People v. Lowe CA5
F082437
Cal. Ct. App.Jan 27, 2023Background
- Police observed a Honda parked in a dirt lot behind a closed business in a high‑crime area; a woman (known not to own a car) exited the driver’s side and a man (later identified as Russell Lowe) was bent into the front passenger floorboard.
- Officers ran registration (expired) and checked Lowe’s probation status; dispatch/NCIC showed Lowe on felony probation with a search‑and‑seizure condition.
- Officers searched the vehicle and a black backpack on the front passenger seat (within Lowe’s reach) and found a .20‑gauge sawed‑off shotgun and shells; Lowe admitted ownership.
- Lowe was convicted of felon in possession of a firearm (§ 29800) and possession of a short‑barreled shotgun (§ 33215); he admitted a prior strike and the court found a separate probation violation.
- Trial court denied Lowe’s suppression motion, denied his Romero motion to strike the prior strike, sentenced him to 2 years 8 months (double the low term for the strike), imposed a $300 restitution fine, and waived certain assessments for inability to pay.
- Lowe appealed, challenging the suppression ruling, the Romero denial, and the restitution fine (and alternatively claiming ineffective assistance for failing to object). The Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to suppress: detention | Officers had reasonable suspicion to detain based on totality (high‑crime area, vehicle parked at closed business, person in floorboard, known nonowner driver, registration info) | Officers lacked reasonable suspicion and detention/search were unlawful | Affirmed: detention supported by reasonable suspicion under totality of circumstances |
| Motion to suppress: search of backpack | Search lawful under probation search condition; officers knew Lowe was on probation and subject to searches | Search exceeded scope of probation condition and officer’s belief was not objectively reasonable | Affirmed: search was authorized—court took judicial notice of probation file showing a broad "person and property" search condition; backpack was within Lowe’s control |
| Romero motion to strike prior strike | Trial court properly exercised discretion given defendant’s significant juvenile and adult record, failed treatment participation, recidivism risk, and potential for future violence | Court relied on irrelevant facts, speculative links (meth use → violence), improperly considered juvenile history, and misapplied standard | Affirmed: no abuse of discretion; court balanced relevant factors and did not misapply the law |
| Restitution fine & ineffective assistance | Issue forfeited — defendant failed to object below; restitution fine was statutory minimum and assessments were waived for inability to pay | Dueñas requires an ability‑to‑pay hearing; counsel ineffective for not objecting | Affirmed: challenge forfeited; no ineffective assistance shown given unsettled law and authority treating restitution fines as punitive |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968) (Fourth Amendment stop‑and‑frisk/reasonable suspicion)
- United States v. Sokolow, 490 U.S. 1 (U.S. 1989) (reasonable‑suspicion totality of circumstances)
- Ornelas v. United States, 517 U.S. 690 (U.S. 1996) (defer to trial court factfindings; independent review of legal question)
- People v. Romeo, 240 Cal.App.4th 931 (Cal. Ct. App. 2015) (scope of probation search clause must be shown to justify warrantless search)
- People v. Carmony, 33 Cal.4th 367 (Cal. 2004) (standard for striking prior strikes under Romero)
- People v. Dueñas, 30 Cal.App.5th 1157 (Cal. Ct. App. 2019) (due‑process argument for ability‑to‑pay before imposing assessments/fines)
- People v. Kopp, 38 Cal.App.5th 47 (Cal. Ct. App. 2019) (discussion of ability‑to‑pay and excessive‑fines analysis; review granted)
- People v. Medina, 158 Cal.App.4th 1571 (Cal. Ct. App. 2007) (probationer’s consent to searches and limits on harassment/arbitrary searches)
- People v. Schmitz, 55 Cal.4th 909 (Cal. 2012) ("control" for search‑condition purposes means mere physical access)
- People v. Son, 49 Cal.App.5th 565 (Cal. Ct. App. 2020) (restitution fines as punitive; discussion of ability‑to‑pay challenges)