ’ s files had evidentiary value. The agents could have removed or copied incriminating files and returned th e phone. ” ( Id

. at p. 273. ) But
there is no indication in the Pratt opinion that the defendant used the cell phone to commit his crimes. The principal information recovered from the cell phone w ere 28 images alleged to be child pornography. ( Id . at p. 2 70.)

As to the cell phone seized from A., t here is nothing in the record to support a conclusion that defendant had any possessory interest in A ’ s cell phone. The
cell phone was found in A ’ s possession and there was no evidence defendant owned the
cell p hone and l oaned it to her.

N o justification was offered for the delay between the seizure of the cell phones and the acquisition of the warrants. But unlike Pratt , the cell phones in this case
had e videntiary value independent of the files within them. During defendant ’ s suppression hearing, Detective Barragan testified to the i mportance of pimps and prostitutes carrying cell p hones while they were working. He explained cell phones were the primary communication tool between a pimp a nd a prostitute and where necessary to
communicate information about the amount of mo ney the prostitute has earned, “ if
there ’ s police in the area

. . . whether [the prostitute] needs help. ” T herefore, the cell phones themselves would be admissible eviden ce at defendant ’ s trial as the
instrumentalities by which defendant pimped his prostitutes . Defendant provides no authority, and we find none, obligating the police to return admissible evidence prior to the disposition of the pending criminal charge for which the evidence was seized.

Th e V alidity of the Speakman Warrant Defendant argues the January 9, 2019 W arrant was invalid because it
included incorrect names when it requested to “ [p] hysically and forensically search all data which constitutes evidence and instrumentalities of pimping, pandering, human12

trafficking, and prostitution, including communications referring or relating to this investigation involving [J.L. and M .M.]” We disa gree.

Section 1525 states, “ A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be
searched. ” Speakman ’ s warrant correctly identified the three cell phones to be
searched and described the cell phones by brand, model num ber, serial number, and
color. The statement of probable cause repeatedly referred to defendant as “ S

- Bell. ”
And the conclusion of the affidavit included the officer ’ s belief “ that information obtained from the cellphones will support charges against Brandon Bell. ” Thus, the
search warrant and attached affidavit both correctly identified the property to be searche d
and identified defendant as the relevant party in the search.

Penal C ode S ection 654

Defendant argues his sentences for counts 2 and 6 (pandering of E. and A., respectively) must be recalled and stayed pursuan t to section 654. We disagree.

Defendant ac cepted a court offer and ple ad ed guil ty to counts 1, 2, 3, 5, and
6. Following the terms of the plea, the court sentenced defendant to four years in state prison on count 1 and, as relevant here, four years on counts 2 and 6 to run concurrently
to count 1

. Defendant did not object to any portion of the sentence.

California Rule of Court , rule 4.412 (b) provides : “ By agreeing to a specified term in prison or county jail under section 1170(h) personally and by counsel, a
defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654 ’ s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record. ” In a case13

procedurally equivalent to thi s case, our Supreme Court upheld the validity of rule 4.412. ( People v. Hester (2000) 22 Cal.4th 290, 296.)

Here, defendant agreed to a specified prison term and received that term.
Thus , California Rules of Court, rule 4.412 preclude s defendant from arguing his
sentence violates section 654.

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.