P. v. Jackson

Filed 8/25/08 P. v. Jackson CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Carol H. Rehm, Jr., Judge. Modified, as modified, affirmed.

Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

General Jackson appeals from the judgment entered after his guilty plea to one count of continuous sexual abuse of a child under the age of 14. We reject his contention that his police station confession to the crime should have been suppressed because he was arrested without a warrant at his home. After modifying the judgment to impose certain mandatory fines, we affirm.

FACTS AND PROCEDURAL HISTORY

In June 2006, Los Angeles Police Detective Moses Castillo arrested General Jackson at Jacksons home in response to a 16-year-old girls complaint that Jackson had been having sex with her since she was 12. When Jackson was questioned at the police station, he confessed. Jackson was later charged with 17 counts of various sex offenses.^[1] Jackson moved to suppress the confession because he believed his arrest was unlawful for two reasons: (1) it occurred at his home, without a warrant; and (2) he was arrested on his front porch after being tricked into stepping outside his front door. When that motion was denied, he pleaded guilty to one count of continuous sexual abuse of a child under the age of 14. (Pen. Code, 288.5, subd. (a).)^[2]

Jackson contends the trial court erred by denying his motion. The only evidence at the suppression hearing came from the testimony of Detective Castillo. According to Castillo, the victim said that she and Jackson had been having sex, including oral copulation, almost daily for the previous 4 years. She identified Jackson from a photograph and cried when she did so. Although the victim had complained about the incidents in 2005, Castillo did not go to Jacksons home until June 19, 2006, because he had just learned of Jacksons potential whereabouts that day. His intent was to ascertain whether Jackson lived at the address he had been given and, if Jackson were there, to arrest him.

Jackson lived on the bottom floor of one of three duplexes surrounded by a fence with a locked gate. Castillo was able to enter the complex only after a letter carrier opened the gate. Jacksons front door was open, but the entrance was still barred by a metal screen security door. Castillo knocked on the door and told Jackson he was looking for a Michael Jackson, who had damaged his car in an earlier auto accident. Jackson said his first name was General, not Michael, and voluntarily stepped out his front door and onto the stoop in order to show Castillo his drivers license. When Jackson did so, Castillo arrested him.

STANDARD OF REVIEW

When reviewing a trial courts ruling on a motion to suppress, we defer to the trial courts factual findings, expressed or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.) Only evidence admitted at the suppression hearing is to be considered when determining the correctness of the ruling. (People v. Marks (2003) 31 Cal.4th 197, 218.)

DISCUSSION

1. The Court Properly Denied the Suppression Motion

As a general proposition, a warrantless entry into a suspects home is not permitted in order to make a routine arrest. (People v. Marquez (1992) 1 Cal.4th 553, 566 (Marquez); People v. Ramey (1976) 16 Cal.3d 263.) This protection extends to the curtilage of a home areas outside the home where a reasonable expectation of privacy exists because the intimate activities of home life are carried out there. (People v. Mayoff (1986) 42 Cal.3d 1302, 1314.) Jackson contends that his front stoop was such an area, especially given the fence and locked gate which secluded the duplex complex where he lived. Relying on People v. Reyes (2000) 83 Cal.App.4th 7, 10, 13 (Reyes), he also contends the arrest was unlawful because Castillo tricked him into stepping out his front door. Based on this, he contends that his later confession to the police should have been suppressed.^[3]

We need not resolve these issues because respondent has advanced an alternate ground for affirmance that we find persuasive: Jacksons post-arrest confession did not have to be suppressed because Castillo had probable cause to arrest him. Under Harris and Marquez, the factthat an officer may have violated a defendants constitutional rights by arresting the defendant at his house without a warrant does not mean a subsequent confession must be suppressed, so long as there was probable cause for the arrest. (New York v. Harris (1990) 495 U.S. 14, 17-19 (Harris); United States v. Crawford (9th Cir. 2004) 372 F.3d 1048, 1055-1056 (Crawford); Marquez, supra, 1 Cal.4th at pp. 568-569.) The trial court found that Castillo had probable cause to arrest Jackson, a finding that Jackson acknowledged and essentially conceded in the section of his opening appellate brief devoted to the ruse issue.^[4]

In his reply brief, however, Jackson argues that the Harris rule does not apply because Castillos year-long delay in arresting him was unexplained and because Castillos failure to obtain a warrant during that period strongly suggests the police were unable to make a lawful arrest. As a result, Jackson contends this flagrant violation of his rights precludes a finding that his later confession was sufficiently attenuated from the unlawful arrest. We disagree.

First, Castillo did explain the delay, stating that he had been unable to get a lead on Jacksons whereabouts until the date of his arrest. Second, Jackson does not support his contention about the suggestion his arrest was unlawful by citation to any relevant evidence in the record or by way of discussion and citation to authority.^[5] We therefore deem the issue waived. (Beltran, supra, 82 Cal.App.4th at p. 698, fn. 5.) Third, there was ample evidence to support the trial courts probable cause finding: the victim told Castillo about the incidents and cried when she identified Jackson as the perpetrator. (People v. Johnson (1971) 15 Cal.App.3d 936, 940.) Alternatively, Jackson does not discuss the evidence or law concerning probable cause, leading us to deem that issue waived as well. (Beltran, supra, at p. 698, fn. 5.) Because there was probable cause to arrest Jackson and because his confession took place sometime later at the police station, we hold that the trial court did not err by denying Jacksons motion to suppress the confession. (Harris, supra, 495 U.S. at pp. 17-19; Crawford, supra, 372 F.3d at pp. 1055-1056; Marquez, supra, 1 Cal.4th at pp. 568-569.)

2. Additional Sex Offender Fines Should Be Imposed

The trial court ordered Jackson to pay a $200 sex offender fee. (Pen. Code,  290.3.) As respondent points out, the court failed to impose several other mandatory fees and fines: (1) a 100 percent state penalty assessment of $200 (Pen. Code,  1464); (2) a 70 percent county penalty assessment of $140 (Gov. Code,  76000); (3) a 10 percent DNA identification fund fee of $20 (Gov. Code,  76104.6, subd. (a)); (4) a 20 percent court surcharge of $40 (Pen. Code,  1465.7, subd. (a)); and (5) a 30 percent state court facilities construction fund penalty of $60 (Gov. Code,  70372, subd. (a), 70375, subd. (b)). Jackson does not contest respondents contention and we will order that the abstract of judgment be modified to reflect these fees, which total $460.

DISPOSITION

The clerk of the superior court is directed to modify the abstract of judgment to include all of the additional fees and fines set forth in section 2. of our DISCUSSION, which total $460. The modified abstract of judgment should then be sent to the Department of Corrections. The judgment as modified is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

FLIER, J.

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^[1] These included committing lewd and lascivious acts on a minor under the age of 14 (Pen. Code, 288, subd. (a)), engaging in oral copulation with a minor under the age of 14 (Pen. Code, 288a, subd. (c)(1)), and exhibiting harmful matter to a known minor with the intent to seduce the minor (Pen. Code, 288.2, subd. (a)).

^[2] While Jackson alleged that his confession was coerced, the court chose to rule first on the issues dealing with his arrest on his property. After the suppression motion was denied, Jackson did not press the coercion point. Instead, he pleaded guilty. On appeal, he raises no issues concerning the voluntariness of his confession.

^[3] In his opening appellate brief, Jackson refers to a sex videotape that was taken from his house. However, he introduced no evidence and made no argument about that videotape below and never makes any argument about the tape in his appellate briefs. We therefore deem the issue waived. (People v. Marks, supra, 31 Cal.4th at p. 218; People v. Beltran (2000) 82 Cal.App.4th 693, 698, fn. 5 (Beltran).)

^[4] Even though we do not decide the two main issues raised by Jackson, we disagree with his ruse contention. First, as respondent points out, Reyes is at odds with numerous other decisions that have authorized such ruses, and is therefore best viewed as an unpersuasive anomaly. (See, e.g., People v. Colt (2004) 118 Cal.App.4th 1404, 1409; People v. Trudell (1985) 173 Cal.App.3d 1221, 1229-1230.) Second, regardless of Reyess validity, as respondent also notes, Jackson was not tricked into stepping outside his front door. Instead, he volunteered to do so without prompting.

^[5] The only possible basis for such a contention we could find came from an isolated portion of Castillos cross examination testimony. Defense counsel asked Castillo if he made any attempt to obtain an arrest warrant. Castillo responded by asking whether the question concerned the felony or for . . . . Defense counsel interjected: After you got the case. You know your office had the case for a year. Castillo answered that he felt [he] needed to develop additional evidence before [he] could present this case for a felony warrant. However, Castillos answer came in response to a compound question whether he made any attempt to obtain an arrest warrant after he got the case, followed by the statement that his office had had the case for a year. His answer can be viewed as a response to whether he sought a warrant when he first got the case, without any bearing on the events of the next year. This is borne out by Castillos later cross examination testimony, where he denied that he did not seek an arrest warrant because he did not yet have enough evidence to show probable cause. Combined with Castillos testimony that he intended to arrest Jackson if he found him that day, we believe the court could conclude that Castillo believed he had probable cause to arrest Jackson when that arrest took place. Ultimately, however, Castillos subjective belief about the existence of probable cause is irrelevant because, as we conclude post, objectively there was probable cause to make the arrest.