P. v. Pickett
Filed 11/19/13 P. v. Pickett CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
RICKY ANDRE PICKETT,
Defendant and Appellant.
B241373
(Los Angeles
County
Super. Ct.
No. BA389843)
APPEAL from
an order and a judgment of the Superior
Court of
County, Gail Ruderman Feuer, Judge. Affirmed.
Donna L.
Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne and Seth P.
McCutcheon, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Ricky Andre Pickett appeals the judgment
resulting from his conviction for carrying
a concealed dirk or dagger in violation of former Penal Code section 12020,
subdivision (a)(4). He contends the
trial court erred in finding he did not have standing to challenge the warrantless
search of a garage which ultimately led to the discovery of his concealed
knife. He also contends section 12020
violates the Second Amendment to the United
States Constitution. We affirm the order
denying the suppression motion and the judgment of conviction.
FACTS
On October 20, 2011, Los Angeles Police
Officer Richard Fox, his partner Officer David Acee, and other officers
conducted a trespass investigation at a property on Flower
Street. The
property was surrounded by a fence and had either a “No Trespassing†or “Closed
to the Public†sign on it. The residence
on the property was vacant, with boarded up windows. The officers did not have a warrant.
The officers went to the garages at
the rear of the property. Through an
open door in one of the garages at the rear of the property, Officer Fox saw
four individuals sitting next to objects which appeared to be cocaine
pipes. All four of these individuals
were detained. One of these individuals
was Andre Boatwright, who acted as a quasi-caretaker of the property. Appellant and La-Toya Augustine were found in
the adjacent connected garage, and were detained. A pat-down search of appellant revealed a
knife in an open and locked position in his pocket.
DISCUSSION
1. Motion to suppress evidence
Appellant
contends he was an invited guest on the searched property and so the trial
court erred in ruling he lacked standing to challenge the warrantless search of
the garage. He further contends his
motion should have been granted on the merits, as there was no legitimate
exception to the warrant requirement. We
see no error in the trial court’s ruling concerning standing. Because appellant lacked standing, we do not
address whether a warrant was required.
a. Standard of review
“In ruling on a motion to suppress,
the trial court judges the credibility of the witnesses, resolves any conflicts
in the testimony, weighs the evidence, and draws factual inferences.†(People
v. Williams (2006) 145 Cal.App.4th 756, 761.) “[O]n appeal from the denial of a suppression
motion, we review the evidence in a light favorable to the trial court’s
ruling, adopt those express and implied findings of fact that are supported by
substantial evidence, and independently determine whether those findings
support the court’s legal conclusion . .
. .†(People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1197-1198.)
b. Standing requires a reasonable expectation of
privacy in the place searched
“[I]n order to claim the protection
of the Fourth Amendment, a defendant must demonstrate that he personally has an
expectation of privacy in the place searched, and that his expectation is
reasonable; i.e., one that has ‘a source outside of the Fourth Amendment,
either by reference to concepts of real or personal property law or to
understandings that are recognized and permitted by society.’†(Minnesota
v. Carter (1998) 525 U.S. 83, 88 quoting Rakas v. Illinois (1978) 439 U.S. 128, 134.)
“There is no set formula for
determining whether a person has a reasonable expectation of privacy in the
place searched, but the totality of the circumstances are considered.†(In re
Rudy F. (2004) 117 Cal.App.4th 1124, 1132, citation omitted.)
reasonable or legitimate expectation of privacy in a place if he has no legal
right to be in that place. “[T]he United
States Supreme Court [has] held that ‘a “legitimate†expectation of privacy by
definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin
during the off season may have a thoroughly justified subjective expectation of
privacy, but it is not one which the law recognizes as “legitimate.â€â€™
[Citation.] The same principle applies
to auto thieves [citations]; and trespassers. [Citation.]†(People
v. Satz (1998) 61 Cal.App.4th 322, 325-326.)
“A defendant has the burden at
trial of establishing a legitimate expectation of privacy in the place searched
or the thing seized. [Citations.]†(
972.)
c. The court did not err in finding appellant
lacked standing.
The trial
court found appellant was not an invited guest on the property. We defer to the court’s finding, which is
supported by substantial evidence.
It was
undisputed appellant was not the owner of the property, nor did he pay rent to
Parvish Bananan, the owner of the property.
Officers Fox and Acee testified that, according to Bananan, no one had
been given permission to be on the property, with the possible exception of
Boatwright, who might have been authorized to “watch over†the property.
Appellant
testified he did have permission to be on the property. He testified he heard Bananan give Boatwright
and Augustine permission to be on the property, and he in turn received
permission from Boatwright and Augustine to be on the property. The trial court found appellant’s testimony
not credible.
It was the trial court’s job to
assess credibility and resolve the conflicts in the evidence. The trial court found appellant’s testimony
not credible. We defer to the court’s
finding. Appellant is a convicted felon
and there were some inconsistencies in his testimony. The condition of the property itself cast
doubt on appellant’s claim that the owner invited people to enter the property.
Absent appellant’s testimony, there
was no evidence he was legally on the property. Since appellant was not an
invited guest on the property, the trial court correctly ruled appellant had no
standing to challenge the search of the property.
Appellant
relies on three federal cases involving searches of tents to argue he has
standing even if he was in the garage illegally. (U.S.
v. Sandoval (9th Cir. 2000) 200 F.3d 659, 661; U.S. v. Gooch (9th Cir. 1993) 6 F.3d 673; La Duke v. Nelson (9th Cir. 1985) 762 F.2d 1318.) This reliance is misplaced. In Gooch
and La Duke, there is nothing to
indicate the tents were illegally placed.
In Sandoval it was uncertain
whether the defendant needed permission to camp on public lands. In any event, “camping on public land, even
without permission, is far different from squatting in a private
residence. A private residence is easily
identifiable and clearly off-limits, whereas public land is often unmarked and
may appear open to camping.†(
v. Bishop Estate (9th Cir.1994) 25
F.3d 784, 787-788 [squatter in residential home did not have objectively
reasonable expectation of privacy], superseded by statute on other grounds as
stated in Margolis v. Ryan (9th Cir.
1998) 140 F.3d 850, 854-855.)
Appellant’s
reliance on People v. Roman (1991)
227 Cal.App.3d 674 is also misplaced.
That case simply holds that absent abandonment of or eviction from a
rented garage, the tenants’ failure to pay the full amount of rent for the
rental period did not give the landlord authority to allow police to search the
garage. (Id. at p. 677.) Appellant did not enter the property with the
owner’s permission initially and did not pay any rent, so Roman does not assist him.
Since appellant was not
legitimately in the garage, he had no reasonable expectation of privacy, and no
standing to challenge the police entry into the garage. Appellant does have standing to challenge the
pat-down search of his person, but he does not make any independent argument
that the pat-down search was unreasonable.
2. Constitutionality of former section 12020
Appellant was convicted under
former section 12020, subdivision (a)(4), which barred a person from carrying
“concealed upon his or her person any dirk or dagger.†Appellant contends his conviction must be
reversed because this statute was unconstitutional on its face under the Second
Amendment to the United States Constitution.
Specifically, he contends interpreting former section 12020 to prohibit
possession of a concealed switchblade knife, pocket knife, steak knife or
butter knife in one’s home makes the statute constitutionally overbroad.
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Respondent contends appellant has
forfeited this claim by failing to raise it in the trial court. Appellant contends if any forfeiture resulted
from his counsel’s inaction, he received ineffective assistance of counsel.
a. Appellant’s claim is forfeited
Appellant forfeited this argument
by failing to raise it below. A criminal
defendant who fails to assert the violation of a right below forfeits his or
her right to raise that claim on appeal.
(People v. Yarbrough (2008)
169 Cal.App.4th 303, 310.) Appellant
offers no reason for his failure to raise this issue below apart from
ineffective assistance of counsel. The
relevant United States Supreme Court decisions regarding the right to bear arms
were both decided prior to the charges being filed against appellant. (District
of Columbia v. Heller (2008) 554 U.S. 570 [128 S.Ct. 2783, 171 L.Ed.2d 637](
3020, 177 L.Ed.2d 894].)
b. Appellant did not receive ineffective
assistance of counsel
In order to establish a claim of
ineffective assistance of counsel, appellant must show his counsel’s
performance fell below an objective standard of reasonableness, and that, but
for counsel’s error, a different result would have been reasonably
probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694;
216-218.) “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.†(Strickland
v. Washington, supra, 466 U.S. at
p. 694.)
“When a claim of ineffective
assistance is made on direct appeal, and the record does not show the reason
for the counsel’s challenged actions or omissions, the conviction must be
affirmed unless there could be no satisfactory explanation.†(People
v. Anderson (2001) 25 Cal.4th 543, 569.)
Here, there is nothing to show
appellant’s counsel was asked for an explanation. Appellant contends there could be no
satisfactory reason for his counsel’s failure to raise the Second Amendment
claim. As we discuss below, there is no
merit to appellant’s claim and thus no reasonable probability appellant would
have received a more favorable outcome if his counsel had raised this issue
below. Thus, appellant’s claim of
ineffective assistance fails.
c. Former section 12020 was not unconstitutional
on its face.
Statutes are presumed to be
constitutional. (United States v. Morrison (2000) 529 U.S. 598, 608.) A facial challenge to the constitutional
validity of a statute considers only the text of the statute itself, not its
application to the particular circumstances of an individual. (Sturgeon
v. Bratton (2009) 174 Cal.App.4th 1407, 1418.) To prevail on a facial challenge to the
constitutionality of a statute, a litigant must show that no set of
circumstances exists under which the statute would be valid. (United
States v. Benevento (D. Nev.2009) 633 F.Supp.2d 1170, 1193.)
When evaluating the
constitutionality of a statute, the level of scrutiny applied depends on the
nature of the right affected by the statute and the manner in which the right
is impacted. (District of Columbia v. Heller, supra, 554 U.S. at p. 628.) Where, as here, the statute regulates but
does not completely ban the possession of a knife, it is analyzed under the
intermediate scrutiny standard. (
1364, 1374-1375 [applying intermediate scrutiny standard to claim that former
section 12020 violates the Second Amendment].)
“Under the intermediate scrutiny test, the statute must serve an
important governmental interest and there should be a reasonable fit between
the regulation and the governmental objective
[Citation.] The regulation need
not be the least restrictive means of serving the governmental interest, but it
should be narrowly tailored to serve the interest, . . . and should leave open
ample alternative means of exercising the protected right.†(Ibid.)
The Second Amendment provides: “A well regulated Militia, being necessary to
the security of a free State, the right of the people to keep and bear Arms,
shall not be infringed.†(
individual’s right to bear arms, and specifically to possess and carry weapons
in case of confrontation. (
The Second Amendment is violated by
a statute which absolutely prohibits holding and using handguns for
self-defense in the home and also prohibits rendering any lawful firearm in the
home operable for the purpose of immediate self-defense. (District
of Columbia v. Heller, supra, 554
U.S. at p. 635; People v. Flores,
entire class of “arms.†(
634; People v. Flores,
573-574.) However, there are limits to
the right to keep and carry arms. The
majority of the 19th-century courts held prohibitions on carrying concealed
weapons lawful under the Second Amendment.
(District of Columbia v. Heller,
supra, 554 U.S. at pp. 626-627.)
Based on Heller’s express approval of statutory proscriptions against
carrying concealed weapons, appellate courts have found statutes restricting
the carrying of concealed firearms do not violate the Second Amendment. (People
v. Ellison (2011) 196 Cal.App.4th
1342, 1348-1351; People v. Flores,
311-314.) The Sixth District Court of
Appeal has held former section 12020 did not violate the Second Amendment. (People
v. Mitchell, supra, 209 Cal.App.4th at p. 1375.) We reach the same conclusion.
Unlike the absolute prohibition of
handguns found unconstitutional in Heller,
former section 12020 did not absolutely ban dirks or daggers. Former subdivision (a)(7) allowed dirks or
daggers to be openly carried on the waist in a sheath, and former subdivision
(a)(4) allowed the concealed carrying of non-locking folding knives, a folding
knife that was not a switchblade, or a pocketknife so long as the blade of the
knife was not exposed and locked into an open position. Thus, former section 12020 provided a reasonable
means for carrying a knife for self-defense.
Heller
was also concerned with a prohibition of arms in the home. But, former section 12020 did not ban unconcealed
knives in any location and did not expressly ban concealed knives in the
home. (People v.
contain any express restriction on concealment of weapons on the person at
home, and to the extent it [was] capable of being applied improperly in the
home context [], any overbreadth [could have been] cured on a case-by-case
basis.â€].) In this case, former section
12020 was not interpreted to bar concealed weapons in a home.
Former section 12020, subdivision
(a)(4), did not violate the Second Amendment to the United States
Constitution. Appellant’s arguments to
the contrary are rejected.
DISPOSITION
The order denying the suppression
motion and the judgment are affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KUMAR,
J.
I concur:
KRIEGLER,
J.
>
MOSK, J., Concurring
I concur.
I agree
with the court in Wooden v. United States
(D.C. Cir. 2010) 6 A.3d 833, which said as follows: “All this said, the discourse in [District of Columbia v.] Heller [(2008) 554 U.S. 570
(Heller)] is focused exclusively on ‘arms’ or ‘weapons,’ meaning firearms when
read in context. Indeed, Heller
acknowledged the handgun as ‘the quintessential self-defense weapon.’ Furthermore, in citing the Oregon case [
the Supreme Court only indirectly recognized the possible Second Amendment
protection for knives in common use at the time; the Court did not elevate to Heller’s
text, and thus give express endorsement to, the list of colonial arms mentioned
by the Oregon court and the secondary sources it cited. [¶]
Perhaps a detailed Heller-type analysis would result in a
conclusion that some kinds of knives today -- perhaps ordinary pocket knives or
key chain knives, if not switchblades -- are analogous to arms ‘typically
possessed by law-abiding citizens for lawful purposes’ in colonial days, even
though ‘not in existence at the time of the founding.’ If so, such knives may qualify for Second
Amendment protection. But if Heller ‘error’ there be, we cannot find it
‘plain’ – ‘clear’ or ‘obvious’ -- that the Heller Court would extend its
ruling to knives carried exclusively for use as a dangerous weapon in
self-defense. Absent the kind of
historical analysis the Court applied to guns, Heller does not give us
the assurance necessary to find plain error in the CDW instructions as applied
to knives.†(Id. at pp. 839-840, fns. omitted.)
MOSK,
Acting P. J.
the hearing on appellant’s motion to suppress.
expectation of privacy include “whether a defendant asserted a property or
possessory interest in the area searched or the property seized [citation],
whether a defendant has a right to exclude others from access to the searched
premises [citation], whether a defendant is legitimately on the premises [citation],
whether a defendant has entered into an arrangement indicating ‘joint control
and supervision of the place searched’ [citation], whether a defendant had a
subjective expectation that the item seized or the place searched would remain
free from governmental intrusion, and whether a defendant took normal
precautions to maintain his or her privacy [citation].†(People
v. Madrid (1992) 7 Cal.App.4th 1888, 1896.)
