P. v. Shanley

Filed 10/3/06 P. v. Shanley CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.

Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Meagan J. Beale, Supervising Deputy Attorney General, and A. Natasha Cortina, Deputy Attorney General, for Plaintiff and Respondent.

Pursuant to a plea agreement, on March 1, 2005, defendant Lee Robert Shanley pleaded guilty to manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)) and admitted the allegation that he had suffered a residential burglary conviction (Pen. Code, §§ 1170.12, subd. (a)-(d) & 667, subd. (b)-(i)). He also waived his right to appeal. In accordance with the plea agreement and on that same day, the trial court sentenced defendant to a total term of 14 years in state prison. On May 4, 2005, defendant filed a notice of appeal and request for certificate of probable cause. The trial court denied the certificate of probable cause on May 11, 2005. Nonetheless, defendant sought, and this court granted, his request to have the notice of appeal deemed timely filed under the constructive filing doctrine. On appeal, defendant contends the trial court erred in denying his motion to suppress evidence. He argues that the evidence that he was on parole did not comply with the Harvey-Madden^[1] rule and his sister’s telephonic consent was invalid because she was not present.

PROCEDURAL BACKGROUND AND FACTS

While on parole and living with his sister, defendant manufactured methamphetamine out of his sister’s detached garage. The methamphetamine lab was discovered by San Bernardino Deputy Sheriff Jeremy Martinez during a search consented to by defendant’s sister and defendant’s parole agent.

Defendant was not present at the time of the search but returned to his sister’s apartment two days later. At that time, the deputies arrived, knocked and entered the apartment. They found defendant hiding in a closet. During a booking search of defendant, the officers found methamphetamine. After waiving his Miranda^[2] rights, defendant also admitted that he was on parole and that he was living with his sister.

MOTION TO SUPPRESS

A. The Hearing.

Defendant moved to suppress evidence on the grounds that the warrantless entry was unreasonable. At the hearing, San Bernardino Deputy Sheriff Jeremy Martinez testified that on August 28, 2003, defendant’s name came up while conducting a methamphetamine manufacturing investigation. Upon running a system check on defendant, the deputy received information that defendant was on parole. The deputy contacted defendant’s parole agent, Agent Paredes, and received confirmation of this information. Deputy Martinez also obtained permission from Agent Paredes to search defendant’s identified residence, an apartment rented by defendant’s sister.

Defense counsel objected on hearsay grounds to the information that defendant was on parole. The trial court overruled the objection, noting that it was not clear whether or not the truth of whether defendant was on parole was relevant at this point. When the prosecutor asked the deputy what the parole officer said concerning defendant’s parole status, defense counsel again objected on hearsay and additionally on lack of foundation. The prosecutor responded that the statements were not offered for the truth of the matter asserted and, even if they were, “the consent to conduct a search from Agent Paredes would not be subject to the hearsay rule.” The trial court agreed. Later, the court again explained to defense counsel that there were exceptions to the hearsay rule and words of consent fall within those exceptions.

Deputy Martinez testified that he went to defendant’s apartment and met Calvin Rust, boyfriend of defendant’s sister. The deputy told Rust that he was there to conduct a parole search on defendant. Rust said that defendant lived in the apartment with his sister, but defendant was not in. Rust was aware that defendant was on parole. The trial court overruled defendant’s hearsay and lack of foundation objections. Rust allowed Deputy Martinez to enter and search the apartment. Rust then called defendant’s sister and put the deputy on the phone. The deputy advised defendant’s sister of the purpose of the investigation and obtained permission to search the detached garage.

At the garage, Deputy Martinez observed a padlock and smelled a chemical odor. After obtaining permission of defendant’s sister, the deputy broke the lock. Defense counsel’s hearsay objection was overruled. Inside the garage, the deputy went to the source of the odor, a plastic box. He opened it and found items which he had found at previous methamphetamine labs. The deputy promptly exited the garage, kept everyone away, and contacted Detective Eric Mello of the narcotics investigation division.

Detective Mello also testified at the suppression hearing. He stated that after defendant’s arrest and waiver of Miranda rights, defendant admitted that he was on parole at the time of the search.

In addition to the above testimonies, the prosecutor introduced a certification of parole status as a certified government document. Defense counsel objected as unreliable, lack of foundation and hearsay. The prosecutor pointed out that the document was a certified copy of defendant’s parole record with an attached letter of certification by Agent Vasquez as to the records, their scope, where they came from, and that Agent Vasquez believed under penalty of perjury that they were accurate. The trial court overruled defense counsel’s objection and admitted the document into evidence.

Defendant took the stand and testified that he was familiar with the box that contained the methamphetamine lab and that it had a lock on it. On cross-examination, and over defense counsel’s objection, defendant testified that his sister had lived in the apartment for three years and that he had stayed with her “both times that I paroled.”

At the end of the hearing, defendant argued the search was unreasonable because of the lack of probable cause and the nature and timing of the search. The trial court denied the motion, finding the search reasonable.^[3]

B. Standard of Review.

When a trial court’s ruling on a motion to suppress evidence is challenged on appeal, we review its findings of fact under the deferential substantial evidence standard. We exercise our independent judgment to determine whether, on the facts found, the search was reasonable under the Fourth Amendment. (People v. Carter (2005) 36 Cal.4th 1114, 1140-1141; People v. Leyba (1981) 29 Cal.3d 591, 596-597.)

C. Harvey-Madden Rule.

Defendant contends the trial court incorrectly denied his suppression motion because the prosecutor failed to show the basis for, and thus the reliability of, information Deputy Martinez received regarding defendant’s parole status. According to defendant, the prosecutor’s case did not meet the requirements of the Harvey-Madden rule. Under that rule, when law enforcement officers rely solely on information obtained from another police officer as the basis for a search or arrest, the prosecutor must establish the source, or reliability, of the other officer’s information. (Remers v. Superior Court of Alameda County (1970) 2 Cal.3d 659, 667.) “To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer.” (Id. at pp. 666-667.)

We reject this argument for the following reasons. First, as respondent points out, defendant made several evidentiary objections such as hearsay or lack of foundation and challenged the reasonableness of the search; however, he never raised a Harvey-Madden objection. His failure to object on these grounds waives appellate review. (Evid. Code, § 353, subd. (a); People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Benson (1990) 52 Cal.3d 754, 788, citing People v. Rogers (1978) 21 Cal.3d 542, 548 [bar against raising a Harvey-Madden issue for the first time on appeal “is but an application of the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal”].) Second, this case is not a case in which the search of defendant’s sister’s apartment was based solely on information obtained from a single officer or official source. When Deputy Martinez searched the records and discovered defendant’s parole status, he then contacted the parole agent, who confirmed such information. Moreover, when he arrived at the apartment, defendant’s sister’s boyfriend also acknowledged defendant’s parole status. And finally, the prosecutor produced independent evidence proving the existence of defendant’s parole status. Defendant admitted to Detective Mello that he was on parole, defendant testified at the hearing that he was on parole, and the prosecutor introduced a certification of parole status as a certified government document.^[4]

D. Defendant’s Sister’s Consent to Search.

Defendant contends that his sister’s consent to search “was vitiated by her absence from the premises, by the lack of an emergency, and by the forceful, intrusive nature of the entry.” We disagree.

Defendant’s sister clearly had authority to consent to a search of her own apartment--a place in which defendant had no possessory interest. (People v. Jenkins (2000) 22 Cal.4th 900, 976 [“it is settled that ‘the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared’”].) Regarding the garage and the plastic box, at the suppression hearing, defendant suggested that his sister may have arranged to have the box stored in the garage and that he did not have access. Given the status of Defendant’s sister as being the lease holder of the apartment and garage, her unconditional consent authorized Deputy Martinez to break the lock, enter the garage, and search any container inside, including the plastic box. (People v. Jenkins, supra, 22 Cal.4th at pp. 975-976.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

RICHLI

J.

KING

J.

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^[1] People v. Harvey (1958) 156 Cal.App.2d 516, 521, and People v. Madden (1970) 2 Cal.3d 1017, 1021.

^[2] Miranda v. Arizona (1966) 384 U.S. 436.

^[3] Although respondent argues that defendant voluntarily waived his right to appeal by entering into the plea bargain, we have chosen to address defendant’s claims. By doing so, we express no opinion on the merits of respondent’s waiver argument.

^[4] Although defendant challenges the trial court’s rulings as to his objections to various testimony and evidence, we find no abuse of discretion in the trial court’s rulings.