Appeal from a judgment of the Superior Court of Riverside County, Harold W. Hopp, Judge. Reversed. (Super. Ct. No. INF049447).
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
William Michael Pearl challenges his conviction for one count each of first degree burglary (Pen. Code, § 459 [count 1]) and receiving stolen property (Pen. Code, § 496, subd. (a) [count 2]) on the ground the trial court erred by denying his motion to suppress evidence seized during warrantless searches of his living space. The only justification ever offered by the prosecution for the warrantless searches was that Pearl was on parole and subject to a search condition when the searches were conducted.
We hold the prosecution failed to meet its burden imposed by California law and the Fourth Amendment to the United States Constitution of establishing at the suppression hearing that Pearl was on parole when the warrantless searches were conducted. Penal Code section 3000, subdivision (b)(5) sets a maximum four-year period of parole, extended only by time in which the parolee was a fugitive from justice under Penal Code section 3064. The evidence presented at the suppression hearing established Pearl was released from confinement and placed on parole on December 12, 2000. As a result, his parole expiration date, at the latest, would be December 11, 2004, unless it were shown he had ever been a fugitive from justice during his parole term. The warrantless searches were conducted on December 13, 14, and 28, 2004.
The evidence at the suppression hearing was insufficient to prove Pearl was ever a fugitive from justice under Penal Code section 3064 during his four years of parole. At the conclusion of the suppression hearing, the prosecution reopened its case to introduce a certified copy of Pearl's prison record maintained by the California Department of Corrections and Rehabilitation (CDC) pursuant to Penal Code section 969b. Pearl's CDC record contains several handwritten and stamped entries. However, the prosecution presented no witnesses to explain the meaning of any of the entries on the CDC record. Whatever we might surmise the CDC record means, our surmise is not a substitute for testimony under oath subject to cross-examination.
As a consequence, the trial court erred by finding the prosecution met its burden of establishing the warrantless searches were justified as valid parole searches. The warrantless searches therefore violated Pearl's rights under the Fourth Amendment to the United States Constitution.
In the trial court, the prosecution did not invoke, argue, or present any evidence to support the good faith exception to the exclusionary rule, even after the court raised the exception and asked whether the prosecution was asserting it. The trial court denied Pearl's motion to suppress evidence only on the ground the prosecution met its burden of proving Pearl was on parole. In this appeal, the Attorney General has not argued the good faith exception applies.
In People v. Willis (2002) 28 Cal.4th 22, the California Supreme Court squarely placed the burden on the prosecution of proving the good faith exception. Recently, in Herring v. United States (2009) 555 U.S. __ [129 S.Ct. 695] (Herring), the United States Supreme Court further defined the good faith exception, but did not alter the prosecution's burden of proof in the trial court.
We therefore conclude the trial court erred by denying Pearl's motion to suppress evidence.*fn1 The evidence obtained in the unlawful searches was the only basis of Pearl's conviction for receiving stolen property. The Attorney General does not respond to Pearl's argument the erroneously admitted evidence tainted the conviction for burglary. Accordingly, we must reverse.
An information charged Pearl with burglary (Pen. Code, § 459 [count 1]) based on an incident on December 13, 2004, and with receiving stolen property (Pen. Code, § 496, subd. (a) [count 2]) based on the property recovered in the searches on December 13, 14, and 28, 2004.
Pursuant to Penal Code section 1538.5, Pearl moved to suppress evidence obtained during the warrantless searches conducted on December 13, 14, and 28, 2004. The prosecution justified the searches on the ground Pearl was on parole at the time and subject to a search condition.
The trial court conducted a suppression hearing at which Palm Springs Police Sergeant Donald Crager, Palm Springs Police Detective William Judd, and Pearl testified.
Crager testified he worked as a detective sergeant in the crimes against property unit of the Palm Springs Police Department. On December 13, 2004, he reviewed a report of Pearl's arrest. Crager knew Pearl from previous arrests and knew he recently had been released from prison. After reading the arrest report, Crager contacted the parole department. When asked how he knew Pearl was on parole, Crager answered: "I know that he was recently released from prison. I reviewed his criminal record, and I contacted the parole department." Crager did not identify the person with whom he spoke at the parole department or what that person said.
Crager went to Pearl's listed address to conduct a search. Judy Spira was at home, and Crager asked her permission to search Pearl's room. She consented, and led Crager to Pearl's room. There, Crager found a laptop computer, later identified as stolen.
Accompanied by Pearl's parole agent and Judd, Crager returned to Pearl's room on December 14, 2004 to conduct a second search. After receiving Spira's permission, Crager searched the residence and the garage. In the garage, Crager found guitars, golf clubs, appliances, tools, watches, animation cells, bicycles, and a tapestry.
Judd testified he accompanied Crager on the December 14 search after speaking with Pearl's parole agent. Judd conducted the third search on December 28, 2004. Chris Strickland, who had moved into Pearl's room, was at the residence and granted Judd permission to search the room. In the room, Judd found cartoon watches and foreign coins belonging to Frank Gambale.
Pearl testified his parole term started on December 12, 2000, the date on which he was released from custody. His initial parole term was three years, but was later increased to four years due to a parole violation. He ...