P. v. Carson

Filed 9/19/07 P. v. Carson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Phillip Morris (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.), and Bryan Foster, Judge. Affirmed.

Andrew E. Rubin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett Beaumont, and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant and appellant Ronald Lloyd Carson guilty of misdemeanor receiving stolen property (Pen. Code, 496, subd. (a)) and being under the influence of a controlled substance. (Health & Saf. Code, 11550, subd. (a).) The trial court sentenced him to three years probation. On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence, and that the court erred in refusing to give a jury instruction saying that he was not guilty of receiving stolen property if he intended to give the stolen property to the police. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of August 21, 2005, Paul Jett (Jett) left his car unlocked in his driveway. The next morning, he found the glove compartment open, papers on the floorboard, and his wallet missing from the center console. His wallet contained his drivers license, his Social Security card, and credit cards, including a card in the name of his company, Pacific Refrigeration.

At approximately 7:45 a.m. on August 26, 2005, San Bernardino County Sheriff Detective Laura Marks went to defendants house to investigate a matter unrelated to the Jett theft. Defendant opened the door and appeared to be under the influence of a central nervous system stimulant. His eyes were dilated, he had muscle tension in his face, he was fidgeting and nervously looking around, and he kept pulling at his shirt. When Detective Marks told him she believed he was under the influence of a central nervous stimulant, he cursed at her, told her he was leaving, and began to yell at her. Detective Marks had him perform some tests to confirm her observations, placed him under arrest, and handcuffed him.

Defendant indicated his concern for his three-year-old child, who was in the house, so Detective Marks entered the house and found the child asleep in the bedroom. Detective Marks also entered the locked, attached garage, using a key that defendant had in his pocket. She scanned the room to make sure nobody was in it, for her safety and the safety of the child, and noticed a television monitor that had a view of the driveway. She also noticed a glass methamphetamine pipe on the ground and a credit card with the name Pacific Refrigeration in an open chest drawer, near the glass pipe.

Detective Marks subsequently found a cigarette carton containing a stack of credit cards, a drivers license, and a Social Security card, all belonging to Jett or Pacific Refrigeration. Detective Marks advised defendant of his Miranda^[1]rights and asked him about the cards. Defendant said that he had just been given the items the night before and that he intended to report the items to the police.

Defendants blood later tested positive for methamphetamine.

ANALYSIS

I. The Trial Court Properly Denied the Motion to Suppress

Defendant moved to suppress all of the items seized as a result of the search of defendants residence, including all items belonging to Jett. The court denied the motion. Defendant now argues that his conviction for receiving stolen property should be reversed because the warrantless search of the garage was unlawful. He specifically argues that the search was overbroad. We disagree and conclude that the trial court properly denied the suppression motion.

A. Standard of Review

In reviewing the denial of a motion to suppress evidence, we defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.] (People v. Glaser (1995) 11 Cal.4th 354, 362.)

B. Motion to Suppress

Detective Marks testified at the hearing on the motion to suppress. She said that she and another officer went to defendants house to conduct an investigation involving telephone calls made to his residence from a cell phone that had been stolen. Prior to making contact with defendant, the other officer informed Detective Marks that he had previously assisted deputies in chasing a felon into defendants residence. The felon was hiding in the attic of defendants house, and defendant was home, but was uncooperative with the police. The felon was ultimately arrested.

Detective Marks testified that when defendant came to the door, she noticed he was extremely agitated and exhibited signs of being under the influence of a central nervous system stimulant. After having defendant perform a few tests, Detective Marks concluded that he was under the influence and arrested him. Defendant said he was concerned about his daughter, who was asleep inside the house. Detective Marks entered the residence to check on the child, and for officer safety reasons. She checked the entire residence and went into the master bedroom, where she found the child asleep. Detective Marks noticed that the door leading to the garage was locked, which caught her attention, considering the history at the house. She was concerned since defendant was under the influence and could not take care of himself, much less his child. Detective Marks wanted to make sure that there was nobody else in the house, so that there was no safety issue. The door had a dead bolt lock on it which required a key to open. Detective Marks had searched defendant after arresting him and recovered a key from his person; that key fit the lock on the garage door. She entered the garage and noticed the television monitor, boxes, and a lot of miscellaneous items cluttered on the ground. She testified that one had to walk through the entire garage to know if anyone was there, in order to check behind the boxes and other items there. She noticed a small dresser on the ground. The dresser drawer was open, and a credit card with the name Pacific Refrigeration was in plain view. Detective Marks found a methamphetamine pipe sitting next to the dresser. She then advised defendant of his Miranda rights and asked him for consent to search the home. Defendant asked her to wait for his wife to come home. Within approximately 20 minutes, defendants wife came home and signed a consent to search form, permitting a search of the entire residence, including the garage. Subsequently, Detective Marks searched the garage and found the stack of credit cards, Social Security card, and identification belonging to Jett and Pacific Refrigeration.

Detective Marks transported defendant to the police station, where he told her that the property was not his, that he had just received it, and that he was going to call the police since he knew it did not belong to him.

Upon consideration of the evidence, the court concluded that the officer was justified in searching the house and garage for officer safety purposes, and for the safety of the child. The court specifically found that Detective Marks had a right to step into the garage and search it, since the garage was cluttered, and a person could have been hiding behind the boxes or large items. Thus, the court denied the motion to suppress the items found.

C. The Search Was Justified

A warrantless search by the police is invalid unless it falls within one of the exceptions to the warrant requirement. (People v. Celis (2004) 33 Cal.4th 667, 676 (Celis).) One recognized exigent circumstance that will support the warrantless entry of a home is the risk of danger to police or others on the scene. (Ibid.) This exception provides the justification for a protective sweep of a residence under the high courts decision in [Maryland v. Buie (1990) 494 U.S. 325 (Buie)]. (Id. at pp. 676-677.) A protective sweep is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. (Buie, supra, 494 U.S. at p. 327.) In each case the claim of exigent circumstances must be evaluated on its particular facts. Where there is reasonable cause to believe additional suspects or potential victims are in a residence, a warrantless entry is permissible. [Citations.] (People v. Keener (1983) 148 Cal.App.3d 73, 77.)

Here, Detective Marks had just arrested defendant, who was under the influence of methamphetamine. Defendant told Detective Marks that his three-year-old child was inside the house. In addition, Detective Marks had information that defendants residence had previously been a place where the police chased a fleeing felon, that defendant was home at that time and was uncooperative with the police, and that the felon was found hiding in the attic. She also knew that telephone calls had been made to defendants residence from a stolen cell phone. Under these circumstances, Detective Marks had the right and the duty to make sure that the child was in the house and taken care of. She was justified in looking in the garage, as part of the protective sweep. Detective Marks was justified in walking through the garage, since it was cluttered and a person could have been hiding behind the boxes or large items. Because she was lawfully in the garage, the methamphetamine pipe and Pacific Refrigeration credit card, which was in an open dresser drawer, were in plain view, and she lawfully seized them.

Defendant argues that [t]he fact that there was a three year old in the house is not the kind of emergency that would allow a search into nooks and crannies and closed containers and further claims that the emergency aid exception to the warrant requirement did not apply here. As discussed above, the risk of danger to police or others on the scene is a recognized exigent circumstance that will support the warrantless entry of a home. (Celis, supra, 33 Cal.4th at p. 676.) Detective Marks was properly concerned for her own safety, as well as the safety of the child, and accordingly searched the premises. Moreover, there is no indication in the record that Detective Marks searched closed containers (at least not before receiving consent from defendants wife). Furthermore, to the extent that the initial search of the garage was invalid, all of the items would have inevitably been discovered since defendants wife gave Detective Marks written consent to search the entire residence, including the garage.

In sum, the court properly denied the motion to suppress.

II. The Trial Court Properly Refused a Jury Instruction on Innocent Intent

Defendant contends that his conviction for receiving stolen property should be reversed because the trial court erred in refusing a jury instruction requested by the defense regarding innocent intent. We disagree.

A. Background

During the discussion of jury instructions after the close of the prosecutions evidence, defendant requested that the jury be instructed with Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 1751, which provides, in relevant part: The defendant is not guilty of receiving [stolen] property if [he] intended to (return the property to its owner/[or] deliver the property to law enforcement) when [he] (bought/received/concealed/withheld) the property. [] If you have a reasonable doubt about whether the defendant intended to (return the property to its owner/ [or] deliver the property to law enforcement) when [he] (bought/received/concealed/withheld) the property, you must find [him] not guilty of receiving [stolen] property. The court inquired as to what evidence had been introduced at that point regarding intent. Defendant referred to Detective Markss testimony at trial that defendant told her he received the credit cards the previous night, and he fully intended to report the items to the police. Both the court and the prosecutor pointed out that the detectives testimony was not offered for the truth of the matter, but to show consciousness of guilt. The court found that there was no evidence at that time to support the requested instruction, and that, unless defendant himself testified, it would not give the instruction. Defendant did not testify.

B. There Was No Evidence to Support the Instruction

A trial court has no duty to instruct the jury on a defense--even at the defendants request--unless the defense is supported by substantial evidence. [Citation.] (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.) Here, there was no evidence presented that when defendant received the stolen property, he intended to return it to the owner or to law enforcement. The testimony from Detective Marks was offered to show that defendant lied when he claimed he was just given the property and intended to report it to the police. Detective Marks testified that defendant stated that he had full intentions of reporting the stolen property to the police, and also that she told him he had had ample opportunity to tell her about the property while she was in his home, but did not do so. The prosecutor confirmed with Detective Marks that defendant never said anything about the stolen property until she asked him about it. Thus, the testimony was presented to show defendants consciousness of guilt, not to show that he actually intended to report the property to the police. Because there was no evidence presented regarding defendants intent, the court properly declined to give the requested instruction.

Defendant argues that the portion of Detective Markss testimony at issue came before the jury on direct examination, but the prosecutor did not ask to have it admitted for a limited purpose (i.e., to show consciousness of guilt); therefore, the evidence was admitted for all purposes (i.e., for the truth of the matter). Defendant is essentially arguing that Detective Markss testimony was offered as a hearsay statement, to show that he actually intended to return the property to the police. However, the prosecutor offered the evidence to show that defendant knew that he should not have had the stolen property. The prosecutor could not have offered Detective Markss testimony about what defendant said as a hearsay statement because it was not an admission. Moreover, the prosecutor would have no reason to offer the testimony for the truth of the matter asserted.

Assuming arguendo that the court erred in refusing the defense instruction, any error was harmless. The evidence showed that defendant had a stack of credit cards, a drivers license, and a Social Security card, all belonging to Jett or Pacific Refrigeration. Defendant knew that he had these items and said he was going to report them to the police. Yet, he kept the items in a locked garage with a television monitor showing the front driveway, and he failed to tell the police about them until he was asked about them. Under these circumstances, it is not reasonably probable that had the jury been given defendants proposed instruction, it would have come to any different conclusion. (See People v. Earp (1999) 20 Cal.4th 826, 887.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ HOLLENHORST

J.

We concur:

/s/ RAMIREZ

P.J.

/s/ GAUT

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^[1]Miranda v. Arizona (1966) 384 U.S. 436.