P. v. Sanders
Filed 11/5/13 P. v. Sanders CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
BJ SANDERS III,
Defendant
and Appellant.
E055814
(Super.Ct.No.
FSB1103612)
OPINION
APPEAL
from the Superior Court
of
County. Richard V. Peel,
Bridgid M. McCann, and Annemarie Pace, Judges.
remanded with directions.
Susan
L. Ferguson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and James D. Dutton and
Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Following
a jury trial defendant BJ Sanders III was convicted of
Saf. Code, § 11359, count 1) and possession of a firearm by a felon (Pen.
Code,
found true the allegations that defendant suffered three prison priors. Defendant was sentenced to 199 days in county
jail on count 1, for which he received credit for time served. On count 2 he was sentenced to three years in
state prison, plus three consecutive years
for the prior prison terms, for a total sentence of six years. Defendant appeals, contending the trial court
erred in denying his motion to suppress and the trial judge erred in failing to
disqualify himself upon learning that he was the prosecutor on one of
defendant’s prior cases.
I. FACTS
On
August 7, 2011, San
Bernardino Police Officer Jason Heilman and his partner, Officer Byron Clark,
conducted a traffic stop of defendant’s vehicle in the parking lot of an
apartment complex. Defendant told the
officer that he was living with his girlfriend in an apartment at the complex. Officer Heilman obtained a key to the
apartment, knocked, opened the door and announced his presence. A search of the residence produced a loaded firearm,
marijuana and a digital scale. Defendant
was interviewed and admitted the marijuana and firearm belonged to him.
II. MOTION TO SUPPRESS
Defendant
contends the trial court erred when it denied his motion to suppress
evidence. He claims that (1) the search,
which was pursuant to a parole search term, was arbitrary, capricious and
unduly oppressive, and (2) there was insufficient evidence to establish that
the officers were aware that defendant’s parole terms subjected him to a suspicionless
search.
A. Further Background
Information
Prior
to trial, defendant moved to suppress evidence pursuant to Penal Code section
1538.5. At the hearing, Officer Heilman
testified that he conducted a traffic stop of defendant’s car at an apartment
complex for failure to use a turn signal.
Defendant identified himself and stated that he was on parole. He also stated that he lived in the apartment
complex. Officer Heilman verified
defendant’s parole status and conducted a search of the vehicle and the
apartment. The officer called for
assistance to conduct a parole compliance check of the apartment while his
partner stayed with defendant and the vehicle.
Upon
entering the apartment, defendant’s girlfriend, Giovanna Funches, identified
the bedroom that belonged to her and defendant.
Officer Heilman discovered marijuana, a digital scale, and a loaded firearm
in the closet of the bedroom. Marijuana
was also found in the kitchen on top of the refrigerator.
On
cross-examination, Officer Heilman testified that Funches was approximately
five feet from the door when he opened it and stated he was conducting a parole
search. Police went through all the
rooms and drawers and checked under the bed and mattress. The search of the bedroom took 15 to 20
minutes. The initial stop occurred after
Officer Heilman observed defendant turning from Date Street into the parking
lot of the apartment complex. There was
a male passenger with defendant. Officer
Heilman’s partner dealt with the passenger.
It took one or two minutes to run the status of both defendant and his
passenger through the system. It took approximately
10 minutes to search defendant’s vehicle.
During this time defendant was handcuffed. Nothing illegal was discovered in the
vehicle. It took an additional five to 10
minutes to wait for backup so that Officer Heilman could conduct a parole
compliance check on defendant’s residence.
Defendant was placed in the back of the patrol car, while Officer Heilman
and two other officers searched the unit.
From the time of the initial stop to the time of approaching the
apartment was “15, 20 minutes.â€
Using
a key, Officer Heilman entered the apartment.
He saw marijuana on top of the refrigerator in plain view upon entering. Approximately two to five minutes into the
initial search of the bedroom, the officers found marijuana and a firearm. The overall search of the apartment took 20
to 30 minutes. Normally, it takes
approximately five minutes to issue a citation for a traffic stop.
B. Standard of Review
When a trial court rules on
a motion to suppress evidence, it “‘“(1) finds the historical facts, (2)
selects the applicable rule of law, and (3) applies the latter to the former to
determine whether the rule of law as applied to the established facts is or is
not violated. [Citations.] . . . [¶] The
court’s resolution of the first inquiry, which involves questions of fact, is
reviewed under the deferential substantial-evidence standard. [Citations.]
Its decision on the second, which is a pure question of law, is
scrutinized under the standard of independent review. [Citations.]
Finally, its ruling on the third, which is a mixed fact-law question
that is however predominantly one of law, . . . is also subject
to independent review.â€
[Citation.]’ [Citations.]†(People
v. Carter (2005) 36 Cal.4th 1114, 1140.)
C. Search of Defendant’s Home
Defendant
argues that the “parole search of his home was arbitrary, capricious, and
conducted in an oppressive manner because the detention was unreasonably
prolonged; [he] was left handcuffed in a patrol car outside; officers seized
his keys without giving him an opportunity to consent; and they opened his
front door without giving the residents any opportunity to refuse or consent to
the officer[’]s admittance.†He challenges
being handcuffed in the back of the patrol car while Officer Heilman searched
the apartment when the officer “had no reason to believe that [defendant] had
done anything wrong except fail to use his turn signal.†Further, he challenges the officer’s announcement
of his presence while simultaneously entering the apartment. To the extent defendant failed to challenge
the taking of his keys and the lack of knocking and announcing the officer’s
presence prior to entering the apartment at the trial level in his suppression
motion, these issues are forfeited. (
119, 123, 130.) Moreover, the
contentions lack merit.
The
United States Supreme Court has concluded that “the Fourth Amendment does not
prohibit a police officer from conducting a suspicionless search of a
parolee.†(Samson v. California (2006) 547 U.S. 843, 857.) “Where the search is for a proper
purpose, . . . even in the absence of particularized suspicion,
a search conducted under the auspices of a properly imposed parole search
condition does not intrude on any expectation of privacy ‘society is “prepared
to recognize as legitimate.â€â€™
[Citations.]†(
754 (Reyes).) However, this “does not mean parolees have no
protection.†(Id. at p. 753.) Instead, “‘a
parole search could become constitutionally “unreasonable†if made too often,
or at an unreasonable hour, or if unreasonably prolonged or for other reasons
establishing arbitrary or oppressive conduct by the searching officer.’ [Citations.]â€
(Id. at pp. 753-754.)
“The
validity of a search does not turn on ‘the actual motivations of individual
officers.’ [Citation.] But whether a search is reasonable must be
determined based upon the circumstances known to the officer when the search is
conducted.†(People v. Sanders (2003) 31 Cal.4th 318, 334.) “Where the motivation is unrelated to
rehabilitative and reformative purposes or legitimate law enforcement purposes,
the search is ‘arbitrary.’ For example,
had the officer been motivated by personal animosity toward [defendant] or his
family, execution of the ‘consent search term’ would be ‘arbitrary.’†(In re Anthony S.
(1992) 4 Cal.App.4th 1000, 1004.)
Here,
the search of defendant’s apartment was not unreasonable. The officers knew about defendant’s parole
status, which authorized them to detain and search him pursuant to his parole
search condition. (Reyes, supra, 19 Cal.4th
at p. 754.) The search was not unduly
prolonged, it was not performed at an unreasonable time, and there is no
evidence it was an attempt to harass defendant.
The fact that the officers handcuffed defendant throughout much of the
encounter is easily explained, given the presence of defendant and his passenger
and the need for one officer to watch both men.
Upon learning of defendant’s parole status, and that he lived in the
apartment complex where he was stopped, the officers were legally permitted to
search defendant’s apartment in addition to his vehicle and person.
Notwithstanding
the above, defendant takes issue with Officer Heilman taking the key to the
apartment, using it and entering without providing any resident the opportunity
to refuse or consent. There are four
main reasons for the knock-notice rule in California: “‘“(1) The protection of the privacy of the
individual in his home [citations]; (2)
the protection of innocent persons who may also be present on the premises . . .
[citation]; (3) the prevention of
situations which are conducive to violent confrontations between the occupant
and individuals who enter his home without proper notice [citations]; and (4)
the protection of police who might be injured by a startled and fearful
householder.â€â€™ [Citations.]†(People
v. Hoag (2000) 83 Cal.App.4th 1198, 1203.)
The individual’s privacy interest has many aspects. “First, [the knock-notice rule] protects the
homeowner from the outrage of having his ‘castle’ suddenly and violently broken
into. [Citations.] . . . [¶] Second,
the rule may prevent embarrassing circumstances resulting from the unexpected exposure
of private activities. [Citations.]†(United
States v. Bustamante-Gamez (9th Cir.1973) 488 F.2d 4, 11-12.) And finally, because officers must wait to be
refused admittance, the rule gives the homeowner an opportunity to consent to
entry.
Here,
the record shows that the officers used defendant’s key to enter the apartment,
and at the time of opening the door announced, “Police, parole search.†However, the transcript of the hearing on the
motion to suppress is void of any inquiry into whether the officers knocked on
the door before entering the apartment.
Defendant did not voice any objection to the use of his key in his
presence, and he “may not vicariously challenge the alleged violation of
another’s interest.†(
Moreover, the exclusionary rule does not apply to evidence seized
pursuant to a warrant despite a violation of knock-notice law. (Hudson
v. Michigan (2006) 547 U.S. 586, 599.)
While there was no warrant in this case, the same reasoning applies
during the execution of a search pursuant to a parolee’s search term. Nonetheless, defendant faults his trial
counsel for failing to raise the knock-notice violation. Assuming, without deciding, counsel’s
deficiency, we conclude that defendant is unable to establish “there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. (Strickland
v. Washington (1984) 466 U.S. 668, 694.)
According to the record before this court, Officer Heilman testified at
trial that he did knock and announced himself as law enforcement. The record is silent on why defense counsel
did not raise the issue below. If
the record on appeal “‘“sheds no light on why counsel acted or failed to act in
the manner challenged[,] . . . unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,†the claim on appeal must be rejected,’†and the
“claim of ineffective assistance in such a case is more appropriately decided
in a habeas corpus proceeding.
[Citations.]†(
Cal.4th 264, 266-267.) Here the conduct
of defense counsel is subject to a satisfactory explanation, i.e., defense
counsel knew the officer had knocked before entering, and thus, there was no
basis to raise the issue. (
1084, 1091 [defense counsel “is not required to make futile motions or to
indulge in idle acts to appear competentâ€].)
D. Defendant’s Status as a
Parolee
Next,
defendant contends the “evidence was insufficient to establish that Heilman was
aware that [defendant’s] parole agreement contained a search term.†This issue has been addressed, and rejected,
by our colleagues in Division Three of the First District. (People
v. Middleton (2005) 131 Cal.App.4th 732, 739 (Middleton).) Although
defendant invites us to “reject the analysis in Middleton because it is less persuasive than the reasoning put
forth in the federal cases[,]â€we decline the invitation and adopt the holding
in Middleton. (People
v. Schmitz (2012) 55 Cal.4th 909, 923 [officer’s knowledge of an
individual’s parole status is equivalent to knowledge of a search condition].)
“‘[A]
warrantless search condition is a reasonable term in any parole of a convicted
felon from state prison.’ [Citations.]
It was long ago recognized that ‘every grant of parole included an implied
search condition, and an officer’s knowledge of parole status was equivalent to
knowledge of a parole search condition.’
[Citations.] A search condition
for every parolee is now expressly required by statute. [Penal Code] [s]ection 3067, [former] subdivision
(a)[
title="">[3]]
requires an inmate to agree to permit law enforcement to perform warrantless
searches, regardless of cause, as a mandatory condition of parole. [Penal Code, former] [s]ection 3060.5[
requires the parole authority to revoke the parole of any eligible inmate who
refuses to sign a parole agreement which must include the mandatory parole
search condition.
“Defendant
points to [Penal Code] section 3067, [former] subdivision (b) to suggest that
an inmate may be paroled without expressly agreeing to a parole search
condition.[] While this provision may
not be a model of statutory clarity, read together with [former] subdivision
(a) it can be understood to mean only that inmates who are otherwise eligible
for parole yet refuse to agree to the mandatory search condition will remain
imprisoned while losing their accumulated worktime credits on a daily basis
until either (1) the inmate agrees to the search condition and is otherwise
eligible for parole, or (2) has lost all worktime credits and is eligible for
release after having served the balance of his/her sentence. Support for this interpretation of [Penal
Code] section 3067, [former] subdivision (b) can be found in the final
legislative analysis of the provision filed concurrently with the passage of
the statute in 1996. ‘An inmate who
refuses to agree to warrantless search shall not be released until he agrees or
has served his/her entire sentence.’
(Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 2284 (1995-1996
Reg. Sess.) as amended Aug. 26, 1996, p. 1.)
“Defendant’s
[further] point that [Penal Code] section 3067, subdivision (c) limits the
applicability of [Penal Code] section 3067 to inmates whose offenses were
committed on or after January 1, 1997 (and there is no evidence that the
officers here knew when [defendant] committed the offense for which he was on
parole), is equally unavailing.[
name="_ftnref5" title="">[5]] Whatever differences there may be between the
provisions of [Penal Code] section 3067 and the administrative regulations that
apply to those on parole for offenses committed before 1997, both contemplate
that all parolees shall be subject to a search condition. Moreover, [Penal Code, former] section
3060.5, which provides that ‘the parole authority shall revoke the parole of
any prisoner who refuses to sign a parole agreement setting forth the general
and any special conditions applicable to the parole,’ applies regardless of the
date on which the parolee’s offenses were committed.†(Middleton,
supra, 131 Cal.App.4th at pp.
739-740, fns. omitted.)
Thus,
Officer Heilman’s awareness that defendant was a parolee was sufficient to
inform the officers of their right to conduct a parole search of his apartment
and justified the search of it.
III. TRIAL JUDGE’S NEED TO DISQUALIFY HIMSELF
On
October 25, 2011, during jury deliberation, the Judge Peel became aware that he
had acted as a deputy district attorney in a prior case against defendant.
convictions alleged pursuant to Penal Code section 667.5. As a result, Judge Peel disqualified himself
from hearing the Penal Code section 667.5 allegations. However, he continued to preside over the
trial on the instant charges, entering the verdict, discharging the jury, and
sentencing defendant. Defendant moved
for a new trial, arguing that because of the conflict Judge Peel could not have
any further involvement with the case, and because defendant had a right to be
sentenced by the judge who presided over the trial, no other judge could
sentence him either. Thus, defendant
maintained that a new trial was necessary.
Judge Peel denied the motion. On
appeal, defendant faults Judge Peel for failing to disqualify himself upon
learning that he was the prosecutor on one of defendant’s prior cases.
Citing
Sincavage v. Superior Court (1996) 42
Cal.App.4th 224 (Sincavage),
defendant contends Judge Peel “erred when [he] recused [him]self from the
hearing on the prior convictions, rather than the entire proceeding.†We disagree.
In Sincavage, the trial judge
had conducted the preliminary hearing on one of defendant’s prior
convictions. In addition, early in the
proceedings, she mistakenly thought she had only appeared at a brief hearing
and had played no active role. Under the
mistaken impression that she served only that limited role, the trial judge
commented, “‘If in fact, Mr. Sincavage, I had taken your plea, if I had
prosecuted one of your cases, I would automatically recuse myself. I would not hear the case. [¶]
From looking at the transcript, I merely called your case and another
prosecutor and Mr. Coleman . . . from the Public Defender’s Office
were actually involved in the plea itself.’â€
(Id. at p. 227.) Based on this information, the defendant
waived the conflict and the judge presided over defendant’s trial. A different attorney represented the
defendant during the sentencing hearing and moved for disqualification upon discovering
that the trial judge, as the prosecutor in the prior case, had conducted the
preliminary examination. The motion was
denied, and on appeal, the Sincavage
court determined that the trial judge’s comment and subsequent decision not to
recuse herself upon discovering that she had in fact had a more active role in
the prosecution of defendant created a doubt as to her impartiality, such that,
as a matter of law, she should have been disqualified under Code of Civil
Procedure section 170.1, subdivision (a)(6)(A)(iii). (Sincavage,
supra, 42 Cal.App.4th at p. 230.)
As
noted by the Sincavage court, while the
trial judge may have been impartial in presiding over the defendant’s trial on
his current offenses, a person would have a legitimate cause for concern over
her ability to be impartial during the trial on the prior convictions and the
sentencing hearing. (
“Because of the timing peculiar to the instant motion, disqualification
would not invalidate the judgment of conviction of the current offenses. Under [Code of Civil Procedure] section
170.3, subdivision (b)(4), only proceedings after the grounds for
disqualification were discovered would be affected.†(Sincavage,
supra, 42 Cal.App.4th at p. 231.)
The
facts before this court are distinguishable from the facts in the
in the prosecution of defendant on his prior conviction. Rather, he appeared one time at a conference
hearing before the preliminary hearing.
Thus, disqualification from the entire case was not required. However, disqualification as to the sentencing
is, as the People acknowledge, “admittedly a closer call.†On the one hand, disqualification is only
required where the judge served as an attorney for one of the parties in
another proceeding “involving the same issues.â€
(Code Civ. Proc. § 170.1, subd. (a)(2)(A).) A prepreliminary hearing conference would not
have involved the same issues before the court at sentencing. However, on the other hand, Code of Civil
Procedure section 170.1, subdivision (a)(6)(A)(iii), states that disqualification
is mandatory when a person aware of the facts might reasonably entertain a
doubt that the judge would be able to be impartial. Given the fact that Judge Peel decided to
allow another judge to preside over the trial on defendant’s priors, he should
have also allowed another judge to preside over sentencing, since defendant’s
prior convictions governed the punishment for the current offense.
The
trial on the current offense was untainted by any known conflict. If the court has no knowledge of a conflict,
there is no reason to suspect any bias or prejudice and there is no basis for
disqualification. “Judicial
responsibility does not require shrinking every time an advocate asserts the
objective and fair judge appears to
be biased. The duty of a judge to sit where
not disqualified is equally as strong as the duty not to sit when disqualified. [Citation.]†(United
Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97,
100.) Judge Peel conducted the entire
guilt phase of the trial under the assumption that he had not prosecuted
defendant in any prior cases. The court
conducted a preliminary search into the matter and came up empty-handed,
thereby confirming that no conflict existed.
It is impossible for the court to be biased against defendant based on a
prior encounter that the court assumed did not happen. Moreover, the record reveals no indication of
bias or prejudice as Judge Peel presided over defendant’s trial.
Judge
Peel only learned of the prior case while the jury was deliberating, before the
trial on defendant’s priors and his sentencing hearing. To the extent the prior case had any effect
on the current case, it would have been at the trial on defendant’s priors and at
his sentencing on those priors. Although
Judge Peel disqualified himself from the trial on defendant’s priors, out of an
abundance of caution, we conclude that he should have also disqualified himself
from the sentencing hearing. Given the
facts before this court, the appropriate remedy is to remand the matter for
resentencing only. On remand, defendant
is to be sentenced by a judge other than Judge Peel.
IV. DISPOSITION
For
the foregoing reasons, we reverse the sentence on all counts and remand the
matter for resentencing by a judge other than Judge Peel. In all other respects, the judgment is
affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
MILLER
J.
name="_ftn1" title=""> [1] Judge McCann ruled on
defendant’s motion to suppress, Judge Peel presided over defendant’s jury
trial, and Judge Pace presided over the trial on defendant’s priors.
name="_ftn2" title=""> [2] Penal Code, former section
12021, subdivision (a)(1) was repealed operative January 1, 2012, but its
provisions were reenacted without substantive change as Penal Code section
29800, subdivision (a)(1).
