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The People v. Charles Byon Nishi

July 13, 2012

[5]     THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CHARLES BYON NISHI, DEFENDANT AND APPELLANT.



[6]     (Marin County Super. Ct. No. SC169462A) Trial Judge: Hon. Paul M. Haakenson

[8]     The opinion of the court was delivered by: Dondero, J.

[9]      CERTIFIED FOR PARTIAL PUBLICATION*fn1

[10]     Defendant Charles Nishi was convicted following a jury trial of one count of attempting to deter or resist an executive officer in the performance of duty in violation of Penal Code section 69.*fn2 In this appeal he challenges the denial of his pretrial motion to suppress evidence, and complains that he was denied the right to testify at trial. He also argues that the conviction is not supported by the evidence, and objects to the imposition of a probation condition that directs him to undergo a psychological evaluation and take medication as directed by a physician. In a supplemental brief, defendant claims instructional error and improper denial of his motion for self-representation. We conclude that defendant had no reasonable expectation of privacy in the area searched, and was not denied the right to testify at trial. The evidence supports the conviction and defendant's motion for self-representation was untimely. No instructional error occurred. The medication condition of probation is both reasonably related to deterring future criminality, and neither vague nor overbroad. We therefore affirm the judgment.

[11]     STATEMENT OF FACTS

[12]     The United States Air Force Freedom of Information and Privacy Act Office of the Department of Defense received an e-mail signed by Charles Nishi, who referred to himself as "The Shepherd," dated March 27, 2010, which was designated as an "EMERGENCY COMMUNICATION." In the e-mail Nishi stated he had been located after numerous California Highway Patrol helicopter flights, and complained that the California Department of Fish and Game had been repeatedly and unlawfully shooting at protected mountain lions in the "Open Space" to "PROVOKE AN ATTACK which endangers the public." Nishi petitioned for an immediate "shut down" of "Marin County Sheriffs and Fish & Games operations," and asked the United States Fish and Wildlife Service and the Department of Justice to "take control of all wild life activities" in the Marin County Indian Valley Open Space Preserve to prevent further slaughter of mountain lions. He also declared: "I am armed and will now fire on all Sheriff and Fish & Game after this email so either shut them down or put some boots on the ground to join the battle, remember that if they kill me what is going to happen to the human race by APOLLO or the same beings on Codex Dresden." Defendant further pointed out he had informed the California Department of Fish and Game that the United States Air Force was "monitoring their activities" through air support.

[13]     The Department of Defense forwarded the e-mail to the Marin County Sheriff's Department on March 29, 2010. Deputy Sheriff Christopher Henderson, an officer who had often investigated cases of "criminal threats" to law enforcement, was given the e-mail with directions to "take care of it." Deputy Henderson reviewed the e-mail and was alarmed by its nature, detail, length and content. He decided the message represented a "credible threat" and "safety issue," so he issued a computer-generated "Officer Safety/Welfare Check" bulletin, which he sent to regional law enforcement agencies, including the Department of Fish and Game. In the bulletin the deputy identified defendant Charles Nishi of Novato as the author of an angry, confrontational e-mail sent to military officials, and included a description and photograph of him. The bulletin also mentioned a warning from defendant in the e-mail that he "is armed and will 'fire on' Sheriff and Fish and Game personnel if confronted." Deputy Henderson's primary objective in issuing the bulletin was to effectuate a medical evaluation of defendant.

[14]     Brian Sanford, superintendant in charge of operations for the Indian Valley Open Space Preserve, received the e-mail and Deputy Henderson's bulletin. As a result, he posted the e-mail and directed his staff "not to go into that preserve" until contact was made with defendant. Charles Armor, regional manager for the Bay Delta region of the California Department of Fish and Game, became concerned for the safety of his staff after learning of the contents of defendant's e-mail. He advised his staff "not to wear their uniforms," and be "a little more vigilant," while working in the field.

[15]     Marin County Deputy Sheriff Brenndon Bosse, who has patrol responsibilities in the Indian Valley Open Space Preserve, also received defendant's e-mail and the associated bulletin from Deputy Henderson. He was delegated the duty to proceed to the Indian Valley Open Space Preserve to contact defendant. Deputy Bosse was acquainted with defendant due to prior contacts: his prior infractions in 2009 for camping in the preserve without a permit, and unsubstantiated reports made by defendant of shooting of mountain lions. Defendant had been cooperative and non-threatening with Deputy Bosse in the past. Nevertheless, "because of the threatening statement" in the e-mail that he "would fire upon Sheriff's deputies or Fish and Game officers," Bosse stayed near cover as he hiked in the preserve searching for defendant.

[16]     About 6:00 p.m. on March 31, 2010, Deputy Bosse located defendant at a fire road in the Indian Valley Open Space Preserve. Defendant affirmed he sent the e-mail, but did not acknowledge he wrote the paragraph that threatened to "fire upon Sheriff's deputies or Fish and Game officers." Defendant consented to a search for weapons, and exclaimed that the e-mail "worked" by keeping the officers "off the preserve." He was then arrested and transported to the psychiatric facility at Marin County General Hospital. During a subsequent search of defendant's campsite Bosse discovered boxes of new shotgun shells under a tarp next to a tent, although no firearm was found.

[17]     DISCUSSION

[18]     I. The Denial of the Motion to Suppress Evidence.

[19]     Defendant complains of the warrantless search of his campsite, and specifically the seizure of the boxes of shotgun shells from a tarp "immediately surrounding" his tent. Defendant argues that his "expectation of privacy in the campsite was subjectively as well as objectively reasonable, given his homeless status and the presumed willingness of society to recognize an expectation of privacy for a homeless camper on secluded public land." Defendant's position is that the tarp was within the "curtilage" of his campsite, and thus "entitled to Fourth Amendment protections." The Attorney General responds that defendant "had no reasonable expectation of privacy in the location where the ammunition was found," so no Fourth Amendment violation occurred as a result of the warrantless search.

[20]     In reviewing the trial court's denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling, deferring to those express or implied findings of fact supported by substantial evidence. (People v. Alvarez (1996) 14 Cal.4th 155, 182 [58 Cal.Rptr.2d 385, 926 P.2d 365]; People v. Miranda (1993) 17 Cal.App.4th 917, 922 [21 Cal.Rptr.2d 785].) We independently review the trial court's application of the law to the facts. (People v. Alvarez, supra, at p. 182.)

[21]     The threshold issue before us is " 'whether the challenged action by the officer "has infringed an interest of the defendant which the Fourth Amendment was designed to protect." [Citations.] . . .' [Citations.]" (People v. Shepherd (1994) 23 Cal.App.4th 825, 828 [28 Cal.Rptr.2d 458].) " 'An illegal search or seizure violates the federal constitutional rights only of those who have a legitimate expectation of privacy in the invaded place or seized thing. [Citation.] The legitimate expectation of privacy must exist in the particular area searched or thing seized in order to bring a Fourth Amendment challenge.' [Citation.]" (People v. McPeters (1992) 2 Cal.4th 1148, 1171 [9 Cal.Rptr.2d 834, 832 P.2d 146], italics omitted; see also People v. Jenkins (2000) 22 Cal.4th 900, 971 [95 Cal.Rptr.2d 377, 997 P.2d 1044]; People v. Roybal (1998) 19 Cal.4th 481, 507 [79 Cal.Rptr.2d 487, 966 P.2d 521].)

[22]     "A defendant has the burden at trial of establishing a legitimate expectation of privacy in the place searched or the thing seized." (People v. Jenkins, supra, 22 Cal.4th 900, 972.) "A person seeking to invoke the protection of the Fourth Amendment must demonstrate both that he harbored a subjective expectation of privacy and that the expectation was objectively reasonable. [Citation.] An objectively reasonable expectation of privacy is 'one society is willing to recognize as reasonable.' [Citation.] Stated differently, it is an expectation that has ' " 'a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.' " ' [Citation.]" (People v. Hughston (2008) 168 Cal.App.4th 1062, 1068 [85 Cal.Rptr.3d 890] (Hughston); see also Smith v. Maryland (1979) 442 U.S. 735, 740 [61 L.Ed.2d 220, 99 S.Ct. 2577]; United States v. Dodds (10th Cir. 1991) 946 F.2d 726, 728 (Dodds).)

[23]     " 'A "reasonable" expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms. [Citation.]' [Citation.]" (Rains v. Belshe (1995) 32 Cal.App.4th 157, 173 [38 Cal.Rptr.2d 185].) "There is no set formula for determining whether a person has a reasonable expectation of privacy in the place searched, but the totality of the circumstances are considered. [Citation.] Among the factors sometimes considered in making the determination are whether the defendant has a possessory interest in the thing seized or place searched [citation], 'whether he has the right to exclude others from that place; whether he has exhibited a subjective expectation that it would remain free from governmental invasion; whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises.' [Citation.]" (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1132 [12 Cal.Rptr.3d 483].)

[24]     The most significant, and ultimately controlling, factor in the case before us is that defendant was not lawfully or legitimately on the premises where the search was conducted. The uncontradicted evidence reveals that camping on the Indian Valley Open Space Preserve was prohibited without a permit. Defendant had no authorization to camp within or otherwise occupy the public land. On at least four or five recent occasions he had been cited by officers for "illegal camping" and evicted from other campsites in the preserve.

[25]     Thus, both the illegality, and defendant's awareness that he was illicitly occupying the premises without consent or permission, are undisputed. "Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." (Rakas v. Illinois (1978) 439 U.S. 128, 143, fn. 12 [58 L.Ed.2d 387, 99 S.Ct. 421].) Defendant was not in a position to legitimately consider the campsite--or the belongings kept there--as a place society recognized as private to him. (Dodds, supra, 946 F.2d 726, 728-729.) Nor did he have the right to exclude others from that place. He had no ownership, lawful possession, or lawful control of the premises searched. (See United States v. Gale (D.C. Cir. 1998) 136 F.3d 192, 195-196; United States v. Carr (10th Cir. 1991) 939 F.2d 1442, 1446.) A "person can have no reasonable expectation of privacy in premises on which they are wrongfully present . . . ." (United States v. Gutierrez-Casada (D.Kan. 2008) 553 F.Supp.2d 1259, 1270; see also United States v. McRae (6th Cir. 1998) 156 F.3d 708, 711; Dodds, supra, at pp. 728-729.)

[26]     Defendant's unlawful, temporary occupation of the campsite distinguishes the present case from United States v. Gooch (9th Cir. 1993) 6 F.3d 673, 676-677, in which the court concluded that the defendant had an objectively reasonable expectation of privacy in a tent pitched for several days in a public campground where he was "legally permitted to camp." (Id. at p. 677; see also United States v. Basher (9th Cir. 2011) 629 F.3d 1161, 1167-1168.) In United States v. Sandoval (9th Cir. 2000) 200 F.3d 659, 660-661 (Sandoval), the court extended the holding in Gooch to find a legitimate expectation of privacy associated with the seizure of a medicine bottle discovered during a search of a "makeshift tent" "located on Bureau of Land Management" property, (id. at p. 660), where it was "unclear whether Sandoval had permission to be there." (Id. at p. 661.) The defendant's tent in Sandoval was located in an area that was heavily covered by vegetation and virtually impenetrable. In addition, the tent was closed on all four sides, and the medicine bottle was not visible from outside. (Id. at p. 660.) The court in Sandoval concluded: "[W]e do not believe the reasonableness of Sandoval's expectation of privacy turns on whether he had permission to camp on public land. Such a distinction would mean that a camper who overstayed his permit in a public campground would lose his Fourth Amendment rights, while his neighbor, whose permit had not expired, would retain those rights." (Id. at p. 661, fn. omitted.)

[27]     Similarly, in Hughston, supra, 168 Cal.App.4th 1062, 1068-1069, 1071, the defendant was found to have "a reasonable expectation of privacy" for Fourth Amendment purposes in an aluminum frame covered with tarps that was erected within a designated site on land specifically set aside for camping during a music festival. The court in Hughston declared: " 'One should be free to depart the campsite for the day's adventure without fear of this expectation of privacy being violated.' " (Id. at p. 1070, quoting People v. Schafer (Colo. 1997) 946 P.2d 938, 944.)

[28]     Here, in contrast to Sandoval and Hughston, not only was defendant clearly camped in a prohibited location, the shotgun shells were seized from outside his tent, in a pile of debris under a loose tarp. While a tent located in a public campground may be considered a private area where people sleep and keep valuables, functionally somewhat comparable to a house, apartment, or hotel room, the remainder of defendant's unauthorized, undeveloped campsite was a dispersed, ill-defined site, exposed and open to public view. The area around the tent was not within a defined residential curtilage in which defendant had a reasonable expectation of privacy. (United States v. Basher, supra, 629 F.3d 1161, 1169.) Also, after his repeated removal by officers from campsites he had occupied in the same preserve in the recent past, defendant was conscious of the illegality, which further tends to negate his legitimate expectation of privacy in that location. (People v. Thomas (1995) 38 Cal.App.4th 1331, 1333-1334 [45 Cal.Rptr.2d 610] (Thomas).)

[29]     We find the decision in United States v. Ruckman (10th Cir. 1986) 806 F.2d 1471, persuasive in the present case. In Ruckman, the defendant lived in a natural cave located in a remote area of southern Utah on land owned by the United States and controlled by the Bureau of Land Management. He attempted to enclose the cave by "fashioning a crude entrance wall from boards and other materials which surrounded a so-called 'door.' " (Id. at p. 1472.) A warrantless search of the cave resulted in seizure of firearms and "anti-personnel booby traps." (Ibid.) As in the case before us, the evidence established that "Ruckman was admittedly a trespasser on federal lands and subject to immediate ejectment" (ibid.) by authorities "at any time." (Id. at p. 1473.) The court pointed out that " 'whether the occupancy and construction were in bad faith,' " and the " 'legal right to occupy the land and build structures on it,' " were factors " 'highly relevant' " to the issue of the defendant's expectation of privacy. (Id. at p. 1474, quoting Amezquita v. Hernandez-Colon (1st Cir. 1975) 518 F.2d 8, 12.) The court determined "that Ruckman's cave is not subject to the protection of the Fourth Amendment." (Ruckman, supra, at p. 1472.)

[30]     Here, as in Ruckman, defendant was a trespasser on public land, and occupied the campsite without authority in bad faith. "Where, as here, an individual 'resides' in a temporary shelter on public property without a permit or permission and in violation of a law which expressly prohibits what he is doing, he does not have an objectively reasonable expectation of privacy. (United States v. Ruckman (10th Cir. 1986) 806 F.2d 1471, 1474 [rejecting a claim of privacy in a cave on federal property because the determination whether a place constitutes a person's 'home' must take into account the means by which it was acquired and whether it is occupied without any legal right]; Amezquita v. Hernandez-Colon (1st Cir. 1975) 518 F.2d 8, 11-12 [no privacy right in a squatter's community on public property]; State v. Cleator (1993) 71 Wn.App. 217 [857 P.2d 306, 308-309] [no privacy right in a tent on public property]; State v. Mooney (1991) 218 Conn. 85 [588 A.2d ...


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