P. v. Mode

Filed 5/19/08 P. v. Mode CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

A jury convicted defendant Britton Mode of two counts of receiving stolen property (Pen. Code,  496, subd. (a)), and misdemeanor counts of possession of a controlled substance (Health & Saf. Code,  11377, subd. (a)) and unauthorized possession of a hypodermic needle (Bus. & Prof. Code,  4140). The trial court sentenced defendant to three years in state prison. Defendant contends the trial court erred by denying his motion to suppress and by mentioning uncharged crimes to the jury. The motion to suppress was properly denied and any error in mentioning uncharged crimes is harmless. Accordingly, we affirm.

I. THE MOTION TO SUPPRESS

A. Facts

We take the facts from the search warrant affidavit and other related documents, as well as defense testimony at the hearing on the motion.

David Mason was a Code Enforcement Officer for the County of Del Norte. On May 25, 2005, Mason obtained an inspection warrant to conduct an inspection of 1720 Parkway, Crescent City, due to numerous code violations on the property. He posted the inspection warrant on the property on May 31.

On June 1, Mason tried to inspect the property under the authority of the warrant. He was accompanied by sheriffs deputies for his protection, as he was unarmed.

Mason observed numerous additional code violations which he believed posed immediate threats to health and safety and constituted hazardous conditions. Defendant arrived at the property and accused Mason of trespassing. Mason explained to defendant that he had a warrant authorizing inspection of the property, and that refusing to permit an inspection was a misdemeanor. Defendant replied that he wanted to be arrested. The sheriffs deputies took him into custody.

On June 14, Mason obtained a forcible entry warrant for 1720 Parkway. He served the warrant at 8:50 a.m. on June 15, accompanied by sheriffs deputies. The deputies knocked on the front door and received no response. They tried to force the front door. The roll-up garage door adjacent to the front door was opened by Edwin Bergren. The deputies detained Bergren and entered the building to look for other occupants and to secure the area. They found Rick Voight sleeping on a sofa, and detained him for officer safety.

Once the deputies had determined that the building was safe to enter, Mason conducted his inspection and found numerous code violations.

Detective Steve Morris was one of the deputies accompanying Mason. As he conducted a security sweep of the building, Morris saw a number of toolboxes and auto diagnostic equipment that were apparently not being used. There was also a box of tools and equipment that a technician would use to work on a cable TV system.

In particular, Morris noticed an especially expensive looking SNAP ON rolling tool cabinet. The cabinet had a combination lock on the front. Morris recalled that such a cabinet had been stolen in a June 2004 burglary he was currently investigating.[1]

Morris returned to the sheriffs department and reviewed the SNAP ON stolen property case. He telephoned the son of the deceased stolen property victim, who went to the scene and identified the tool cabinet as his fatherswithout entering the building. The victims son gave police the combination to the lock, which opened the toolbox.[2]

The deputies also saw a Miller Bobcat 250 arc welder which they believed to have been stolen. The arc welder, which was originally blue, had been repainted bright orange.

Morris drafted a search warrant affidavit and obtained a warrant. He executed the warrant and found stolen property. Morris also found a hypodermic needle containing liquid methamphetamine in a trailer on the property in which defendant was living.

The defense presented three witnesses at the hearing on the motion to suppress. Bergren testified that officers put guns to his head after he opened the door, and forced him to the ground. He claimed the officers ransacked through everything before the search warrant arrived. Laura Ann Harris testified that she went to the property after defendants sister-in-law called her and said there were police officers at the property. She claimed the police had searched through defendants tools prior to the arrival of the search warrant. Defendant testified that the police had searched through his tools and cut every lock off of everything prior to the search warrants arrival.

The motion to suppress focused on the observations and identification of the stolen SNAP ON tool cabinet by the victims son.[3] The trial court denied the motion as follows:

Well, the evidence as I understand it is that they brought [the victims son] to the scene. The declaration says they had him stand outside of the door and look in. I dont think thats material whether he actually crossed the threshold or not. But their statement is that he did not. And that he . . . described it in a way that appears to be accurate. He then provided them with a combination. They tried the combination and it functioned. And thats how I read the evidence. And I dont find anything contrary to the law in that. And, therefore, the motion is denied.

B. Discussion

Defendant contends the trial court erred by denying his motion to suppress. He appears to make two distinct subarguments: (1) that the police conducted a search of the entire building at 1720 Parkway prior to the issuance of the search warrant obtained by Morris; and (2) that the police conducted an improper search by allowing the toolbox owners son to view and identify the toolbox, and by testing the lock combination provided by the owners son. We reject both contentions for the following reasons.

In reviewing a denial of a motion to suppress evidence, we view the record in the light most favorable to the trial courts ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] (People v. Jenkins (2000) 22 Cal.4th 900, 969 (Jenkins).) The trial court is the sole judge of the credibility of witnesses. (People v. Leyba (1981) 29 Cal.3d 591, 596.) While we defer to factual determinations supported by substantial evidence, we independently review the trial courts application of the law to the facts. (Jenkins, supra, at p. 969.)

As to subargument (1), the trial court implicitly found that the officers conducted a security sweep, not a search, prior to the arrival of the search warrant. The trial court was entitled to, and did, reject defense testimony to the contrary.

As to subargument (2), the police did not conduct an improper search. Morris saw the toolbox in plain view and suspected it might be stolen property. An observation of an item in plain view is not a search. (People v. Shepherd (1973) 33 Cal.App.3d 866, 870.) And an officer is entitled to examine property he reasonably suspects is stolen. (People v. Roberts (1956) 47 Cal.2d 374, 376, 379-380 [officers who suspected radio was stolen could pick it up and examine its serial number]; People v. Clark (1989) 212 Cal.App.3d 1233, 1238-1239.) Morris suspected that the toolbox was stolen in the theft case he was currently investigating. He had every right to contact the theft victims son, and have him come to the property and identify the toolbox as his fathersand as stolen property. At that point, the officers had probable cause to believe the property was stolen, and thus had the right to test the combination.[4]

In addition, the officers had reasonable grounds to believe the arc welder was stolen. All this information was used to obtain a search warrant.

There is no Fourth Amendment violation. The trial court properly denied the motion to suppress the evidence found at 1720 Parkway.

II. THE MENTION OF UNCHARGED CRIMES

At the outset of trial the court read the information to the jury. The court read a charged special allegation that defendant was on bail or OR when he committed the charged offense of possession of a firearm by a felon. Both the firearm charge and the special allegation were ultimately dismissed.

Defendant complains that when the court read the special allegation to the jury, the court read the offenses for which defendant was on bail or OR: previously filed charges of death threat, assault with a deadly weapon, attempt to commit extortion, cruelty to a child, battery . . . possession of [a] controlled substance, [and] transport or sale of a controlled substance . . . . He also complains that, under circumstances we need not detail, the jury may have been led to believe that he admitted these offenses.

There was no objection to the reading of the previously charged offenses. The trial court offered to give a curative instruction, but defendant declined. Defendant now claims the reading of the previously charged offenses was inflammatory and prejudicial.

We need not discuss the merits of this contention. Any error is harmless under any standard. Defendant was convicted of possessory offenses. There is no reasonable doubt that he possessed the stolen property and the hypodermic needle filled with methamphetamine. The reading of the offenses could not possibly have had any impact on the verdicts.

III. DISPOSITION

The judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Stein, J.

______________________

Swager, J.

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[1] While not before the court at the time of the suppression hearing, the trial testimony of Mason and Morris confirmed that the initial entry by the deputies was a security sweep to check for other occupants. Morris also testified that he immediately thought the tool cabinet might be stolen property.

[2] One of the deputies who dealt with the victims son testified at trial that the son did not enter the shop. The son testified that he did, but the testimony is less than clear. His entry may have been after the deputies discovered that the combination provided by the son opened the toolbox.

[3] This is what the defense identified as its focus at the motion hearing, prior to the testimony. The court took the matter under submission. Three days later in closing argument, defense counsel seemed to also argue that the police had searched prior to the warrants arrival.

[4] This fact pattern does not fit that of Arizona v. Hicks (1987) 480 U.S. 321, 325-327, in which the officers lacked probable cause to believe stereo equipment was stolen when they turned it over to look at serial numbers.