P. v. Carter

Filed 11/1/06 P. v. Carter CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Shari Silver, Judge. Affirmed with directions.

Juliana Drous, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Nardell U. Carter appeals from the judgment of conviction entered after he pled guilty to two counts of forgery (Pen. Code, §§ 470, subd. (d), 475, subd. (c); counts 1 & 6) and admitted that he served three prior prison terms (id., § 667.5, subd. (b)). The trial court sentenced defendant to state prison for a total term of six years and dismissed all remaining counts.

On appeal, defendant challenges the propriety of the order denying his motion to suppress evidence (Pen. Code, § 1538.5). Specifically, defendant contends that the warrantless search of his residence was not justified, in that he was not on parole at the time the search was conducted. Finding no merit to this contention, we affirm the judgment with directions.

FACTS

On July 22, 2004, Los Angeles Police Officer Miguel Nunez responded to the Bank of America located at 13935 Foothill Boulevard in Los Angeles after receiving a radio call reporting that a woman had attempted to cash a forged check. Officer Nunez learned that earlier in the day, an older man, later identified as defendant, had cashed a check on the same account as the woman. Officer Nunez obtained the check defendant had passed. Defendant's driver's license number was written on the check. Officer Nunez also learned that defendant had been seen driving an older model two-door burgundy or purple Chevrolet Corvette.

Once back at the police station, Officer Nunez ran defendant's name through a computer database and obtained defendant's address and other personal information, including the fact that defendant was on parole. Officer Nunez later drove by defendant's residence but did not see a Corvette.

On the morning of July 26, 2004, Officer Nunez, along with his partner Officer Mendoza, again drove by defendant's residence.[1] At that time, a burgundy Corvette was parked in the driveway. The officers returned to the police station to secure back up and to devise a plan to lure defendant out of his house.

Upon their return to defendant's residence, the police used a ruse to get the occupants of the residence, including defendant's mother, to step outside. Defendant came out of an attached garage, which his mother identified as defendant's residence. Upon inquiry by Officer Mendoza, defendant confirmed that he was on parole. Defendant was arrested for the crime of forgery and taken to the police station.

Back at the station, the police confirmed that defendant was on active parole. Believing it was unnecessary to obtain a warrant to search defendant's residence due to his parole status, the officers returned to the garage in which defendant lived and waited for his parole agent, Angelina Barajas, to arrive. Following her arrival, officers searched the garage and seized various items.

With regard to defendant's parole status, defendant was released from prison on January 25, 2003. In December 2003, defendant's prior parole officer submitted an activity report recommending that he be retained on parole. On December 31, the parole office received the Board of Prison Term's (BPT) decision agreeing with the recommendation to retain defendant on parole. Defendant was to remain on parole with a discharge date of January 25, 2006.

In March 2004, Barajas started supervising defendant. She met with him in March, April and June. During these meetings, Barajas maintained that he was no longer on parole. He believed that unless the BPT took action to extend parole, his parole automatically discharged. In response to defendant's inquires, Barajas told defendant that to the best of her knowledge, he still was on parole. Barajas did not have any information as to whether defendant was notified of the BPT's decision to retain him on parole.

DISCUSSION

Penal Code section 3001, subdivision (a), in relevant part provides: â€