COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 1, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ROBIN JIM HATTAWAY, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed. (Super. Ct. No. SCD220431)
The opinion of the court was delivered by: Irion, J.
P. v. Hattaway CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This appeal arises out of Robin Jim Hattaway's conviction of possession of methamphetamine and possession of drug paraphernalia and proceeds in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende).
FACTUAL AND PROCEDURAL BACKGROUND
Shortly before 7:00 a.m. on the morning of April 29, 2009, Julia Romero and her 17-year-old daughter saw their neighbor, Hattaway, standing naked in the front doorway of his home, masturbating, for several minutes. Police who responded to their report went to the home, where Hattaway lived with his father and Hattaway's close friend, Daniel Brandt. Brandt answered the door and allowed the officers inside. Shortly thereafter, Romero came over and gave a statement to the officers; she later identified Hattaway as the perpetrator in a photographic line-up.
With Brandt's consent, the officers conducted a protective sweep search of the house and determined that no one else was home; after confirming Brandt's statement that Hattaway was a parolee (and thus subject to a Fourth Amendment waiver), they made a more extensive search of the house. The officers found .15 grams of methamphetamine inside a box on the top of a desk, as well as other drug use paraphernalia, in the bedroom Brandt indicated was Hattaway's.
Brandt also identified a blue truck parked in the driveway as the vehicle that Hattaway drove. The officers searched it, too, finding five syringes, a digital scale, Hattaway's wallet and an iPod. They also searched the garage, which was unlocked, finding numerous car and motorcycle parts, and a car that had previously been reported stolen. Despite the use of a helicopter to search the neighborhood, police were unable to find Hattaway.
The next day, an anonymous caller told police that Hattaway was back at home. When the first responding officer arrived, Hattaway and Brandt were standing in the driveway, on either side of Hattaway's truck. Hattaway asked why the officer was there. After the officer mentioned the indecent exposure report and the discoveries in his room and his truck the previous day, Hattaway looked visibly shaken and told Brandt to "keep [his] mouth shut about anything." Another responding officer searched the truck again, finding Hattaway's laptop inside a computer bag that also contained drug paraphernalia.
Hattaway was arrested and charged with possession of methamphetamine, buying or receiving a stolen vehicle, indecent exposure, possession of drug paraphernalia and unauthorized possession of a hypodermic needle, and was detained at the George Bailey Detention Facility. While in jail, Hattaway made several calls, including one to an unidentified female in which he bragged about having evaded police efforts to find him on the day of the incident.
Shortly thereafter, Hattaway moved to suppress evidence regarding the truck and the garage and the items seized therefrom. He contended that the officers' searches of the truck and the garage were invalid because they had neither (a) a warrant nor (b) any reasonable basis for believing that those areas were within his dominion and control sufficient to trigger the application of his Fourth Amendment waiver. The court denied the suppression motion, concluding that Brandt's statements to police regarding Hattaway's use of the truck and the evidence that the garage was an area commonly accessible to all members of the household provided a sufficient basis for the officers to search those areas pursuant to his parole waiver.
After Hattaway successfully moved to set aside the stolen vehicle count against him, the prosecutor filed an amended information charging him with possession of methamphetamine, indecent exposure, possession of drug paraphernalia and possession of hypodermic needles, and alleging that he had suffered two or more prior felony convictions, two prison priors and a strike prior. Hattaway pled not guilty to the charges.
Prior to trial, Hattaway sought to exclude evidence that Romero had seen him indecently exposed on prior occasions, as well as evidence of his jailhouse calls. The court denied the motion to exclude the uncharged prior conduct evidence on the grounds that the evidence was relevant to establish intent and absence of mistake or accident and that it was not particularly prejudicial, but reserved decision on whether to exclude evidence of jailhouse calls, suggesting that counsel try to reach a stipulation as to that evidence.
At trial, the prosecution introduced evidence of the events of April 29 and 30, as well as a redacted version of the transcript of the jailhouse call in which Hattaway bragged about evading police on the morning of the incident. It also elicited Romero's testimony that Hattaway had exposed himself on prior occasions, but that Romero had not reported those incidents to police. In his defense, Hattaway introduced evidence that there were frequent visitors to the home; that visitors were in his room "all the time"; and that his computer was the only one in the house, so others often went into his room to use it, even when he was not home.
A few hours after beginning its deliberations, the jury indicated that it was hung on the indecent exposure charge and asked to have a readback of the testimony of Romero and her daughter and to listen to the tape of the jailhouse call (as well as a copy of the transcript). The jury later asked to have the "specific intent" element of that offense clarified, but before the court could respond, it sent a second note indicating that it could not reach unanimous agreement on that count.
After inquiring of the jurors and with the stipulation of counsel, the court declared a mistrial as to the indecent exposure count and took the verdict, which convicted Hattaway of the methamphetamine and paraphernalia possession counts and acquitted him of the hypodermic needle possession count. Pursuant to the parties' agreement, the prosecutor later dismissed the indecent exposure count and the prison prior allegations, and Hattaway submitted to a four-year sentence on the methamphetamine possession count and admitted the strike prior.
The court sentenced Hattaway in accordance with the agreement, imposing a midterm of two years, doubled for the strike prior, plus 180 days concurrent for the paraphernalia possession count, and dismissing the remaining prior conviction allegations and the indecent exposure count. Because Hattaway was subject to a parole hold for violations unrelated to the current offenses, the court rejected the argument that he was entitled to custody credits for time served; it also imposed restitution fines of $1,200 each and a $60 court security fee.
At Hattaway's request, the court ordered him to be screened for eligibility to be committed to the California Rehabilitation Center rather than prison, but denied his additional request to be considered for the prisoner re-entry program. Based on a subsequent psychiatrist's finding that Hattaway was addicted or in imminent danger of becoming addicted to narcotics, the court committed him to a narcotic treatment facility.
Hattaway filed a notice of appeal in December 2009. His appellate counsel has filed a brief indicating that she has been unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), the brief identifies the following issues as possible, but not arguable, on appeal:
1. Did the court err in denying Hattaway's motion to suppress?
2. Did the court abuse its discretion in denying his motion in limine to exclude evidence of his jailhouse phone calls?
3. Did he suffer ineffective assistance of counsel as a result of his trial counsel's failure to assert a Miranda objection to police officer testimony regarding his behavior and statements to Brandt just prior to his arrest?
4. Did the court err in denying him presentence custody credits?
This court invited Hattaway to file a supplemental brief, but he has not responded.
We have reviewed the record in accordance with Wende and Anders and not found any reasonably arguable appellate issues. Competent counsel has represented Hattaway on this appeal.
The judgment is affirmed.
HUFFMAN, Acting P. J.
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