P. v. Jones

Filed 6/10/08 P. v. Jones CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Anne H. Egerton, Judge. Affirmed in part and modified in part and remanded.

Randy S. Kravis, 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, Senior Assistant Attorney General, Jason Tran and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

LaHeaven V. Jones appeals from judgment entered following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5 and his no contest plea to count 2, possession of a controlled substance (Health & Saf. Code,  11350, subd. (a).)[1] In accordance with the plea agreement, he was given a suspended sentence of three years in prison and placed on probation, upon certain terms and conditions which included that he complete a one-year residential drug treatment program. He contends the trial court erred in denying his motion to suppress evidence, that one of his probation conditions must be modified and that the minute order must be corrected to reflect the trial courts oral pronouncement of another condition of probation. For reasons stated in the opinion, we affirm the judgment, modify a condition of probation and remand the matter to the trial court to correct its minute order.

FACTUAL AND PROCEDURAL SUMMARY

On October 13, 2006, at approximately 4:30 p.m., Los Angeles Police Officer Asatur Mkurtchyan was investigating a complaint of possible sales of narcotics at 3815 South Normandie in Los Angeles. The complaint was from an anonymous citizen and gave a description of the individual selling the narcotics.

When Officer Mkurtchyan arrived at the location, he observed two structures on a corner lot with a chain-link fence around the perimeter of the lot. The front or main house faced Rolland Curtis and the smaller structure, which appeared to be a garage converted into a bungalow, faced South Normandie. Officer Mkurtchyan walked through the open gate and approximately three feet to the door of the bungalow. The wooden door to the residence was open and when Officer Mkurtchyan looked through the metal security door, he saw a coffee table directly in front of the door and appellant and a woman sitting on a couch behind the coffee table.[2] The television was on and Officer Mkurtchyan believed there were lights on inside the room. As he knocked on the security door, he said, Police officers, were conducting a narcotics investigation. When he announced his presence, appellant instantly grabbed a clear plastic bag containing small off-white solids, which appeared to be rock cocaine, and ran to a back room. The woman remained seated on the couch.

Officer Mkurtchyan told his partners what had just occurred and that he believed appellant was going to destroy the contraband. Using a hook and ram, the officers pried open the security door. Officer Mkurtchyan detained the woman and his partners went to the bathroom where appellant had run. When appellant emerged with Officers Reyes and Pianeamita, appellant was naked. Earlier, when appellant was sitting on the couch, he was wearing a shirt and pants. Appellant matched the description given by the complainant of the person selling the drugs. After appellant had been placed in handcuffs and dressed, Officer Mkurtchyan looked into the bathroom and smelled a bleach kind of an odor.

Los Angeles Police Officer Valentin Reyes was working with Officer Mkurtchyan and upon entering the subject residence was directed to the bathroom. Officer Reyes immediately opened the bathroom door and saw appellant, naked, standing in the bathroom. There were clothes on the floor and the water was running in the bathtub, but the bathtub was not full at all. Officer Reyes, with the assistance of Officer Pianeamita, detained and handcuffed appellant. As appellant walked out of the bathroom, he requested his pants and Officer Pianeamita retrieved the pants from the floor. Under the pants, Officer Reyes saw money and a clear plastic baggie containing five to six off-white solid rocks resembling rock cocaine.[3] Officer Reyes smelled the odor of bleach in the bathroom. He knew that bleach is commonly used to destroy evidence, specifically, rock cocaine or any other controlled substance. Based on the money that was found on the floor with the rock-like substance, and assuming the substance was rock cocaine, it was Officer Reyess opinion the rock cocaine was possessed for sale.

When appellant was arrested, a field identification card was completed, and appellant stated his address was 1267 88th Street in Los Angeles. He lived approximately 50 blocks away from the site of his arrest. The woman present at the residence indicated she lived there.

Joe Rogers, an investigator for the Los Angeles County Public Defenders Office testified for the defense that he went to the subject residence on South Normandie to take photographs. He was there in the middle of a sunny day and when he looked through the screen of the metal security door he was not able to see inside the residence. He was approximately one foot from the door and never put his head against the door to look in. He could not see if there was another door behind the security door, but learned that the second door was open. There were no lights on inside the house.

Appellant testified the woman who lived at the residence was Legeed Valstrades, a friend of his family. She allowed him to use her shower because the shower at his mothers house was not working. When the police arrived that day, he was in the bathroom with the door locked, taking a shower. The police broke the door open
and . . . ran in with [their] guns drawn. Appellant was not planning to spend the night at that location.

In ruling on the motion to suppress evidence, the trial court stated, Number one, respectfully I dont really find [appellants] testimony about taking the shower credible. For one thing, when people go to somebody elses house to take a shower, you would ordinarily take with you a change of clothing rather than putting on the same clothing back on that you had taken off to take a shower. [] Second, even assuming that he had been there to take a shower, I dont think that under the case when it talks about overnight[] visitors and the rights to exclude others that as a casual visitor, even assuming he was there to take a shower, that is sufficient under the case to establish that he had all the subjective and objective reasonable expectations of privacy on the premises. The court denied the motion on that preliminary issue. The court continued as it had said before, that I dont think [Mkurtchyan] was very credible. I think if Mr. Jones had demonstrated a reasonable expectation of privacy, we may well have a different situation. I am not reaching the merits of the motion. Because I dont think he has met his burden on that at all its a mere preponderance.

DISCUSSION

I

An appellate courts review of a trial courts ruling on a motion to suppress is governed by well-settled principles. [Citations.] [] In ruling on such a motion, the trial court (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 [trial] courts resolution of each of these inquiries is, of course, subject to appellate review. [Citations.] [] The courts 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. [Citation.] (People v. Alvarez (1996) 14 Cal.4th 155, 182, quoting People v. Williams (1988) 45 Cal.3d 1268, 1301; accord, People v. Ayala (2000) 23 Cal.4th 225, 255.)

The Fourth Amendment protects an individuals reasonable expectation of privacy against unreasonable intrusion on the part of the government. (People v. Jenkins (2000) 22 Cal.4th 900, 971.) [T]he United States Supreme Court has stated that in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one which 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. [Citations.] The defendant must assert a reasonable expectation of privacy in the particular area searched or thing seized in order to bring a Fourth Amendment challenge. [Citation.] (People v. Jenkins, supra, 22 Cal.4th 900, 972.) A defendant has the burden at trial of establishing a legitimate expectation of privacy in the place searched or the thing seized. [Citations.] (Ibid.)

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 [is] considered. [Citation.] Among the factors sometimes considered in making the determination [is] 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.)

While an overnight guest may have a legitimate expectation of privacy in the home where he is staying (Minnesota v. Olson (1990) 495 U.S. 91, 99; People v. Cowan (1994) 31 Cal.App.4th 795, 798-799) a casual transient visitor generally does not. (People v. Cowan,supra, 31 Cal.App.4th at pp. 798-800.) In the instant case, the evidence only showed that appellant was in the house as a transient visitor. Appellant did not claim to be an overnight guest but rather admitted he did not intend to spend the night. Further, no evidence was presented that he had a possessory interest in the residence, for example, that he had the authority to be in the residence alone, to enter without permission, to store anything there, to invite anyone (with or without the hosts approval), or to visit without advance notice. (Id. at p. 800.) Appellant failed to establish he had a legitimate expectation of privacy.

While normally a person has a reasonable expectation of privacy in a bathroom (see People v. Triggs (1973) 8 Cal.3d 884, 892; People v. Henderson (1990) 220 Cal.App.3d 1632, 1648) the trial court here explicitly found appellants testimony that he was in the bathroom taking a shower not credible. Appellant, who had no reasonable expectation of privacy in the home of another, cannot then flee to a bathroom and pretend to take a shower to avoid the police, and successfully argue he had a reasonable expectation of privacy in the bathroom. The trial court properly denied appellants motion to suppress evidence.

II

Appellant contends the probation condition which instructs him to stay away from places where users or sellers congregate is constitutionally overbroad and vague and must be amended to require knowledge of the character of such places. Respondent agrees. As the appropriate remedy is to modify the condition to include a knowledge requirement (see In re Sheena K. (2007) 40 Cal.4th 875, 891-892), we will do so.

III

Appellant contends and respondent agrees the minute order at page 74 of the Clerks Transcript should be corrected to reflect the trial courts verbal imposition of a knowledge requirement within the condition of probation that he not associate with people he knows to be controlled substance users. The minute order must be corrected to conform to the oral pronouncement of the court. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Sheena K.,supra, 40 Cal.4th at pp. 891-892.)

DISPOSITION

The judgment is affirmed. Appellants probation condition that he stay away from places where [controlled substance] users or sellers congregate is modified to require he stay away from places he knows to be where users or sellers congregate. Further, the matter is remanded to the trial court to correct the minute order to conform to the oral pronouncement of the court that appellant not associate with people he knows to be controlled substance users.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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[1]The information charged appellant in count 1 with the crime of possession for sale of cocaine base in violation of Health and Safety Code section 11351.5. Pursuant to the negotiated plea, the information was amended to add count 2 and count 1 was dismissed.

[2]Officer Mkurtchyan testified he put his hand to the metal security door and leaned forward to see inside. The court described the officers movements as The witness put his left hand up like he was shading, perpendicular to his eyebrows, as if he were shading his eyes, and then looked as if he was sort of peering in through the door. The officer believed his hand was actually touching the door.

[3]According to the police report written by Officer Reyes, after the location had been secured, appellant had been detained and after someone was doing something to get a search warrant . . . the pants were retrieved and then this baggie of off-white substance was . . . found . . . .