P. v. Lauri
Filed 1/30/14 P. v. Lauri CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JAYSUN EDWARD LAURI and ANNALISA JOY
LAURI,
Defendants and Appellants.
G049100
(Super. Ct. Nos. FSB053697;
FSB054367;
FSB053658)
O P I N I O N
Appeal
from a judgment of the San Bernardino
Superior Court, Donna G. Garza, Kyle S. Brodie, and J. David Mazurek, Judges. Affirmed as modified.
Richard
Jay Moller, under appointment by the Court
of Appeal, for Defendant and Appellant Jaysun Edward Lauri.
Laurel
M. Nelson, under appointment by the Court of Appeal, for Defendant and
Appellant, Annalisa Joy Lauri.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, William Wood and Scott C. Taylor, Deputy Attorneys General,
for Plaintiff and Respondent.
* * *
A jury
convicted Jaysun Lauri of possession of marijuana (Health & Saf. Code,
§ 11357, subd. (e); count 2), felon in possession of a firearm (Pen. Code,
former § 12021, subd. (a)(1); counts 7 and 13; all statutory references
are to the Penal Code unless noted), possession of a controlled substance with
a firearm (Health &
Saf. Code, § 11370.1, subd. (a); count 9), possession of methamphetamine (Health
& Saf. Code, § 11378; counts 10 and 14), child endangerment
(§ 273a, subd. (a)); counts 11 and 12), and transportation of
methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 15).
was personally armed with a firearm (§ 12022, subd. (c)), and found he had
suffered four prior drug convictions (Health & Saf. Code, § 11370.2,
subd. (c)). The jury convicted Annalisa
of possession of a controlled substance with a firearm (Health & Saf. Code,
§ 11370.1, subd. (a); count 9), possession of methamphetamine (Health
& Saf. Code, § 11378; count 10), and child endangerment (§ 273a,
subd. (a); counts 11 and 12).
Defendants
seek review of a sealed search warrant affidavit and in camera proceedings to ascertain
whether the trial court erred in
denying a motion to traverse and quash
the search warrant, and unseal the affidavit.
(See People v. Hobbs (1994) 7
Cal.4th 948 (Hobbs).) They also assert the trial court erred in
applying the good faith exception to the warrant requirement. (United
States v. Leon (1984) 468 U.S. 897, 922-923.) Finally, Jaysun argues the court erred in
denying his motion to suppress evidence found in a briefcase during a vehicle
stop. Annalisa also challenges several
probation conditions as unconstitutionally vague and overbroad. For reasons expressed below, we modify the
terms and conditions of Annalisa’s probation, and otherwise affirm the judgment.
Facts and Procedural Background
On the
afternoon of November
8, 2005, deputies with the San Bernardino
sheriff’s department executed a search warrant at 760 Audio, Jaysun’s
Victorville business. Jaysun ran into
his office when he spotted the deputies and barricaded the door. Deputies eventually gained entry, searched
the office, and found in Jaysun’s desk a bag containing 43 grams of
methamphetamine, small baggies, a scale, and a shotgun. Deputies also discovered at the business a
rifle, a pot or vase with a false compartment, a toolbox containing a handgun,
pay-owe sheets, a methamphetamine pipe, and ammunition. Jaysun had a bindle containing 4.3 grams of
methamphetamine in his back pocket.
Around 8:00 p.m. that evening, deputies executed a search warrant at the Lauris’ San Bernardino home. In the master bedroom closet, the officers
found a rifle with a sawed-off barrel and a shotgun, and another shotgun with a
sawed-off barrel under the bed. They
also found plastic bags containing marijuana remnants in the master bedroom,
and baggies containing 22 grams and 12 grams, respectively, of marijuana in a
dresser in the northeast bedroom. A
purse in the living room contained two additional baggies of marijuana.
Deputies
returned to the Lauris’ residence on the evening of December 14, 2005, to execute another search warrant.
They found the Lauris at home with their two young sons, ages five, and
eight months. The residence was dirty
and disorganized. Deputies found an
unsheathed machete on a dresser in the master bedroom. At various locations throughout the house,
deputies discovered two baggies of marijuana, a marijuana grinder, items and
substances that could be used in the manufacture and sale of methamphetamine, a
scale, and a casserole dish dusted with a white powdery substance later
determined to be methamphetamine. On hallway
shelves outside the bathroom, accessible to a child, deputies located a Band-Aid
box containing marijuana paraphernalia and small plastic baggies, a loaded
handgun, and gas masks. Deputies also
found a BB gun rifle in the baby’s crib.
In a Dodge Viper automobile, deputies found methamphetamine, a pipe, and
a loaded handgun.
Jaysun
told deputies he used methamphetamine every morning, and the Lauris admitted
they kept the guns for their own protection.
Annalisa denied using methamphetamine, but admitted using marijuana and
OxyContin. Both tested positive for
amphetamines, and Annalisa tested positive for marijuana metabolites. A urine test of their five-year old son was
positive for methamphetamine and amphetamine.
On December 26, 2005, deputies stopped a silver Chevrolet for traffic violations. Jaysun, the rear seat passenger, straddled a
briefcase on the floorboard. Attorney Don
Ferguson’s business card was attached to the briefcase, which contained 15
grams of methamphetamine in a large bag, and smaller bags contained lesser
amounts of the drug. A scale in the
briefcase had an “L†etched into it. The
briefcase also contained a photograph of Jaysun and his business card. Jaysun had $249 on his person, and deputies
also found two drug pipes. Ferguson denied
responsibility for the contents of the briefcase, although in May 2007, he
suffered a conviction for possession of methamphetamine for sale.
Jaysun
had previously suffered convictions in Orange County for
transportation and possession for sale of controlled substances in 1993 and
1994. Defendants testified and presented
evidence suggesting others may have possessed the rifle found at the business. They also denied that Jaysun was a drug
dealer, claiming the couple possessed the drugs found in their possession for
personal use.
II
Discussion
A. The Trial Court Did Not Err in Denying Motions to Unseal Confidential
Portions of the
to Traverse the Warrant, and to Quash the Warrant
Jaysun
asks this court to conduct an independent review of the sealed probable cause
affidavit related to search warrant VVSW05-530.
Law enforcement relied on this warrant to search Jaysun’s Victorville business,
760 Audio, on November
8, 2005.
Jaysun asks this court to determine whether the affidavit was properly
sealed, whether it contains material misrepresentations or omissions, and
whether it establishes probable cause for issuance of the warrant. The trial court addressed these issues during
an in camera hearing outside the presence of the defense on May 3, 2010.
All or
part of a search warrant affidavit may be sealed if necessary to protect the
identity of an informant who has provided probable cause for the issuance of
the warrant. (Hobbs, supra, (1994) 7 Cal.4th 948.) In such cases, where the defendant moves to
traverse or quash the warrant, the trial court is required to conduct an in
camera hearing. (Id. at p.
972.) The court must determine whether
sufficient grounds exist to maintain the confidentiality of the informant’s
identity, and whether the extent of the sealing is necessary to protect the
informant’s identity. (Ibid.) Absent a waiver from the prosecutor, the
defendant or his attorney may not attend the in camera hearing. (Id. at p. 973.)
If the
trial court determines all or part of the affidavit was properly sealed, it
must next decide if there is any merit to the defendant’s motion to traverse. (Hobbs, supra, 7 Cal.4th at p.
974.) The court must determine whether
the affidavit included a false statement made knowingly and intentionally or
with reckless disregard of the truth, and whether the false statement is
necessary to a finding of probable cause. (Ibid.) The trial court must make this determination
based on the public and sealed portions of the affidavit and any testimony
offered at the in camera hearing. (Ibid.)
The court must deny the traversal motion
if it lacks merit, but if there is a reasonable probability the defendant will
prevail on the motion, the prosecutor must be given the option of disclosing
the sealed materials, or suffering the entry of an adverse order. (Id. at pp. 974-975.)
If the
defendant moves to quash the warrant, the procedure is similar. The trial court must determine whether under
the totality of the circumstances the affidavit and related materials furnished
probable cause for the issuance of the warrant. (Hobbs, supra, 7 Cal.4th at p.
975.) The court must deny the motion to
quash if the affidavit in support of the warrant demonstrates probable cause to
issue the warrant, but if the court determines the defendant has a reasonable
probability of quashing the warrant, the prosecutor must disclose the sealed
materials to the defense to avoid having the warrant quashed. (Ibid.)
followed the proper procedure. Our
independent review of the record, including the sealed portions, confirms the
trial court’s determinations. We agree with the trial court sufficient grounds
existed to maintain the confidentiality of the informant’s identity, and the
extent of the sealing was necessary for that purpose. We also agree there is no
reasonable probability that Jaysun could prevail on his motions to traverse and
to quash the warrant.
name="_ftnref2" title="">[2] Because the initial warrant was not
defective, the subsequent search warrant obtained to search the Lauris’ home on
November 8,
2005, was not invalid for that reason.
B. The Record Does Not Reflect Jaysun Moved to Quash the Warrant Used to
Search 760 Audio on
Jaysun
contends he filed a motion to suppress evidence found when officers executed a
search warrant at 760 Audio on December 14, 2005. The parties do not describe what evidence
from the search of 760 Audio on December 14, 2005, the court
admitted at trial. A search warrant
receipt lists only “paper work†as the “items taken†during the search. We have reviewed the page numbers of the
clerk’s transcript Jaysun cites to support his claim, but those pages refer to
his motion to suppress evidence obtained without a warrant during the December
26, 2005vehicle stop. The record does
not support Jaysun’s claim he moved to quash the warrant used to search 760
Audio on December
14, 2005. Although the court purported to “find probable
cause to search the business,†the record does not contain a motion to quash
the warrant. Consequently, Jaysun has
forfeited his claim the affidavit for the search of 760 Audio on December 14, 2005, did not establish probable cause to search.
In any
event, the affidavit supplied by San Bernardino Deputy Sheriff Eric Mello in
support of the December 14, 2005 search of 760
Audio cited the drug and other evidence discovered at 760 Audio and the Lauris’
home on November
8, 2005.
a Detective Doug Wolfe of the “Sheriff’s Intel Division†had eavesdropped on a
December 13, 2005 phone call between a high security jailed Aryan Brotherhood
gang member named Joseph Hayes and a person identified as Sackett. In the phone call, Hayes advised Sackett that
Jaysun sold drugs from 760 Audio. Hayes
provided an address and described Jaysun’s car, a black Dodge Viper. Hayes stated another “guy in the business []
packed†a gun and told Sackett there was a false floor under a television
stand. Hayes also stated there was a “rumor
that Lauri had a large stash at his residence.â€
Hayes suggested Sackett follow Jaysun home from 760 Audio, “jump†Jaysun
and torture him until he disclosed where he kept his stash. Based on the discovery of methamphetamine and
weapons at 760 Audio on November 8, 2005, and Hayes’s assertion
on December 13 that Jaysun was dealing drugs from 760 Audio, we agree with the
court there was sufficient probable cause to search 760 Audio on December 14, 2005.
C. The Trial Court Did Not Err in Denying Annalisa’s Motion to Suppress
Evidence Found in the Search of the Lauris’ Home on December 14, 2005
Annalisa
moved to quash the warrant authorizing the search of the Lauris’ San Bernardino home
(SBSW05-0797) on December 14, 2005, and to
suppress evidence uncovered during the search.
Jaysun joined in Annalisa’s motion.
On July
29, 2010, the court granted the motion to
quash, finding the affidavit lacked probable cause. But on August 6, 2010,
the court denied a motion to suppress evidence seized from the Lauris’ home,
finding the good faith exception to the warrant requirement applied.
Deputy Mello
supplied an identical affidavit, described in the section above, to obtain the
residential warrant. Mello testified at
the suppression hearing on August 6, 2010, he had been a
sworn officer for 14 years, and he had conducted numerous narcotics
investigations during his four years as a narcotics detective. Mello stated drug dealers keep the drugs in
more than one location to prevent “anybody from ripping them off.†Mello explained Hayes was a high-ranking
member of the Ayran prison gang, Hayes’s information was consistent with the
discovery of drugs and weapons at Jaysun’s business and home on November 8, 2005, drug dealers often continue to deal even after an arrest, and
Mello believed the warrant affidavit provided probable cause to search. The trial court found it was not “unreasonable
for [the officers] to rely on the granting of the warrant†and denied the
suppression motion.
In
supra, 468 U.S. 897 (
the court held the Fourth Amendment exclusionary rule does not “‘bar the use in
the prosecution’s case in chief of evidence obtained by officers acting in
reasonable reliance on a search warrant issued by a detached and neutral
magistrate but ultimately found to be unsupported by probable cause.’†(People v. Camarella (1991) 54
Cal.3d 592, 596 (Camarella).)
“‘[A] warrant issued by a magistrate normally suffices to establish’†an
officer’s good faith belief. (Leon, supra, 468
U.S. at p. 922.) In some circumstances,
however, the officer will have no reasonable grounds for relying on the
magistrate. (Id. at pp. 922-923.)
Review is limited to an objective
examination of whether a “‘reasonably well trained officer would have known that
the search was illegal despite the magistrate’s authorization.’†(Camarella, supra, 54
Cal.3d at pp. 602-603.) Leon noted
four situations in which the good faith exception to the exclusionary rule
would not apply: (1) where the affiant misled the magistrate with information
the affiant knew was false or would have known but for the affiant’s reckless
disregard; (2) where the magistrate wholly abandoned his judicial role; (3)
where the affidavit was “‘so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable’â€; or (4) where the
warrant itself is facially deficient in particularizing the place and items to
be searched. (Leon, supra, 468
U.S. at p. 923.) In Camarella, the
court held that the relevant inquiry for the good faith exception is not
whether further investigation would have been reasonable, but whether a
reasonable officer would have known that the affidavit in support of the search
warrant was legally insufficient, and that he should not have applied for the
warrant. (Camarella, supra, 54
Cal.3d at p. 606.)
affidavit’s lack of probable cause rendered official belief in its existence
entirely unreasonable. Based on the
methamphetamine, scales, baggies and weapons found at 760 Audio on November 8,
2005, and the marijuana and weapons found at the Lauris’ home the same evening,
Hayes’s information on December 13, 2005, that Jaysun was dealing drugs, and
Mello’s experience that dealers hide drugs at more than one location and often
continue to deal in drugs after an arrest, we cannot say the affidavit’s lack
of probable cause rendered official belief in its existence as entirely
unreasonable. If anything, the affidavit
supports a probable cause finding. The
trial court did not err in relying on
D. The Trial Court Did Not Err in Denying Jaysun’s Motion to Suppress
Evidence Obtained from Search of the Briefcase on December 26, 2005
On April 12, 2010, Jaysun moved to suppress evidence obtained from the search of the
briefcase found during the vehicle stop on the evening of December 26, 2005. Jaysun was a passenger in a
Chevrolet driven by Michael Caywood. San Bernardino
deputies stopped the car for speeding.
Caywood made erratic movements inside the vehicle before stopping, and
told the investigating officers his license had been suspended. After confirming the license suspension, the
officers decided to impound the vehicle (Veh. Code, § 22651, subd. (p)),
directed the occupants out, and began an inventory search. An officer opened the briefcase, which had
been on the floorboard between Jaysun’s legs, and discovered methamphetamine
and a scale. Lauri claimed the briefcase
belonged to his attorney, Don Ferguson.
Jaysun
moved to suppress the evidence found in the briefcase. Although Jaysun’s trial counsel claimed the “briefcase
belonged to [] Lauri’s attorney,†he argued Jaysun had a possessory interest in
suppressing the contents of the briefcase because the prosecution established
standing by charging Lauri with possession of the drugs found inside the
attaché. The trial court found Jaysun’s
disclaimer of ownership at the time of the search defeated his legitimate
expectation of privacy in the briefcase’s contents. On appeal Jaysun argues he “possessed the
briefcase; he had the right to exclude others; he expected it would be free
from governmental invasion; and he took normal precautions to keep the
briefcase private, sitting between his legs in the car.â€
The
Supreme Court in Rakas v. Illinois (1978) 439 U.S. 128, 140, examined
the requirement a defendant show standing to claim a Fourth Amendment
violation, The Court explained, “the question is whether the challenged search
and seizure violated the Fourth Amendment rights of a criminal defendant who
seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination
of whether the disputed search and seizure has infringed an interest of the
defendant which the Fourth Amendment was designed to protect.†(Id. at p. 140.) This depends on whether the claimant has a
legitimate expectation of privacy in the invaded place. (Id. at p. 143.) Defendant has the burden of proving he or she
has a legitimate expectation of privacy in the area or item searched. (Rawlings v. Kentucky (1980) 448
U.S. 98, 104.) The court looks to the
totality of the circumstances to ascertain whether the defendant made a sufficient
showing. When deciding whether a
defendant has a sufficient expectation of privacy in the article at the time of
the search, the reviewing court will consider the preliminary statements of
ownership asserted by the defendant.
In United
States v. Hawkins (11th Cir. 1982) 681 F.2d 1343, 1344-1345, the
defendant denied ownership of a suitcase and any knowledge of the woman
carrying it just before law enforcement officials opened it and found heroin. (Ibid.)
At the suppression hearing, however, the
defendant asserted he owned the suitcase and the heroin. The appellate court held defendant’s
affirmative disclaimer at the time of the search defeated his Fourth Amendment
claim. (Id. at p. 1346; see People
v. Dasilva (1989) 207 Cal.App.3d 43 [the defendant lacked standing to
suppress evidence because he disavowed ownership of containers in the trunk of
the car he was driving at the time of the warrantless search]; People v.
Stanislawski (1986) 180 Cal.App.3d 748, 757 [defendant lacked standing
to suppress evidence because he denied having a possessory or proprietary
interest in the property seized].)
Based
on the foregoing authorities, we conclude Jaysun lacks standing to challenge
the search of the briefcase because he denied having a possessory interest in
it at the time of the search. Jaysun “ha[d]
in effect given the authorities the green light to proceed insofar as his []
own Fourth Amendment rights are concerned.â€
(People v. Dees (1990) 221
Cal.App.3d 588, 595; see also
88, 90 [court abandoned rule of “automatic standing†for defendants charged
with crimes of possession; under substantive Fourth Amendment principles “a
prosecutor may simultaneously maintain that a defendant criminally possessed
the seized good, but was not subject to a Fourth Amendment deprivation, without
legal contradiction.â€].)
E. Annalisa’s Probation Conditions
The
trial court suspended execution of a five-year, four-month prison term and
placed Annalisa on probation under various terms and conditions, including
service of a 365-day jail term. She complains
several of the other probation conditions are vague or overbroad.
Section
1203.1, subdivision (a), authorizes the court to place a defendant on probation
“upon those terms and conditions as it shall determine.†The discretion to determine proper terms and
conditions has limits, however. (People
v. Garcia (1993) 19 Cal.App.4th 97, 101.) “[A] condition of probation which requires or
forbids conduct which is not itself criminal is valid if that conduct is
reasonably related to the crime of which the defendant was convicted or to
future criminality.†(People v. Lent (1975)
15 Cal.3d 481, 486.) “[E]ven if a
condition of probation has no relationship to the crime of which a defendant
was convicted and involves conduct that is not itself criminal, the condition
is valid as long as the condition is reasonably related to preventing future
criminality. [Citation.]†(People v. Olguin (2008) 45
Cal.4th 375, 380.)
title="">[4]
Trial
courts must fashion precise probation conditions so the probationer knows what
is required. (Sheena K., supra, 40
Cal.4th at p. 890.)
is “ ‘ “ ‘so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application.’â€â€™â€ (People
v. Quiroz (2011) 199 Cal.App.4th 1123, 1128 (Quiroz).)
right, it must be carefully tailored and reasonably related to the compelling
state interest in reformation and rehabilitation. (Quiroz,
supra, at p. 1128; Sheena K., supra, 40 Cal.4th
at p. 890.) A “court may leave to the
discretion of the probation officer the specification of the many details that
invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely
open-ended.†(People v. O’Neil (2008)
165 Cal.App.4th 1351, 1358-1359 [probation condition forbidding defendant from
associating with all persons designated by his probation officer was “overbroad
and permit[ted] an unconstitutional infringement on defendant’s right of
associationâ€].)
Probation
condition No. 8 requires Annalisa to “Keep the probation officer informed of
place of residence and cohabitants and give written notice to the probation
officer . . . (24) hours prior to any changes.
Prior to any move provide written authorization to the Post Office to
forward mail to the new address.â€
Annalisa suggests the condition is vague because she should not “be
required to give 24 hours notice of something if she does not know it is about
to happen.†She also states the
condition “appears overly broad in that it would . . . prohibit any move to a
new residence – a constitutionally guaranteed right of travel – until she has
an opportunity to inform her probation officer and then wait 24 hours.†The Attorney General responds, “[i]t is
unlikely that a probationer would not be aware that she was changing residences
within 24 hours of such a change†and “a probation condition should not be
interpreted to presume a probation officer would act irrationally or
capriciously.†But the Attorney General
does not oppose Annalisa’s proposed modification. Accordingly, we modify the condition as
follows: Annalisa must “Keep the
probation officer informed of her place of residence and cohabitants and give
written notice to the probation officer twenty-four (24) hours before any move
or change in cohabitants, or as soon as she reasonably becomes aware of a move
or change, but no later than 24 hours after the move or change. Before any move provide written authorization
to the Post Office to forward mail to the new address.â€
Probation
condition No. 9 provides Annalisa must, “Permit
visits and searches of places of residence by agents of the Probation Dept.
and/or law enforcement for the purpose of ensuring compliance with the terms
and conditions of probation; not to do anything to interfere with this
requirement, or deter officers from fulfilling this requirement, such as
erecting any locked fences/gates that would deny access to probation officers,
or have any animals on the premises that would reasonably deter, threaten the
safety of, or interfere with, officers enforcing this term.†Annalisa contends the condition is vague and
should be modified to prohibit her from knowingly
deterring or interfering with probation or police officers. She explains, “Without knowing she was doing
so, [she] could inadvertently do something that deters officers from visiting
and searching her†residence “such as locking doors when she leaves . . . or
locking a gate for her own or her family’s safety. It is virtually impossible to know what
animals is vague because an “officer might be terrified of any dog [or other
animal], regardless of size or temperament†and the restriction impinges on her
right to own property. The Attorney
General responds “rather than a knowledge requirement, . . . [m]odifying this
condition to add a willful[ness] requirement would provide adequate specificity
without requiring the probation condition to list every potential problematic
circumstance, an impossible task.†The
Attorney General’s suggested modification, however, is implicit in all
probation cases because a court generally cannot find a defendant violated a
probation condition without determining the violation was willful. (People
v. Galvan (2007) 155 Cal.App.4th 978, 983.)
“Proper
supervision includes the ability to make unscheduled visits and to conduct
unannounced searches of the probationer’s residence. Probation
to the effective supervision of the probationer and thus assists in preventing
future criminality.†(People v.
Olguin (2008) 45 Cal.4th 375, 381 (Olguin).) This is especially true where the defendant’s
underlying offense was possession of controlled substances. Officers must have ready access to the
probationer’s residence to verify the probationer’s compliance and prevent the
disposal of illegal substances. Of
course, locked gates and fences, and potentially dangerous animals create unreasonable obstacles
to monitoring probationers. (Id.
at p. 381 [“[a]nimals can be unpredictable and potentially dangerous when faced
with a stranger in their territory, and some pose a great or even life-
to persons in these circumstancesâ€].)
Here,
the condition does not prohibit
Annalisa from locking her doors. It only
prohibits locked fences and gates,
impediments beyond the house that might delay access to the residence. Annalisa’s legitimate interests in security
and in owning animals can be balanced with the probation officer’s interests in
ensuring she complies with the terms of her probation. We therefore will modify the condition to
require Annalisa to notify the probation officer of any animals at her
residence, and to comply with the probation officer’s reasonable requests
concerning animals. (
probationer to notify probation officer of the presence of pets is reasonably
related to future criminality].) Annalisa
also must notify the probation officer of any locked gates and fences, and
provide the probation officer with the means to access her residence without
having her unlock a gate or fence (for example, by supplying the officer with a
key to the gate or fence). We modify probation
condition No. 9 as follows: “Permit
visits and searches of places of residence by Probation Department or law
enforcement agents to ensure compliance with the terms and conditions of
probation; probationer shall notify the probation officer of any animals at her
residence, and comply with the probation officer’s reasonable requests
concerning animals; probationer shall notify the probation officer of any
locked gates and fences, and provide the probation officer with the means to
access probationer’s residence without having probationer unlock a gate or
fence (for example, by supplying the probation officer with a key to the gate
or fence).â€
Probation
condition No. 10 provides Annalisa must “[n]either possess nor have under [her]
control any dangerous or deadly weapons or explosive devices or materials to
make explosive devices.†She complains
the phrase “dangerous or deadly weapon†can include common items, like kitchen
knives or screwdrivers that are used to inflict serious injury on another. She
also complains the condition is vague because it does not require possession to
be personal and knowing. The Attorney
General agrees the phrase is overbroad and suggests modifying the condition to
prohibit possession of firearms and items designed
for use as a weapon. We agree. Accordingly, we modify probation condition No.
10 as follows: “Neither possess nor have
under your control any firearm or item designed for use as a weapon.â€
We also
agree with the Attorney General an express knowledge requirement is unnecessary
because knowledge is an implicit element in the concept of possession. (People
v. Kim (2011) 193 Cal.App.4th 836, 846.)
This also applies to Annalisa’s complaint concerning probation condition
No. 12, which provides “Neither use nor possess any controlled substance
without medical prescription. A
physician’s written notice is to be given to the probation officer.â€
Condition
No. 14 provides, “Not possess any type of drug paraphernalia, as defined inâ€
Health and Safety Code section 11364.5, subdivision (d). In addition to complaining about the absence
of a knowledge requirement, Annalisa argues section 11364.5 prohibits “possessing
a significant number of items that have both drug-related and common uses.†The Attorney General responds “it appears
that the reference to the statute’s list of items of drug paraphernalia is the
best that can be done to describe the items appellant is prohibited from
possessing†and the court “should assume that the probation officer and trial
court in the case of a revocation hearing would review the context and
circumstances of the possession of any item believed to be drug paraphernalia
so as not to punish [her] for the possession of items unrelated to the use of
illegal drugs.†We note the statute
qualifies the various items listed with the phrase “intended for use or
designed for use†in various processes associated with illicit drugs. Thus, possession of “[b]lenders, bowls,
containers, spoons, and mixing devices†are not prohibited unless the devices
are “intended for use or designed for use in compounding controlled substances.†(Health & Saf. Code, § 11364.5,
subd. (d).) Annalisa would not violate
the condition unless she possessed a specified item designed for use with
controlled substances, or that she intended to use for that purpose. But the condition is overbroad to the extent
it prohibits possession of devices used with medically prescribed controlled
substances. There is no rehabilitative
interest in preventing a defendant from using instruments necessary for taking
prescription medication. We hereby
modify condition No.
14 to read: “Not possess any type of drug paraphernalia,
as defined in Health & Safety Code section 11364.5, subdivision (d), except for any item used to administer a
medication defendant was medically prescribed.â€
Condition No. 15 provides, “Neither possess nor consume any
alcoholic beverages nor enter places where such beverages are the chief item of
sale, and submit to tests at the direction of the probation officer.†She complains she could be violated for “constructive
possession of alcoholic beverages not known to her. She could also be violated for consuming
beverages – a holiday punch, for example – that, unknown to her, contained
alcohol.†As noted above, possession
requires knowledge, and probation violations must be willful. But the Attorney General agrees condition No.
15 should be modified to prohibit “knowing entry into any place for the purpose
of consuming alcohol.†We hereby modify
condition No. 15 to provide: “Neither
possess nor consume any alcoholic beverages nor knowingly enter a place for the
purpose of consuming alcohol.â€
Finally,
condition No. 18 provides, “Not associate with persons known to defendant to be
convicted felons or anyone actively engaged in criminal activity, or the
co-defendants (except those involved in recovery).†Annalisa contends the
condition is overbroad because it prohibits her from associating with
codefendant Jaysun, a convicted felon, who is her husband and the father of
their children (who have since been adopted by her mother-in-law). The Attorney General agrees “the condition
should be modified to exclude association with Jaysun Lauri as part of the
prohibited conduct.†We hereby modify
condition No. 18 to provide: “Not
associate with persons known to defendant to be convicted felons or anyone
actively engaged in criminal activity, except Jaysun Lauri.â€
III
Disposition
The probation conditions
are modified (§ 1260) as indicated above.
The trial court is directed to prepare an amended sentencing minute
order incorporating the modifications and to provide a copy to the parties and
the San Bernardino probation department. In all
other respects, the judgment is affirmed.
ARONSON,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
FYBEL, J.
To avoid confusion and for the
reader’s convenience, we refer to the defendants and appellants by their first
names. We do not intend this informality
to reflect a lack of respect. (
Cal.App.4th 1509, 1513, fn.2)
Our original record did not
contain affiant California Highway Patrol Detective Heath Kuhlmann’s unredacted
affidavit, which was used to obtain the warrant to search Jaysun’s business on November 8, 2005. The trial court reviewed
and declined to unseal that affidavit at an in camera review on May 3, 2010. The San Bernardino County
Superior Court subsequently advised this court Kuhlmann’s original affidavit
could not be located. In an order filed December 18, 2013, we directed the San Bernardino Superior to conduct a hearing to
obtain the original affidavit, or to authenticate and certify a copy of the
affidavit the court considered on May 3, 2010. A minute order dated January 6, 2014, reflects the trial court conducted a hearing and authenticated “an
accurate copy of the original affidavit considered by the trial court at the in
camera proceeding on May 3, 2010.†We have reviewed the authenticated copy of
Kuhlmann’s unredacted affidavit.
