Filed 5/25/18 P. v. Whittaker CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

TREVON JAMAL WHITTAKER,

Defendant and Appellant.
C084173

(Super. Ct. No. 16FE020914)



Convicted by jury of unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)) and receiving stolen property worth over $950 (Pen. Code, § 496d, subd. (a)), defendant Trevon Jamal Whittaker contends: (1) The trial court erred by denying his motion to suppress evidence, and (2) no substantial evidence supported the jury’s finding that the stolen property was worth over $950. We affirm.
I. BACKGROUND
A. Evidence Before the Trial Court on the Motion to Suppress
Sacramento Police Officer David Bell testified that on October 31, 2016, he was dispatched to a Child Protective Services (CPS) office on Folsom Boulevard in Sacramento County because of “a child custody issue”: Defendant had called 911 from there to complain that his one-year-old son was being abused. He allegedly had a bad diaper rash, had not been bathed in several days, and smelled bad. En route to the office, Officer Bell conducted a records check on defendant’s name and found that he was on probation out of Alameda County for a felony weapons violation, had a domestic violence restraining order against him, and did not have a valid driver’s license.
As Officer Bell arrived at the building’s parking lot, he received a second 911 call from a CPS employee, stating that “there was a father on scene that was acting erratic and threatening to take his child.” When Officer Bell got out of the car, Derrick Swafford, a CPS caseworker, contacted him and told him that the child was in CPS custody and father was there for his first supervised visit. Swafford had to leave the room because father was getting more agitated and saying he would not let CPS have his child. CPS was aware of the infant’s diaper rash.
Entering the room where defendant and his son were, Officer Bell saw defendant clutching the child with both arms, appearing “very excited.” The infant, who was wearing a GI Joe Halloween costume, appeared clean and healthy.
Officer Bell approached defendant and asked in a matter-of-fact manner what was going on with his son. Defendant got “very agitated” and replied: “ ‘What do you mean what’s up with my son? Can’t you tell?” When Officer Bell asked to see the child’s diaper rash, defendant accused him of holding his hand on his gun and wanting to shoot defendant and his son; in fact, the officer’s right thumb was tucked in behind his belt buckle, not on his gun, which was placed on his right side “towards the back.”
Thinking defendant might be under the influence of a drug or going through a psychotic episode, Officer Bell tried to deescalate the situation by lowering his voice. Defendant asked him to get a different officer on the scene, but Officer Bell said that was not going to happen; he was there to figure out the situation.
Defendant produced a phone, appeared to start the video recorder, and set up the phone in the opposite window ledge. Officer Bell asked him three or four times to show him the child’s injuries, saying he would back away, and once walking back to the doorway and leaning against it. He initially got no response.
As part of his effort to get defendant to relax, Officer Bell asked him how he had gotten to the location. Defendant started to say something, then stopped and said a friend had dropped him off.
Officer Bell surreptitiously told a CPS employee on the premises to be prepared to take control of the child if defendant put him down. The officer felt defendant was becoming more erratic and the child was at risk of harm; because defendant was on probation, the officer intended to detain him in handcuffs.
Defendant put the child down on a couch and pulled off the child’s clothing. Officer Bell walked over to look at the diaper rash, which was two inches by two inches across and appeared almost healed. He saw no red marks, blood, bruises, or signs of infection.
Officer Bell then performed an arm-bar takedown on defendant, which took them out of the room. After a struggle on the ground that lasted about a minute, the officer handcuffed defendant. Defendant was screaming for help, demanding that the CPS employees call 911 and claiming the officer was going to shoot him.
Officer Bell escorted defendant outside to the officer’s patrol car and placed defendant inside. Two other officers who had just arrived stood by outside the car while Officer Bell went back inside to get more information from the CPS employee and to pick up defendant’s sweatshirt and phone. Officer Bell spent five to 10 minutes inside before going back out.
Officer Bell’s records check on defendant had disclosed that he was on searchable probation until December 2019. After Officer Bell’s partner, Officer Lochridge, arrived on the scene (one to two minutes after Officer Bell returned outside), Officer Bell had defendant get out of the patrol car and performed a probation search on him. Officer Bell decided to do so not only because defendant was on probation, but because the officer suspected defendant’s erratic behavior was caused by a central nervous system stimulant and he might have narcotics on his person.
The search of defendant’s person disclosed a stand-alone remote-entry key to a Hyundai in his right front pocket. It did not disclose weapons or contraband.
Once the search of defendant’s person was completed, the officers placed defendant back in the patrol car, and Officer Bell began looking for a car that would match the key in order to perform a probation search on the car. Seeing no Hyundai in the parking lots adjacent to the CPS building, he walked further. By pushing the lock button repeatedly, he found a car that turned on its lights and sounded its horn in a parking lot about 100 yards from his starting point. He was able to open its door with the manual key that unfolded from the key fob.
The car had no license plates, but only paper plates. Officer Bell could not read the vehicle identification number (VIN) through the windshield because it was covered by two receipts. After opening the door and removing the receipts, the officer requested a records check on the VIN. It was linked to a vehicle reported stolen out of Fairfield on April 11, 2016.
It took Officer Bell about 10 minutes to search the car. He found four credit cards in defendant’s name.
Returning to his patrol car, Officer Bell placed defendant under arrest for being in possession of a stolen vehicle. The officer based that conclusion on the fact that defendant had made inconsistent statements about how he got there, he was in possession of the key that fit the car, and he appeared to be concealing the license plates and the VIN. By Officer Bell’s estimate, defendant had been in the patrol car for about 25 minutes at that point.
A video of defendant inside the patrol car was played at defendant’s request.
B. Argument
Defense counsel argued that defendant was illegally detained because there was no criminal activity afoot. The officer “had a hunch” and was “annoyed” that he had to come out to investigate a diaper rash, but that did not justify detaining defendant, who was genuinely worried about his son (and not “erratic”).
But even if the initial detention was legal, counsel argued, it was unduly prolonged. The alleged purpose of the detention was to perform a welfare check and make sure the scene was safe. That purpose was satisfied when defendant was taken out of the building and the child was taken into CPS custody.
Furthermore, he argued that even if a probation search was lawful, “simply because he is on searchable probation does not mean that all of his rights to privacy are thrown out the door. I mean there are a number of cases saying that even though a person is on searchable probation, while it is diminished they still have a right to privacy.” When the officer searched defendant’s person and found no contraband, the detention should have ended there. The fact that a car key was found on defendant did not mean defendant had a car there; that was only a “hunch” on Officer Bell’s part, which did not justify continuing the detention.
C. Ruling
The trial court denied the motion to suppress for the following reasons:
“The Court finds based on the officer’s testimony, which the Court finds to be credible, the officer arrived at the scene at the request of the defendant certainly, he finds the defendant to be agitated and erratic both by his personal observations and the report of the C.P.S. worker. At that point the officer suspects that the defendant is, as he testified, under the influence of a C.N.S. drug and that his behavior is erratic.
“Certainly the Court listened to the video after he was detained. I find that the officer’s testimony is persuasive on that point even though [defendant] did not appear to be erratic in the back of the squad car. In the back of the squad car he is detained and the situation is controlled. The officer testified that the first thing the defendant said to him is, ‘You want to shoot me.’ That sounds erratic. That substantiates the officer’s observations in the Court’s mind.
“Based on the fact the defendant was erratic and not acting rationally, [the officer] had fear for the child, he removed the defendant from the area and detained him. And I think he had a legal reason to detain him.
“He knew that he was on searchable probation at that time when he conducted the cursory search and then later the probation search. He found a key. He looked for contraband, he thought the defendant was under the influence. I think it is reasonable for him to conduct a probation search of the car based on that.
“You are absolutely correct that the officer cannot detain him any longer than reasonably necessary. It did take him an amount to [sic] time to find the car but not an unusual amount of time based on the evidence that the Court has heard.
“Once the officer found the car and entered the car, because he didn’t have a license plate to run he determined the car was stolen and made an arrest subsequent to that.
“ . . . So I find that the initial detention was legal based on a reasonable suspicion criminal activity was afoot and that the defendant was involved in that criminal activity. The criminal activity that was afoot was his being under the influence of a narcotic[] substance. So the motion is denied.”
D. Trial Evidence
According to the used car manager of Momentum Auto Group in Fairfield, the vehicle driven by defendant, a 2015 Hyundai Santa Fe, was one of three stolen from Momentum’s lot on April 11, 2016, by a group of thieves who broke into the box where keys to the vehicles were stored. A surveillance video of the incident was not clear enough to reveal the thieves’ identities. The incident was promptly reported to the police.
The manager was not asked about the vehicle’s value.
Defendant testified that when he found out he needed to get to Sacramento to visit with his son, he obtained the vehicle in Oakland, where he lived, as a “dope-feen [sic] rental” (a short-term loan of a vehicle in return for money to buy drugs) from a person he called an “uncle” (though they were not blood relatives) or an “OG.” He did not know it was stolen, and the fact that it was a brand new SUV put his mind at ease. He gave evasive answers to the police when asked about the car key on his person because he was driving on a suspended license and he did not want the vehicle to be towed, stranding him in Sacramento.
E. Closing Arguments
As to the value of the stolen vehicle, the prosecutor argued: “I don’t believe Mr. Parker [(the Momentum manager)] specifically testified to a value of this vehicle. However, the law states that you, as members of the jury, you must decide what the facts are. And you must decide what the value was, and you would do so basing it on the evidence that was presented to you in this trial. [¶] So what was the evidence that was presented to you in this trial? We know it’s a Hyundai Santa Fe, which the defendant confirmed was [an] SUV. We know it was a 2015 model, so it was nearly brand new, and that it was stolen right off of a dealership lot in Fairfield. [¶] Under the law, you are allowed to use your common sense and experience to then extrapolate on this evidence. And you will obviously come to the conclusion that if we’re talking about a nearly brand new SUV that was clearly stolen for its value, not for its lack of value, and you can easily come to the conclusion beyond a reasonable doubt that of course it’s worth more than $950.”
Defense counsel argued that defendant did not know the SUV was stolen. He made no argument about its value.
II. DISCUSSION
A. Motion to Suppress
Defendant contends his detention was extended unlawfully beyond the time necessary to determine he was not under the influence and he had nothing illegal on his person, and his searchable probation status was not reasonable grounds to prolong the search in order to look for and search a vehicle. We are not persuaded.
In reviewing a ruling denying a motion to suppress evidence, we accept the trial court’s factual findings if supported by substantial evidence. (People v. Woods (1999) 21 Cal.4th 668, 673 (Woods); People v. Watkins (2009) 170 Cal.App.4th 1403, 1408.) However, we exercise our independent judgment on whether the search or seizure was reasonable under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924.)
Here, as the trial court found, the officer had two separate grounds on which to conduct an investigative detention, including a warrantless search. First, defendant appeared to the officer to be possibly under the influence of an illegal stimulant, based on his erratic and agitated conduct in the CPS office. That fact gave the officer objectively reasonable grounds for suspicion that defendant was involved in criminal activity. Contrary to defendant’s assertion, the fact that he calmed down once detained in the patrol car did not remove the suspicion to which his earlier conduct gave rise. (Cf. People v. Hernandez (2008) 45 Cal.4th 295, 299; In re Tony C. (1978) 21 Cal.3d 888, 892-893.) And once defendant was found in possession of a car key despite his claim that a friend had dropped him off, his evasive response, suggesting consciousness of guilt with respect to the key, gave the officer a further basis for suspicion of unlawful activity and authorized the prolongation of the detention to search for the car that the key might belong to. The fact that nothing illegal had been found on defendant at that point was immaterial because officers do not need proof of criminal activity for an investigative detention, but only reasonable suspicion.
Second, the officer knew even before going into the CPS office that defendant was on searchable probation. One exception to the Fourth Amendment warrant requirement is probation, which includes a search term. (People v. Bravo (1987) 43 Cal.3d 600, 608; People v. Baker (2008) 164 Cal.App.4th 1152, 1158.) To perform a search of a probationer who has a search condition does not require particularized suspicion of criminal activity, because the probationer has waived his Fourth Amendment rights to avoid serving a prison term. (Woods, supra, 21 Cal.4th at pp. 674-675; People v. Reyes (1998) 19 Cal.4th 743, 752; Bravo, supra, at pp. 610-611.)
A probation search may not exceed the terms of the search condition relied upon, and may not be undertaken in a harassing or unreasonable manner. (Woods, supra, 21 Cal.4th at p. 682.) “A standard probation search condition . . . requires the probationer to submit to warrantless, suspicionless searches of his ‘person, vehicle, residence, property, [and] personal effects.’ ” (People v. Cervantes (2017) 11 Cal.App.5th 860, 869, fn. 8; see People v. Appleton (2016) 245 Cal.App.4th 717, 724.) Although probation search terms may be worded more restrictively (see, e.g., People v. Howard (1984) 162 Cal.App.3d 8, 13 [search restricted to narcotics or dangerous drugs]), no evidence showed that defendant’s search terms were restricted in any way. Thus, there is no evidence that the search exceeded the scope of his probation terms.
Relying on People v. Douglas (2015) 240 Cal.App.4th 855, 863, which notes that “[a] search condition is not mandated by statute for every probationer, and probation search clauses are not worded uniformly,” defendant asserts that there is no evidence his probation search terms included his vehicle. However, the reason there is no evidence as to defendant’s specific search terms is that defendant did not assert that the search exceeded the scope of his search terms. Since the standard probation search terms would include vehicles (People v. Cervantes, supra, 11 Cal.App.5th 869, fn. 8; People v. Appleton, supra, 245 Cal.App.4th at p. 724), the burden was on defendant to raise the specific claim that his did not and to put the prosecution to its proof. (People v. Williams (1999) 20 Cal.4th 119, 128-130.) Contrary to defendant’s assertion, counsel’s vague allusions to defendant’s “right to privacy” did not alert the People to the contention that his probation search terms did not encompass his vehicle. Therefore this contention is forfeited.
Defendant has shown no error in the denial of his motion to suppress evidence.
B. Value of the Stolen Vehicle
Defendant contends there is no substantial evidence the value of the stolen SUV exceeded $950. Noting that this contention is mainly of academic interest because the sentence was suspended pursuant to Penal Code section 654, we conclude the contention lacks merit.
As noted above, the People did not put on direct evidence of the SUV’s value and instead asked the jury to use its commonsense on this point. However, defendant did not dispute the People’s argument, choosing instead to rest everything on the claim that defendant did not know the vehicle was stolen.
Relying on People v. Davis (2013) 57 Cal.4th 353, 360 (Davis), defendant asserts that the People could not make up for the failure to present evidence on this point by appealing to the jury’s “common sense.” Assuming that defendant may raise this point for the first time on appeal, Davis does not support his position.
In Davis, our Supreme Court court held that a reasonable inference may be drawn based on “common sense” or “common knowledge” only if the inference is based on evidence, rather than mere speculation. (Davis, supra, 57 Cal.4th at p. 360.) The court also set out a test for whether a fact is “one of common knowledge”: “First, ‘is the fact one of common, everyday knowledge in that jurisdiction, which everyone of average intelligence and knowledge of things about him can be presumed to know; and [second,] is it certain and indisputable?’ [Citation.]” (Ibid.)
Here, the jury had evidence that the stolen vehicle was a practically new SUV with no known damage or defects. We think it is a matter of “common, everyday knowledge” (Davis, supra, 57 Cal.4th at p. 360) that such a vehicle would be worth far more than $950, such that a commonsense inference to that effect may reasonably be drawn. We also think this inference would be “certain and indisputable” (ibid.) in the sense that it is not reasonably open to dispute. While it would have been preferable for the prosecutor to elicit direct evidence of the vehicle’s value from the dealership manager, his failure to do so was harmless.










III. DISPOSITION
The judgment is affirmed.


/S/

RENNER, J.



We concur:


/S/

BUTZ, Acting P. J.


/S/

MAURO, J.