P. v. Jones

Filed 10/30/06 P. v. Jones CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Placer)

Defendant appeals from the judgment of conviction after a jury found him guilty of one count of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); ct. 1),^[1] 10 counts of first degree residential burglary (§ 459; cts. 2, 4, 7-11, 14-15, 19), four counts of attempted residential burglary

(§§ 664, 459; cts. 12-13, 17-18), two counts of vehicular burglary (§ 459; cts. 3 and 5), and one count of possession of a billy club. (§ 12020, subd. (a); ct. 23.)^[2] The trial court found true prior serious felony conviction allegations (§§ 1170.12, subd. (a)-(d), 667, subds. (a)(1), and (b)-(i)) and bail enhancement allegations (§ 12022.1) and sentenced defendant to an aggregate prison term of 53 years, 8 months.

On appeal, defendant argues that the trial court erred by denying his motion to suppress evidence obtained by the warrantless installation and monitoring of an electronic tracking system inside his truck and by denying his motion for self-representation under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).

We find no error and shall affirm the judgment.

FACTUAL BACKGROUND

Defendant went on a crime spree which began on December 27, 2002, and lasted until May 2, 2003, when he was arrested. During that period of time, he burglarized or attempted to burglarize 14 separate residences by using metal balls or marbles to break through a window located immediately adjacent to the front door. After breaking in, he took various items from several of the residences including jewelry, coins, cameras, and stamp collections. The jewelry and coins stolen from two of the residences was valued at approximately $180,000.

On March 24, 2003, Placer County Sheriff’s Deputy Nield stopped defendant for a traffic violation as he drove northbound on Watt Avenue into Placer County. When he pulled over, Nield noticed a billy club between the front seats and arrested him for possession of a dangerous weapon. Nield impounded defendant’s truck, at which time the Placer County Sheriff’s Department installed a Global Positioning Satellite (GPS) unit inside defendant’s truck and then released it to him.

When defendant was arrested on the present charges, deputies searched his truck where they found a wrist rocket slingshot with steel shot in the handle. During a search of his residence, deputies found a .22 caliber revolver in defendant’s garage and found many of the stolen items in his house, including cameras, a safe, jewelry, and coins.

DISCUSSION

I.

GPS Tracking Device

Defendant contends the trial court erred by denying his motion to suppress evidence obtained in violation of the Fourth Amendment when law enforcement authorities installed a GPS tracking unit in his truck and then monitored his movements for 39 days. Respondent contends defendant forfeited this claim as to the installation of the GPS unit and that monitoring an electronic tracking unit is not a search when it is attached to a motor vehicle. We agree with respondent on both points.

A. Suppression Hearing

Defendant moved to suppress evidence derived from the installation and monitoring of the GPS system on the grounds those actions constituted a warrantless and unreasonable search in violation of the state and federal constitutions. The defense’s sole theory was that installing and monitoring the GPS unit were searches and were “arbitrary, capricious and harassing.” The prosecution opposed the motion arguing that defendant was on searchable probation, installation of the tracking device was not an arbitrary or capricious search, defendant was not harassed, and monitoring the GPS unit was not a search.

At the hearing, defense counsel stipulated that defendant was on probation in Placer County when the tracking device was installed and was subject to a standard search condition.^[3] The prosecution stipulated that installation of the GPS device was a search because law enforcement officers entered defendant’s vehicle to install it.^[4]

The prosecution called Sergeant Addoms of the Placer County Sheriff’s Department, supervisor of the burglary unit, to testify to facts establishing that installation of the GPS unit was lawful.^[5] During this line of questioning, defense counsel interrupted and told the court that he was “aware . . . that as a result of the police investigation in this case . . . they came to the conclusion that my client was somehow involved in these burglaries. That’s not in issue in this motion. What is in issue is that they attached a GPS unit which tracked him continuously for about five weeks.” (Italics added.)^[6] Defense counsel then stipulated that installation of the device was not arbitrary and limited his motion to the claim that what flowed from installation of the device was harassing.

The hearing proceeded with the prosecution presenting the following evidence. Addoms was aware defendant was on probation and subject to a search condition when he decided it was necessary to install a GPS unit to conduct further surveillance. His decision was based in part on the department’s limited resources to conduct ground surveillance given defendant’s evasive driving pattern.

The GPS unit was installed in the cabin of the truck on March 24, 2003, when defendant was arrested for possession of a billy club and his truck was impounded. He was released that same day and his truck was tracked until May 2, 2003, when he was arrested for burglary.

Addoms explained that the GPS unit provides around-the-clock surveillance but is not always in operation. It deactivates when the vehicle to which it is attached is stationary for a period of time and then reactivates when it detects motion, at which time it records where, when, and how fast the vehicle is moving. The unit records data every two seconds, which may be retrieved and analyzed in real time or downloaded for later analysis. The data was used by officers solely to correlate defendant’s movements with locations of reported burglaries or possible routes to those locations.

The trial court denied defendant’s suppression motion. Relying on United States v. Knotts (1983) 460 U.S. 276 [75 L.Ed.2d 55] (Knotts)), the court found that monitoring the unit was not a search because the movement of the truck on a public road could be obtained from a visual surveillance. The court took note of the fact the GPS unit only monitored the movement of the truck, not the driver. The court further concluded that installation and monitoring of the unit was not a form of harassment because it was accomplished pursuant to a probation search condition, the police did not obtain or use any data they could not have seen in plain sight, the police had a legitimate law enforcement purpose, namely to gain intelligence concerning the particular modus operandi of numerous burglaries committed in a specific manner, they were occurring in multiple jurisdictions, and the defendant’s truck was identified as a suspect vehicle and defendant was identified as a suspect. Additionally, the court found that the GPS data was not analyzed constantly, and during the time his truck was being monitored defendant was unaware of the GPS unit in his truck and was never contacted or stopped by the police.

B. Analysis

In ruling on a motion to suppress, we review the trial “court’s resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.” (People v. Ramos (2004) 34 Cal.4th 494, 505.)

1. Installation

Defendant argues that installation of the GPS unit in his truck violated the principles announced in United States v. Knights (2001) 534 U.S. 112, 121 [151 L.Ed.2d 497, 506] (Knights).^[7] In Knights, the defendant was on searchable probation when police conducted a warrantless search of his house. The Supreme Court held that the search was lawful because the police had reasonable suspicion criminal conduct was occurring. Defendant herein asserts that the trial court failed to apply the Knights standard and the government failed to meet its burden by proving reasonable suspicion with facts known to the police prior to the time of the search.

Defendant has forfeited this claim by failing to raise it below. A motion to suppress must “set forth the factual basis and the legal authorities that demonstrate why the motion should be granted.” (§ 1538.5, subd. (a)(2).) Construing this requirement, the Supreme Court has held that when the prosecution has provided justification for a warrantless search, a defendant who fails to give the prosecution sufficient notice of the inadequacies of the search cannot raise the issue on appeal. (People v. Williams (1999) 20 Cal.4th 119, 136.) “‘[T]he scope of issues upon review must be limited to those raised during argument . . . . This is an elemental matter of fairness in giving each of the parties an opportunity adequately to litigate the facts and inferences relating to the adverse party's contentions.’” (Ibid., quoting People v. Manning (1973) 33 Cal.App.3d 586, 601.)

Here, defense counsel repeatedly advised the court and the prosecution that his motion was limited to the question whether the installation and monitoring of the GPS unit constituted harassment under People v. Reyes (1998) 19 Cal.4th 743^[8], a claim he does not raise on appeal. The claim he does raise on appeal was not made in the trial court. To the contrary, when the prosecution attempted to elicit testimony in support of the question whether installation of the GPS unit was reasonable, defense counsel interrupted and narrowed the issue to one of harassment. Although respondent addresses the merits of this claim, indicating the trial court did not limit the evidence and that there is substantial evidence connecting defendant to the burglaries, we will not take that measure because the trial court was never presented with and did not determine the factual predicate necessary to resolve the claim raised on appeal. Accordingly, because defendant failed to properly raise the issue in the trial court, he has forfeited his claim for appellate review.

2. Monitoring

We also reject defendant’s claim that monitoring of the unit for 39 days constituted an unreasonable search. The continuous monitoring of electronic signals from a tracking device, which provides information about the movement of a vehicle on public roads, is not a search. (Knotts, supra, 460 U.S. at pp. 281-282 [75 L.Ed.2d at pp. 61-63]); U.S. v. McIver (9th Cir. 1999) 186 F.3d 1119, 1123 [placement of a tracking device on the undercarriage of the defendant’s vehicle is not a search].) Monitoring such a device is a search only when it reveals information about otherwise hidden activities inside a residence. (United States v. Karo (1984) 468 U.S. 705, 715 [82 L.Ed.2d 530, 541-542].)

In Knotts, the United States Supreme Court held that the warrantless monitoring of an electronic tracking device inside a chemical container did not violate the Fourth Amendment when it revealed only information that could have been obtained through visual surveillance. The court explained that “[t]he governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways. We have commented more than once on the diminished expectation of privacy in an automobile: ‘One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.’ [Citations.] A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When Petschen traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.” (460 U.S. at pp. 281-282 [75 L.Ed.2d at p. 262].)

Likewise, because the GPS unit was attached to the truck and only provided information as to the truck’s movement on public roads, it was not a search. Nor do we find the fact the device was attached to the interior of the truck legally significant where as here defendant does not challenge the warrantless entry of the truck’s interior and there is no evidence that by placing the device inside the truck, law enforcement officials obtained information that was any different than they would have obtained had the device been placed on the truck’s exterior.

We also reject defendant’s argument that using the device to monitor him 24 hours a day was unreasonable. Although it is true the device was in operation 24 hours a day, it only provided information when activated by the truck’s movement and the information was limited to the truck’s location. The unit provided no information about defendant’s specific activities or conversations. Accordingly, because the nature and amount of the information was so limited, we reject defendant’s claim.

3. Ineffective Assistance of Counsel

Defendant contends that counsel’s failure to adequately preserve his Fourth Amendment claim denied him the effective assistance of counsel. We summarily reject this contention because he has raised it for the first time in his reply brief, thereby denying respondent the opportunity to address it. Having failed to show good cause, we will not consider it. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)

Additionally, defendant has failed to make even a bare bones showing that counsel was incompetent or that he was prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 689-690, 693 [80 L.Ed.2d 674, 694-695, 697].) Because we presume neither incompetence nor prejudice, defendant has the burden of establishing both of these elements. (Id. at pp. 689, 693 [at pp. 695, 697].) He has failed to do so, providing no factual analysis or citation to the record to support this contention. Suffice it to say, if the police had reasonable suspicion that defendant engaged in criminal conduct, his motion would have been properly denied under Knights. Because the record fails to establish that counsel had reason to believe otherwise or that the Knights standard could not be met, defendant cannot establish either prong. Accordingly, he has failed to establish he was denied the effective assistance of counsel.

II.

Self-Representation

Defendant contends the trial court committed reversible error because it denied his timely request for self-representation. Respondent contends the trial court did not abuse its discretion in denying defendant’s request because it was made shortly before trial and would have caused serious disruption in a complicated case. We agree with respondent.

A. Procedural History

Defendant was arraigned on the information on December 18, 2003. Trial was initially set for April 20, 2004. It was reset several times at defendant’s request and finally calendared for October 18 to be assigned a trial department. Trial was estimated to take 15 court days. The October 18 trial date was confirmed on October 7.

On Friday, October 15, defendant moved to continue the trial and to substitute counsel. The court denied both motions.

On October 18, the day trial was scheduled to begin, defendant made a request for self-representation. The prosecution objected and the court commented that the motion “appears to be a little late.” When the court asked why it had not been made earlier, defense counsel advised the court that defendant had attempted to make the motion the previous Friday and had been “considering a Faretta for some time.” Counsel acknowledged that defendant had not made the motion on October 7. Although the trial court found the motion was late, it assigned the case for trial to begin on October 27 and deferred the motion for self-representation to that date.

The trial court heard the Faretta motion on October 27 at which time defendant advised the court he was not prepared to go to trial and would need an additional two to four weeks to prepare. The prosecutor objected to the two requests on the grounds of timeliness, informing the court that defendant had failed to make his request at the trial confirming conference on October 7th, that the case involved 22 counts and over 130 witnesses who had been under subpoena for the last 10 days, and that some of the witnesses were over 70 years of age, entitling the case to priority status. The prosecutor further argued that delaying the trial for another month would run into the holiday season, making it impossible for the People to subpoena their witnesses when many of them had informed her of preplanned vacations during December. As a result, the trial would have to be continued even longer.

The court denied the motion, concluding that while defendant did not demonstrate a proclivity to substitute counsel, other factors weighed against his motion. The court found the quality of counsel’s representation was above average, defendant’s request was based on the same grounds as his Marsden motion, which had been heard and denied, the request was made on the day of trial and defendant was requesting a two to four week continuance, so granting the motion would cause disruption. The court found the last factor to be the most significant because the trial would take over a month and would have to be continued to January to avoid the difficulties of trying it in December.

B. Analysis

To invoke the unconditional constitutional right of self-representation, the defendant must make a timely and unequivocal assertion of the right prior to trial. (Faretta, supra, 422 U.S. at pp. 834-835 [45 L.Ed.2d at pp. 581-582]; People v. Clark (1992) 3 Cal.4th 41, 98; People v. Windham (1977) 19 Cal.3d 121, 127-128 (Windham).) If the request for self-representation is not made “within a reasonable time prior to the commencement of trial,” it is addressed to the sound discretion of the trial court. (People v. Bradford (1997) 15 Cal.4th 1229, 1365; Windham, supra, 19 Cal.3d at p. 127.)

“The ‘reasonable time’ requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice. ‘For example, a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addressed to the sound discretion of the trial court which should consider relevant factors such as whether or not defense counsel has himself indicated that he is not ready for trial and needs further time for preparation.’" (People v. Burton (1989) 48 Cal.3d 843, 852-853, quoting Windham, supra, 19 Cal.3d at p. 128, fn. 5.)

When exercising its discretion to grant or deny a Faretta request, the trial court is directed to consider such factors as “the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.” (Windham, supra, 19 Cal.3d at p. 128; People v. Clark, supra, 3 Cal.4th at pp. 98-99.) These factors serve to facilitate the efficient administration of justice. (People v. Burton, supra, 48 Cal.3d at p. 853.)

In People v. Ruiz (1983) 142 Cal.App.3d 780, 785, the court upheld the denial of a motion for self-representation made six days prior to trial. The motion was made immediately following the denial of a motion for substituted counsel and the two motions were based upon the same grounds. The Faretta motion was also conditioned upon the grant of a continuance, both counsel were ready to proceed to trial as scheduled, and there was a serious witness problem.

Applying these principles we find no abuse of discretion. Made on the eve of trial when both counsel were ready to proceed, defendant’s request was untimely and was based on the same grounds rejected by the court when it denied his Marsden motion. Moreover, defendant’s request included a request for a four-week continuance that by itself would have required a January trial date. However, the grant of any continuance would have violated the mandate of section 1048, subdivision (b), which requires that a case involving victims or witnesses over 70 years of age be tried within 30 days of arraignment unless good cause is found. The trial was already confirmed to begin almost 18 months after defendant was arraigned and defendant failed to establish good cause for a further continuance. The denial of a continuance under these circumstances was proper.

Defendant claims however, that he tried to make his motion on October 7th and again on October 14th when he was ignored by the court after it denied his Marsden motion. The record indicates that defendant made no effort to raise a Faretta motion on October 7. On October 14th, the record reflects that he attempted to speak to the court but was cut off because the court concluded it had ruled on all matters properly before it.^[9] So while the record is silent as to defendant’s intentions, it clearly reflects that he did not give the prosecution or the court any notice of his intent to make a Faretta motion that day.

In any event, defendant does not dispute the trial court’s premise that a delay in the trial until January would have been necessary if his request had been granted. Because that would have been a substantial and unjustified delay, we find no abuse of discretion.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

SIMS , J.

NICHOLSON , J.

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^[1] All further section references are to the Penal Code unless otherwise specified.

^[2] The jury returned not guilty verdicts on counts six and 22 for grand theft (§ 487) and receiving stolen property (§ 496) and was unable to reach verdicts on counts 20 and 21 for residential burglary (§ 459) and attempted residential burglary (§§ 459, 664), which were subsequently dismissed. Prior to trial, the trial court also dismissed count 16, which charged residential burglary.

^[3] Under the condition, defendant agreed to “[s]ubmit [his] person, place of residence, vehicle or area over which he . . . has control to search and seizure at any time, day or night, with or without a search warrant, and with or without probable cause, by the probation officer or any peace officer for the purpose of determining compliance with conditions of release or probation.”

^[4] Defendant did not challenge the warrantless entry of the truck’s cabin.

^[5] Sergeant Addoms testified that his department received 11 crime reports of a series of residential burglaries in Placer County in which entry was effected by shooting steel balls or marbles through a window immediately adjacent to the front door. In one of the burglaries, the victim advised the responding deputy that he had seen the suspect flee in a green or black Toyota truck with a license plate number of 6H08785.

^[6] The parties further stipulated “[t]hat the police in this case gathered a number of reports of various burglaries; that they had a modus operandi, but they did not have a viable suspect up to the point where they sent out alerts to other agencies. As a result . . . Sergeant Addoms got a phone call suggesting that [defendant] may somehow be involved. Further investigation . . . of [defendant’s] vehicle, his physical description and his criminal history led the sergeant in this case to conclude that [defendant] was somehow responsible for these burglaries.”

^[7] Defendant filed a supplemental letter brief raising this same issue, framing it as an abridgement of his Fourth Amendment rights under the totality of the circumstances.

^[8] In Reyes, supra, 19 Cal.4th 743 the California Supreme Court held that no particularized suspicion is needed to justify the search of a parolee subject to a warrantless search condition. All that is required is that the search be for a proper purpose, not be harassment, and not be arbitrary or capricious. (Id. at pp. 753-754.)

^[9] After the court denied defendant’s Marsden motion, defendant stated “I would like to address the Court again.” The court stated, “No, sir. Thank you. You are remanded to the custody of the Placer County Sheriff” whereupon counsel stated “What my client” whereupon the court said: “There’s nothing else before me today. I’m not prepared to listen to anymore comments. We’ve done the Motion to Continue, and the Marsden, and that’s all we’re going to hear today. Thank you.”