P. v. Lyman

Filed 7/20/07 P. v. Lyman CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis, Judge. Affirmed.

A jury convicted Rick Armand Lyman of carrying a concealed dirk or dagger. He appeals, contending the trial court erred in failing to suppress evidence as the fruit of an illegal search, and in failing to dismiss a prior strike conviction. We reject his contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2004, parole agents visited Lyman, a parolee, at his residence. They administered a drug test, which Lyman passed. The next day, Parole Agent Sean Torphy and another officer visited Lyman. After being greeted by Lyman, Agent Torphy handcuffed and searched him. He found two sharpened metal blades connected by a ring in Lyman's back pocket.

In March 2005, the San Diego District Attorney charged Lyman with unlawfully carrying a concealed dirk or dagger. A jury found Lyman guilty, and the court sentenced him to the middle term of two years, doubled because of the prior strike conviction, with two years added for two prior prison terms, for a total of six years.

DISCUSSION

1. The Reasonableness of the Parole Search

Lyman contends that the trial court erred in admitting into evidence the weapon found by Agent Torphy during his search. As a parolee, Lyman's reasonable expectation of privacy is extremely limited. Although the Fourth Amendment still applies to parole searches, its requirements are considerably loosened. (Samson v. California (2006) 126 S.Ct. 2193, 2198 & fn. 2.) No warrant is required to search a parolee, and there is no need for any particularized suspicion. (Id. at p. 2196.) Parole searches are presumptively reasonable unless they are arbitrary, capricious, or harassing. (People v. Reyes (1998) 19 Cal.4th 743, 752.)

Here, the trial court concluded that the search itself was reasonable either for the purpose of gathering information, or for the purpose of ensuring Lyman's compliance with the conditions of his parole. Although the court noted that the reason for Agent Torphy's visit to Lyman was "murky," it found no evidence of arbitrariness or of any vendetta against Lyman. As a reviewing court, we must defer to the court's factual findings if they are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) The court's holding that the evidence amounted to a showing of reasonability, however, is reviewed de novo. (Ibid.) This means that we must examine the record independently, with no deference to the findings of the trial court. Under that standard, we hold that the search in this case was reasonable.

As a threshold matter, Lyman correctly argues that the burden of proving the reasonableness of a search lies with the prosecution. He also argues that the court incorrectly shifted this burden to the defense. We disagree. Lyman's status as a parolee justified the warrantless search and required that Lyman present arguments as to why the justification was inadequate. "This specificity requirement does not place the burden of proof on defendants." (People v. Williams (1999) 20 Cal.4th 119, 130.)

Lyman argues that the search was illegal, and that the fruit of the search must therefore be suppressed, because it was arbitrary and harassing. Arbitrariness can mean that a search was conducted under unreasonable circumstances. For example, a search conducted at an unreasonable hour or prolonged for an unreasonable amount of time could be considered arbitrary. (People v. Clower (1993) 16 Cal.App.4th 1737, 1741.) The search of Lyman was not arbitrary in this sense. It was performed during the day for a reasonable amount of time, and the conduct of Agent Torphy in carrying out the search was not unreasonable. Arbitrariness may also refer to the motive of the officer who is conducting the search. If the motive is unrelated to legitimate law enforcement purposes, the search is arbitrary. (In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004.)

Lyman alleges that Agent Torphy had been pressing him for information about parolees at large, and that his refusal to provide this information provoked Agent Torphy to harass him. However, there is no evidence in the record that the search was motivated by a vendetta against Lyman, or for any other reason unrelated to legitimate law enforcement objectives. Furthermore, Agent Torphy had objectively valid reasons to visit Lyman and conduct a search.

Agent Torphy testified that Lyman's parole agents had reported suspicious behavior by Lyman, such as shaving his head and being unwilling to open certain doors in his residence, and that they had asked Agent Torphy to investigate because of his previous experience with skinheads. He denied that the visit was made for the purpose of obtaining information about parolees at large. However, the visit would have had a legitimate purpose in either case. Investigating possible violations and offenses by parolees is a legitimate law enforcement purpose. (Samson v. California, supra, 126 S.Ct. at p. 2200.) Seeking information about parolees at large is also a legitimate law enforcement purpose, since it is one of Agent Torphy's duties as a parole agent. Even if Agent Torphy had no reasonable basis to believe that Lyman had information about parolees at large, his search is still reasonable if it was motivated by this legitimate objective. (In re Anthony S., supra, 4 Cal.App.4th at p. 1004.) Since the evidence does not show any arbitrary, capricious, or harassing behavior by Agent Torphy, we hold that the search was reasonable.

2. Failure to Dismiss the Prior Strike Conviction

Trial courts have the authority to dismiss a prior strike conviction in the interest of justice. In deciding whether to dismiss a prior strike, the court must consider whether the defendant falls outside the spirit of the Three Strikes law, taking into account the circumstances of the present offense, any prior offenses, and the defendant's background and future prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.)A decision not to use this authority will only be reversed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) In reviewing for abuse of discretion, we must view the circumstances in the light most favorable to the trial court. The decision will only be reversed if, under these circumstances, no reasonable judge would have reached the same conclusion. (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)

Lyman argues that the court ignored factors that supported dismissal of his prior conviction. This is incorrect. The trial court noted several factors, such as Lyman's intelligence, the nature of his criminal record, and the circumstances of the present offense. It found, however, that these factors were outweighed by Lyman's long criminal history, and thus were not sufficient to merit dismissal of the prior conviction. Lyman has been incarcerated for most of the last seventeen years. Every time he has been released on parole, he has committed a violation and returned to prison. In addition, the court noted that Lyman has previously been convicted for possessing weapons. The decision not to dismiss the prior strike therefore had a reasonable basis, and we cannot say that it was an abuse of discretion.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

McDONALD, Acting P. J.

O'ROURKE, J.

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