P. v.
Filed 7/25/13 P. v. Lyon
CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
RYLEY LYNN LYON,
Defendant and
Appellant.
H038242
(Santa Cruz
County
Super. Ct.
No. F21996)
Defendant
Ryley Lynn Lyon pleaded no contest to felony
Safety Code, § 11352, subd. (a)) with a loaded firearm enhancement (Penal Code,
§ 12022, subd. (c)).
name="_ftnref1" title="">[1] Imposition of sentence was suspended for
three years, and defendant was placed on probation. Defendant’s plea came after he unsuccessfully
attempted to suppress evidence discovered as the result of a traffic stop based
on alleged violations of the Fourth
Amendment to the United States Constitution. On appeal, defendant contends the Superior
Court erred in finding defendant had forfeited certain arguments related to his
suppression motion by failing to raise them during his preliminary
hearing. Alternatively, defendant argues
he was denied effective assistance of counsel in violation of the Sixth Amendment
to the United States Constitution by
his trial counsel’s failure to preserve all Fourth Amendment arguments. For the reasons stated herein, we will affirm
the judgment.
I.
factual and
procedural background
On January 3, 2012 at approximately 4:00 p.m., Santa Cruz County Deputy Sheriff
Troy Zube was on patrol on Ocean Street
in Santa Cruz.
attention because it had expired registration tags. Additionally, the tail light fixture on the
driver’s side was hanging from the car and appeared to be attached only by its
electrical cable. Due to the apparently
expired registration and the hanging tail light, the deputy pulled the sedan
over. The car had two occupants, defendant
in the driver’s seat and Felicia Pyette in the front passenger seat. When Deputy Zube asked for identification,
Pyette informed him she was on felony probation with search terms. Deputy Zube later verified Pyette’s probation
status and search condition.
While
talking with the defendant and Pyette, Deputy Zube noted several items in plain
view from his vantage point outside the sedan.
In the back seat, he saw rolled papers that looked like targets one
would use at a shooting range, with holes in the center consistent with the
appearance of bullet holes. He also saw
two headsets that appeared to be used for ear protection when shooting a
gun. On the floorboard in front of the
front passenger seat at Pyette’s feet, he saw pieces of plastic with the ends
or corners torn off, which he recognized as “possibly packaging for heroin.â€
Deputy Zube
then asked Pyette to exit the sedan so that he could conduct a search pursuant
to her probation search condition. He
first patted down Pyette and, finding nothing, asked her to sit in the back of
his patrol car while he conducted a search of the sedan. To maintain safety, Deputy Zube also asked
defendant to sit in the patrol car during the vehicle search.
Deputy Zube
then returned to the sedan and confirmed that the papers in the back seat were
targets and that the headsets were of the type commonly used as ear protection
when firing guns. Based on the presence
of those items, the deputy asked defendant whether there was a gun in the
car. Defendant initially hesitated but
eventually told the officer there was a gun in the back seat. With this information, Deputy Zube returned
to the sedan and found a handgun loaded with six .45 caliber shells in the back
seat directly behind the driver’s seat within arm’s reach of both the driver’s
seat and front passenger’s seat. When he
examined the gun, the deputy noticed the serial number had been filed off.
Continuing
his search of the back seat area, Deputy Zube discovered a small plastic
container with eight grams of heroin and six grams of cocaine. The drugs were wrapped in clear plastic
similar to the plastic the deputy viewed on the floorboard in front of the
passenger seat. Also in the container
were clear plastic baggies, one containing powder residue. Next to the plastic container, Deputy Zube
found a digital scale with black, tar-like residue on the top consistent with
the appearance of heroin. Moving his
search to the front seats, the deputy inspected the pieces of plastic on the
passenger’s side floorboard and noted one of them appeared used because of
powder residue. In the ashtray, he found
approximately one gram of methamphetamine.
After
discovering the various illegal items in the sedan, Deputy Zube arrested
defendant. During a search of defendant,
he found .45 caliber shell casings, a counterfeit $100 bill, two pocket knives,
and $166 in cash.
Based on
the foregoing evidence, the People charged defendant with: (1) transportation of two controlled
substances, heroin and cocaine (Health & Safety Code, § 11352, subd. (a));
(2) the special allegation of transporting controlled substances while armed (§
12022, subd. (c)); (3) possession of controlled substances, heroin and cocaine,
with a firearm (Health & Safety Code, § 11370.1, subd. (a)); (4) receiving
stolen property (§ 496, subd. (a)); (5) carrying a loaded firearm in a vehicle
within a city (former § 12031, subd. (a)(1)); and (6) possession for sale of
controlled substances, heroin and cocaine (Health & Safety Code, § 11351).
At his
suppress all evidence found in the vehicle, arguing neither the expired
registration nor the hanging tail light gave the officer reasonable suspicion
to stop the sedan. The magistrate found
Deputy Zube had adequate suspicion for the traffic stop and held defendant to
answer the charges. Defendant then filed
a renewed motion to suppress in the Superior Court, arguing for the first time
that the search was unlawful because:
(1) nothing in plain view gave Deputy Zube probable cause to search the
sedan; and (2) Pyette’s probation condition did not justify the search of the
back seat. The Superior Court denied the
renewed motion, reasoning section 1538.5 allows only one full evidentiary hearing
regarding the suppression of evidence.
Citing People v. Bennett
(1998) 68 Cal.App.4th 396, the court found defendant’s failure to raise the new
theories at the preliminary hearing foreclosed his ability to raise them before
the Superior Court.
II.
discussion
On appeal,
defendant argues the Superior Court erred in refusing to allow him to raise the
plain view and probation condition scope issues in his renewed motion to
suppress. Alternatively, defendant
argues his trial counsel provided ineffective assistance by failing to raise
these suppression theories at the preliminary hearing. Because we will find Deputy Zube’s search was
reasonable in light of Pyette’s probation search condition, we will affirm the
Superior Court’s decision.
A.
Denial of Defendant’s Renewed Suppression Motion
In deeming
defendant’s plain view and probation search suppression theories waived, the
Superior Court relied on section 1538.5, subdivision (i), and
Section 1538.5, subdivision (i), sets out the procedure for suppressing
evidence in felony cases initiated by complaint. If, as here, a motion to suppress is brought
at the preliminary hearing, the defendant has a right to a full evidentiary
hearing regarding the suppression issues raised. However, if the defendant wishes to renew the
suppression motion once the matter is before the Superior Court, the scope of
the evidence to be considered is limited to the transcript from the preliminary
hearing, evidence that could not have reasonably been presented at the
preliminary hearing, and testimony from any witness who testified at the
preliminary hearing the People choose to recall. (§ 1538.5, subd. (i).)
In
allowing new issues to be raised at a second suppression hearing would be
contrary to the legislative intent to allow only one evidentiary hearing for
suppression motions, because the prosecution would often have to recall
witnesses or obtain testimony of additional witnesses to develop facts
associated with the new issues. (
preliminary hearing may not argue suppression theories in a renewed motion in
the Superior Court unless those theories were litigated at the preliminary
hearing. (Id. at pp. 406-407.)
Defendant
argues Bennett interpreted section
1538.5, subdivision (i), too broadly and that a defendant should be allowed to
raise new theories in a renewed motion to suppress so long as those theories do
not require any additional factual development.
With this interpretation in mind, defendant claims there was adequate
factual development at the preliminary hearing for the Superior Court to
determine the plain view and probation search theories for suppression. Here, however, we need not decide this
interpretive question because, even assuming section 1538.5, subdivision (i),
allows new theories in a renewed motion to suppress, Deputy Zube’s search of
the sedan was reasonable based on Pyette’s probation search condition.
B.
Scope of Pyette’s Probation Search Condition
The lower
court concluded the traffic stop was lawful.
When Deputy Zube asked for identification after stopping the sedan,
Pyette acknowledged that she was on probation and subject to search terms. After learning this, the deputy confirmed the
existence of the probation search condition with
County Superior Court records before searching the car. While defendant does not contest these
matters on appeal, in his opening brief he argues Deputy Zube’s search of the
entire passenger compartment exceeded the scope of Pyette’s probation search condition. In his reply, however, defendant notes the
recent California Supreme Court case of People
v. Schmitz (2012) 55 Cal.4th 909, and essentially concedes that his scope
argument no longer has merit in light of Schmitz. We agree with defendant’s concession.
In
noncommercial five-passenger car driven by the defendant, determined the front
passenger was on parole with search terms, and searched the passenger
compartment of the car on that basis. (
In the back seat area of the car, police found two syringes in a chips
bag and methamphetamine in a shoe. (
methamphetamine, claiming the scope of the passenger’s parole search extended
only to the front passenger’s seat and the floor in front of that seat. After the defendant prevailed in the
appellate court, the Supreme Court reversed.
(Id. at pp. 914-915.)
The Supreme
Court first contrasted reasonable expectations of privacy in a dwelling with
expectations in a vehicle, noting that the expectation is significantly lower
with regard to vehicles. (
The court also made clear that to determine the reasonableness of a
search for purposes of the Fourth Amendment, courts must look at the totality
of the circumstances. (
California authorities and concluded that once an officer is aware of the
parole status of a passenger in a vehicle, “the driver cannot reasonably expect
to shield the interior of the car completely from any search aimed at
uncovering criminal activity by the parolee.â€
(Id. at pp. 922-923.) Rather, the driver can only reasonably expect
the search to be strictly tied to the circumstances authorizing it and not
conducted in an arbitrary, capricious, or harassing manner. (Id.
at p. 923.)
Turning to
the scope of the allowable search based on a front passenger’s parole status,
the Supreme Court considered the following factors: (1) the government’s substantial interest in
supervising parolees; (2) the defendant’s reduced expectation of privacy in a
vehicle rather than a dwelling; (3) the further reduction of the defendant’s
expectation of privacy by virtue of allowing others to ride in his vehicle; (4)
the social conventions associated with noncommercial vehicles, where passengers
do not act as if they are confined to separate compartments and, to the
contrary, generally feel free to stow their belongings throughout the passenger
compartment; and (5) the front passenger parolee’s “ready access†to the front
and back seats due to the size of the vehicle.
(Schmitz, supra, 55 Cal.4th at
pp. 923-925.)
Balancing
these factors, the court held that the reasonable scope of the search of a
parolee in a noncommercial vehicle “is confined to those areas of the passenger
compartment where the officer reasonably expects that the parolee could have
stowed personal belongings or discarded items when aware of police
activity.†(Schmitz, supra, 55 Cal.4th.
at p. 926.) For the defendant in
reasonable scope extended to the back seat where the police found the syringes
and methamphetamine. (
Because the police found the evidence within the area covered by the
front passenger’s parole search condition, the court held the motion to
suppress should have been denied.
Though
parolees and probationers are not the same because parolees have already served
sentences, “ ‘[p]arole and probation are equally important aspects of the
state’s penal system and optimum successful functioning thereof is of
compelling public interest.’[Citation.] â€
(People v. Thomas (1975) 45
Cal.App.3d 749, 757.) Like parolees, if
subject to search conditions, probationers and their immediate surroundings can
be searched by the police without any suspicion so long as the officer is aware
of the condition and the search is not conducted in an arbitrary, capricious,
or harassing manner. (
Cal.App.4th 1180, 1196 [“a probationer does not waive Fourth Amendment
protection against searches that are arbitrary, capricious, or harassingâ€].)
Here,
Deputy Zube found the handgun, cocaine, and heroin on the back seat. The deputy testified the revolver was within
arm’s reach of both Pyette and defendant.
Additionally, the methamphetamine was located in the sedan’s ashtray
which, while not entirely clear from the record, presumably is located below
the dashboard between the driver and front passenger. This area would be within Pyette’s reach from
the front passenger seat. The areas
where Deputy Zube discovered the challenged evidence were therefore within the
area where an officer could have reasonably expected Pyette to have stowed
personal belongings. (Schmitz,
reasonable and defendant’s renewed suppression motion would have been denied
even if the Superior Court had allowed him to argue the new suppression
theories.
Because we
find the Superior Court would have denied defendant’s renewed motion to
suppress even with the addition of the plain view and probation condition
theories, defendant’s ineffective assistance of counsel argument must fail
because he is unable to show a reasonable probability that the outcome of the
suppression motion would have been different but for his trial counsel’s
alleged error. (See People v. Anderson (2001) 25 Cal.4th 543, 569.)
III.
conclusion
For the
foregoing reasons, we affirm the judgment.
____________________________________
Grover,
J.
____________________________
Premo,
Acting P.J.
____________________________
Mihara, J.
name="_ftn1" title=""> [1] All further unspecified statutory references
are to the Penal Code.
Zube’s testimony at defendant’s preliminary hearing.
