IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
December 29, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAVIER JAY VELEZ, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF112209A)
The opinion of the court was delivered by: Butz , J.
P. v. Velez
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following an unsuccessful Penal Code section 1538.5*fn1 motion to suppress evidence essential to his conviction, defendant Javier Jay Velez pleaded no contest to being a felon in possession of a firearm (§ 12021, former subd. (a)) and admitted he had a prior serious felony conviction (§§ 667, subds. (a)-(d), 1170.12, subd. (b)). On appeal, he claims error only in the denial of his motion to suppress. We shall affirm.
RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY*fn2
Defendant was driving the car of his girlfriend, Kristy Evans, when Stockton Police Officer Michael Reynosa recognized him as he drove past. The car had a broken taillight. Reynosa had had contact with defendant two weeks earlier, and knew defendant was unlicensed and on searchable probation. The search condition included defendant's person, vehicle, residence and areas over which he exercised control. Defendant pulled over, and while speaking with Reynosa, admitted he was still unlicensed and on probation. After the records department confirmed defendant remained on probation, Reynosa had the car searched and impounded.
The records search indicated defendant's known address was on Bianchi Street, his mother's address. When he was stopped, he was approximately six blocks away from his mother's home. Nonetheless, defendant stated he was going from a store to Evans's house to take a shower. Evans lived on Country Club Boulevard, about six miles away from where defendant was stopped. Defendant told Officer Reynosa he was "staying both at his mom's and at his girlfriend's."
Officer Reynosa went with defendant to Evans's home. Evans confirmed defendant "stayed" at both her home and his mother's home "part time." Reynosa informed Evans the officers were going to conduct a probation search of the home. She argued and indicated defendant did not live at the home and it was not his address of record. She acknowledged he stayed at the apartment three or four days a week, but reiterated it was not his probation address. Reynosa asked Evans if he would find anything in the home and Evans's son answered, "My daddy has two guns in the home." Defendant is the child's father. After initially denying there were guns in the home, Evans admitted there was a gun in the closet.
Upon searching the studio apartment, officers found a pump-style shotgun with five live rounds attached to the stock in a closet. In a drawer, they found an illegal butterfly knife and two live shotgun shells. They found red clothing belonging to defendant, other items of men's clothing, some of which belonged to defendant, in the closet and men's shoes on the porch. They also found paperwork, bills and a pay stub in defendant's name in both the closet and drawer.
Defendant filed a motion to suppress, arguing he did not live in Evans's apartment on Country Club Boulevard; therefore, his probation search did not entitle officers to search the apartment without a warrant. He contended that to search a residence other than the one listed as his probation address, there had to be probable cause that he was concealing his true residence. The People responded that if he did not live at Evans's apartment, he did not have standing to challenge the search of the apartment. Alternatively, if he did live there, it was covered by the probation search conditions. Evans joined in the motion to suppress and the parties submitted based on the preliminary hearing transcript.
After hearing argument, the trial court noted the discussion was relevant only to Evans's motion to suppress, "because [defendant] is going to lose whichever way I go. Either he has no standing to contest the search . . . [o]r [defendant] does have standing, but the probation allows the search." Ultimately, the court stated, "I do not find [defendant] lived at the apartment owned or occupied by Ms. Evans. However, based on the terms of probation that the search is permissible under property under [defendant's] control with the statements of both Ms. Evans and [defendant] that [defendant] . . . stayed there as much as three times a week, that alone leads the Court to believe that it's reasonable for the officer to believe that [defendant] had control over the room in which the property was found." The court went on to find defendant had standing to raise the motion, but under the terms of his probation conditions, the search was proper.
Following the denial of his motion to suppress, defendant pleaded no contest to being a felon in possession of a firearm and admitted a prior strike. He was sentenced to state prison for the upper term of three years, doubled to six years, pursuant to the prior strike conviction. Defendant was awarded 194 total days of credit (169 days of actual custody credit, with 25 days of good-time conduct credit).*fn3
Defendant contends that a "probation search clause does not provide a blanket justification for warrantless searches" and, although he was on probation with a diminished expectation of privacy, as a probationer he retained some privacy rights. Relying largely upon United States v. Knights (2001) 534 U.S. 112 [151 L.Ed.2d 497] (Knights), defendant argues there had to be reasonable suspicion to support the search of the Country Club Boulevard apartment, irrespective of his probation search condition. Defendant also argues that the search of the Country Club Boulevard apartment was "a form of harassment" as it was "unrelated to rehabilitative and reformative purposes or legitimate law enforcement purposes." Lastly, defendant contends the trial court misunderstood the applicable standard, and was at a minimum obligated "to determine whether the search in this case violated [defendant's] reduced reasonable expectation of privacy."
Defendant has forfeited these claims by failing to raise them in the trial court. A motion to suppress must "set forth the factual basis and the legal authorities that demonstrate why the motion should be granted." (§ 1538.5, subd. (a)(2).) When the search is warrantless, and the defendants have a specific argument other than the lack of a warrant to suppress the evidence, "they must specify that argument as part of their motion to suppress and give the prosecution the opportunity to offer evidence on the point." (People v. Williams (1999) 20 Cal.4th 119, 130.) While the appropriate degree of specificity required will vary depending upon the specific facts and circumstances of the case, the motion to suppress must "be specific enough to give the prosecution and the court reasonable notice. Defendants cannot . . . lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked." (Id. at pp. 130-131.) It is an "'elemental matter of fairness,'" that "'the scope of issues upon review must be limited to those raised during argument.'" (Williams, at p. 136, quoting People v. Manning (1973) 33 Cal.App.3d 586, 601.)
Here, in his motion to suppress, defendant argued that because the Country Club Boulevard address was not reported as his primary residence, the officers had to have probable cause that the apartment was his secondary residence or "base" to justify a search of the apartment. In other words, he argued that because he did not live there at the Country Club Boulevard apartment, in the absence of probable cause connecting him to the apartment and suggesting he had some control over it, the apartment was not covered by the terms of his probation. This is a fundamentally different argument than defendant makes now on appeal. At no time did defendant argue to the trial court, as he does on appeal, that he retained privacy rights irrespective of his search condition, that the search had to be supported by reasonable suspicion, or that the search amounted to harassment. Because these arguments were not raised at the trial court level, the prosecution had no opportunity to rebut them and the court had no opportunity to consider them. Accordingly, they cannot be raised for the first time on appeal. (People v. Oldham (2000) 81 Cal.App.4th 1, 11-12.)
Even if the claims were not forfeited, they would fail. "An adult probationer consents to a waiver of his Fourth Amendment rights in exchange for the opportunity to avoid serving a state prison sentence. [Citation.] '"[W]hen [a] defendant in order to obtain probation specifically [agrees] to permit at any time a warrantless search of his person, car and house, he voluntarily [waives] whatever claim of privacy he might otherwise have had."'" (People v. Reyes (1998) 19 Cal.4th 743, 749 (Reyes), quoting People v. Bravo (1987) 43 Cal.3d 600, 607.) The consent is a complete waiver of the defendant's Fourth Amendment rights, save only his right to object to searches conducted for harassment or in an unreasonable manner. (Reyes, supra, 19 Cal.4th at pp. 753-754.) The California Supreme Court has made clear that a valid probation search may be conducted in the absence of a particularized suspicion of criminal activity as long as the search is not arbitrary, capricious or harassing. (Id. at p. 752.)
After Reyes was decided, the United States Supreme Court addressed the issue of a warrantless probation search and held that a warrantless search of a probationer's residence is reasonable if it is supported by no more than reasonable suspicion that the defendant is engaging in criminal conduct. (Knights, supra, 534 U.S. at p. 121 [151 L.Ed.2d at p. 506].) The court did not, however, address the issue presented in this case of whether reasonable suspicion must be present to justify a warrantless search based on a probation condition. Nor did the court consider to what extent a probationer's consent to a search condition is a waiver of Fourth Amendment rights. In fact, the court specifically refrained from doing so. (Id. at pp. 119-120 & fn. 6 [151 L.Ed.2d at pp. 505-506 & fn. 6].) As the United States Supreme Court has yet to decide whether a probation search based on a probation condition without individualized suspicion would be reasonable under the Fourth Amendment, we are bound to follow Reyes. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Nor, contrary to defendant's argument, does In re Jaime P. (2006) 40 Cal.4th 128 support defendant's claim. In Jaime P., the court held that a probation search condition did not justify an otherwise illegal search and seizure where the officers were unaware of the probation condition prior to the search. (Id. at p. 139.) The court found that the reasonable expectation of privacy which probationers retain is "that officers will not undertake a random search supported by neither evidence of criminal activity nor advance knowledge of the search condition." (Id. at p. 136, italics added; see also id. at p. 138.) In this case, the officers did have advance knowledge of the search condition. Accordingly, the discussion in Jaime P. regarding retained, albeit diminished, privacy rights of probationers has no application to this case.
Here, there is no evidence that demonstrated that Officer Reynosa's desire to search Evans's apartment was arbitrary, capricious or harassing. There was no evidence the search was unrelated to legitimate law enforcement purposes. There was no evidence Reynosa targeted defendant, or probationers in general, and no evidence the search was motivated by personal animosity against defendant. (In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004.) There was no evidence Reynosa conducted searches of defendant too often, at unreasonable hours, or for unreasonably prolonged periods of time. (People v. Clower (1993) 16 Cal.App.4th 1737, 1741-1742.) There was no evidence Reynosa conducted the search at his whim or caprice. (People v. Bremmer (1973) 30 Cal.App.3d 1058, 1063.)
Rather, the evidence indicates Officer Reynosa saw defendant driving a car with a broken taillight. He knew defendant did not have a driver's license and was on searchable probation. Defendant voluntarily pulled over. Defendant indicated he was going to Evans's apartment to shower, although he was closer to his probation address. Defendant stated he stayed with both his mother and Evans. Evans confirmed defendant stayed with both her and his mother, spending up to three to four nights a week at Evans's apartment. Nothing about these circumstances suggests the search was arbitrary, capricious or harassing. Accordingly, the search was lawful. (Reyes, supra, 19 Cal.4th at p. 752.)
The judgment is affirmed.
We concur: RAYE , P. J. HOCH , J.