P. v. Pressly

Filed 9/28/06 P. v. Pressly CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson and Roger W. Krauel, Judges. Affirmed.

A jury found Stuart Scott Pressly guilty of robbery. (Pen. Code,^[1] § 211.) In bifurcated trials, the court found Pressly guilty of possession of a firearm by a felon (§ 12022, subd. (a)(1)), and subsequently found true allegations he had served two prior prison terms for six felony convictions (§ 667.5, subd. (a)) and that all six of those prior felony convictions had constituted both serious felony priors and strike priors (§§ 667, subd. (a)(1), 667, subds. (b)-(1), 668, 1170.12). The court sentenced Pressly to 60 years to life in prison, consecutive to a 25-year-to-life term he was already serving on a Los Angeles case.

Pressly appeals, contending the trial court improperly denied his motion to suppress evidence under section 1538.5 because there was no actual or apparent consent given to search the hotel room in which he had a reasonable expectation of privacy, and there was insufficient evidence to support his robbery conviction. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 1, 2003, Pressly was arrested for the robbery of the Union Bank of California (Union Bank) at the corner of Fourth Avenue and Laurel Street in San Diego. After a November 3, 2003 preliminary hearing, Pressly was bound over for trial and made bail on December 31, 2003. A January 2004 trial date was continued several times due to Pressly’s nonappearance. Subsequently it was discovered that Pressly was in jail in Los Angeles on other charges. In February 2005, Pressly was returned to San Diego to resolve this case.

A. Motion to Suppress Under Section 1538.5

On March 15, 2005, Pressly filed a motion to suppress evidence found in the warrantless search of room number 315 at the Days Inn motel on Pacific Highway in San Diego on the day of his arrest. The People opposed the motion, claiming that Pressly had no reasonable expectation of privacy to challenge the search because he disclaimed possession of the room and had obtained the room by fraud, and that the police had reasonably relied upon consent to search the room given by a woman named Kristen Rubin.

At the April 8, 2005 hearing on the motion, the court considered the facts from the preliminary hearing transcript that showed a bank teller had given the suspect $3,700 plus dollars, which included a stack of $20 bills containing a dye pack; that a former bank employee saw a car two blocks from the bank that had orange-red smoke coming out of it, indicative of a dye pack exploding; that the car was then followed to the area of the Days Inn where Pressly was subsequently detained; that when asked permission to search room 315, Pressly said, “Go ahead. I don’t care. I’m not staying in that room,” and that after another officer asked Rubin for permission to search room 315, she gave verbal and written consent to do so, followed by the search of the room which was the subject of the motion.

The court then heard evidence from five prosecution witnesses. The gist of their testimony showed that San Diego police officers were alerted by radio to check the Days Inn for a bank robbery suspect around 9:52 a.m. on October 1, 2003. The motel room doors and open-air walkways leading to the rooms faced the parking lot where the officers arrived in separate cars. Ricardo Rivas and his partner, were flagged down by a motel employee who told them about a potential suspect on the third level. They watched the man get into an elevator on that level and then out of it on the ground level facing the parking lot. The man appeared to have just gotten out of a shower. His hair was really wet, a light reddish stain was bleeding through the white t-shirt he was wearing, and his fingers had red stains on them consistent with the explosion of a dye pack which the officers knew from the radioed broadcast had been given to the bank robber.

At some point San Diego Police Lieutenant James C. Collins joined Rivas and the other officer to talk with the suspect. The officers handcuffed the man and asked him his name and which room was his. The man said his name was Scott Stuart and claimed he was staying in room number 316, which was registered to a woman named Sue whom he had met the previous night. The man took the officers up to the third floor to show them his room, but he could not remember which one he had been staying in. Other officers, including robbery detectives, were already on that floor. At one point, a woman came out of a room and “stated somehow she knew that [the suspect] was staying in the room.”

Collins then went to the motel’s office and checked with the manager to determine who was in room 316. The manager, who could see the detained suspect, said “not that guy.” She said room 316 was registered to a Korean man who was in the process of checking out that morning. When Collins left the manager’s office, he saw some officers talking to the woman in room 315. When he recontacted the suspect in front of the elevator on the ground level, he asked him whether he was staying in that room. The suspect denied several times that he was in room 315 even though the female had said she was in that room with him. At some point the manager gave the police officers the card for room number 315 which showed it was registered September 30, 2003, to a man named Don Cordenron from Reseda, California, who was driving a Toyota which fit the description of the suspect’s car.

Simultaneous to the above police activity, San Diego Police Department robbery detective James R. McGhee also responded to the Days Inn about the bank robbery. He knew from the radio broadcast that the suspect vehicle had been located at the Marina Inn motel next door to the Days Inn and that the suspect had gone to the third floor of the Days Inn. As he pulled into the parking lot of the Days Inn, he saw a man matching a description of the suspect walking on the third floor toward an elevator away from room 315, which had its door open. He also saw a woman outside room 315 “leaning over the railing looking down at all the police officers down below.” McGhee went up to the third floor and contacted the woman because he saw that other officers had contacted the suspect as he got out of the elevator.

While McGhee was outside talking to the woman, he could see into room 315 through its open door. To the right of the door he saw in plain view a round table with a red dye-stained cardboard Heineken beer 12-pack box on top. McGhee asked the woman if she had any identification on her. She said no, but that she had some in her purse or wallet, which was in the room. When McGhee told her to get it, the woman walked into room 315, leaving the door open and reached for a purse near the head of the bed. Because McGhee did not yet know the extent of the woman’s involvement in the robbery, if any, he followed her and stood by the table where she had brought her purse to be sure she did not draw a weapon from the purse. While she looked in the purse for some identification, McGhee saw that the red-stained Heineken box on the table was also stained inside and contained red-stained money. The woman then showed McGhee a jail release form with her name on it, and together they walked back outside where they saw the suspect being escorted by other officers.

Shortly thereafter, McGhee, along with the woman now identified as Rubin, met with lead robbery detective Robert K. Sylvester and Special Agent James Hardie of the Federal Bureau of Investigation who had arrived at the scene outside room 315. McGhee updated Sylvester and Hardie about his conversation with Rubin and his observations regarding room 315. Sylvester also shared information he had received oral consent from the suspect to search the room. Because it appeared that Rubin was associated with room 315 as well, Hardie then asked her if he and the police officers could search the room. Rubin said, “Yes,” and also signed a form authorizing a search of the room.

Hardie and San Diego Police officers then searched the room, recovering dye-stained money from the Heineken beer box and throughout the room, dye-stained clothing from the bathroom tub, and a gun from under the bed. Although Rubin remained outside the room for most of the search, she came in one time to gather up her things. When she did so, she also directed the officers to other items of evidence that were then seized.

During the motion hearing, the court noted it would not consider Pressly’s statements to police which connected him to the room because it found they were not voluntary. At the conclusion of the evidence, the court expressly declined to determine whether Pressly had a reasonable expectation of privacy in room 315, but found that Rubin had an association with the room as Pressly’s roommate which gave her authority to consent regardless of whether Pressly had a privacy expectation. The court thus found “that the entry [and search of room 315 were] lawful based upon the consent from . . . Rubin. . . .” The court clarified that the police acted reasonably in accordance with Rubin’s consent and denied the motion.

B. The Trial

The evidence presented at trial showed that on October 1, 2003, Cristina Zizzo, who was working the counter as a teller at the Laurel Street Union Bank, was approached about 9:45 a.m. by a man wearing a baseball cap and jacket who slid a deposit or withdrawal slip across the desk she had noticed him fill out earlier at a nearby table. When she looked closely at the slip of paper, she noticed it read something like, “This is a robbery,” and then listed various denominations of money, i.e., “100’s, 50’s, and 20’s.” The note also said, “No alarm, no bait, no dye packs.” Zizzo explained that a dye pack was a small electronically triggered explosive device which was concealed in a stack of bills that would detonate, releasing red dye and smoke upon exit from the bank building. The dye pack in her drawer was contained in a stack of $20 bills with a strap around it saying $2,000.

Even though the man had made no threats and had not displayed a weapon, Zizzo, said she was “a little bit” afraid. She thus responded to the note as she had been trained to do, which was not to resist but to comply with a robber’s demands, by immediately removing the money from her two drawers to give to the man. When Zizzo had given the man all the money from her top drawer, except for the one stack of $20 bills which contained the dye-pack according to his instructions, and was preparing to empty her second drawer, the man pointed to that remaining stack and told Zizzo, “Give me those 20’s, too.” Zizzo gave it to him and then proceeded to hand over the money in her second drawer. When she was finished, the man told her in a whisper, “You never saw me” as he turned and left the building, heading west down Laurel. Zizzo hit the silent alarm to alert the police about the robbery as soon as the man stepped outside the bank. She then told her coworker and supervisor she had been robbed.

Sometime later that morning Zizzo went with police officers to the Days Inn where she viewed a suspect who had been detained there and identified him as the robber. She noted he had changed clothes since the robbery. Zizzo identified Pressly in court as the man who had robbed her and also identified him in photos she was shown which were taken from the bank’s video of the robbery.

Testimony of other prosecution witnesses also confirmed Pressly’s identity as the bank robber that morning. Jennifer Tarver, who had previously worked as a bank teller, testified she was driving her car near Union Bank around the time it was robbed when she saw someone driving away from the bank in an older model Toyota Corolla with orange smoke bellowing from inside. She watched the car, at first thinking it was on fire, but then based on her banking experience recognized the colored smoke was similar to that from a bank dye pack and “strongly associated the possibility of a bank robbery.” When the car pulled into a nearby parking lot, Tarver followed it, parked at a distance and continued to watch the car as she called 911 on her cell phone to report her suspicions. She saw a man in a baseball hat and jacket get out of the car, look around, and then wave some smoke out of the car before getting back in and taking off. Tarver followed the car again, relaying its progress to an emergency dispatcher as she drove. When the man driving the Toyota realized he was being followed, he accelerated and ran a stop sign. Tarver then ended her pursuit of the robber and returned to Union Bank to talk with police officers who had arrived in response to the robbery.

After telling police what she had witnessed, an officer took Tarver in his car to retrace the route the robber had taken and to try to find the robber’s car. The officer drove Tarver to the Days Inn when he received a radio call that the car matching the description of the robber’s car had been located near the motel. By the time they reached the motel, other police officers were there and had a suspect in custody in the parking lot. Although the man had on different clothing, Tarver identified him as the person she had seen driving the “smoking” car and standing in the parking lot. She also identified Pressly in court as the person she had seen that day.

An older man, who had been sitting in his car with his wife waiting for an appointment in the parking lot near Union Bank close to the time of the robbery, also testified about seeing the driver of the Toyota with red smoke pouring out of it. He made eye contact with the driver when he pulled into the parking lot, parked next to the older man’s car, got out and tried to wave the smoke out of the car. After the Toyota left, the older man made a statement about the incident to the police who had arrived to investigate the bank robbery and was also taken to view a suspect at the Days Inn. Pressly was identified by the older man both at the motel and in court as looking like the person in the car that emitted red-colored smoke.

Detectives McGhee and Sylvester each testified at trial, as they had respectively testified at the suppression hearing and preliminary hearing, about Pressly being found and taken into custody at the Days Inn. McGhee told the jury about the layout of the motel, about the suspect walking away from room 315 where a woman was standing outside leaning over the walkway railing, about the suspect getting into an elevator and being detained by other officers on the first floor, about talking to the woman, about viewing a red-stained cardboard beer box filled with stained cash in room 315 while the woman obtained some identification from her purse in the room, and about escorting the woman back out of the room to wait for Sylvester.

Sylvester further told the jury about seeing Pressly detained by officers on the ground floor with his hair and skin wet, looking as if he had just taken a shower, and about the subsequent search of room 315. In that search, the officers found there were red dye marks on the bathroom shower head and red-stained clothing, including a jacket and baseball cap, in the tub. Elsewhere in the room, the officers found Pressly’s business card, his card for a video rental store in a shaving kit, a .22 semiautomatic handgun and $3,750 in cash, some of which was stained red.

In addition to some testimony about finding the dye pack from Union Bank that had exploded near some Laurel Street rental units several months after the robbery, Officer Rivas completed the prosecution case, testifying about the various witness curbside identifications of Pressly in the Days Inn parking lot area.

Pressly rested his case without presenting a defense. His argument to the jury was that his crime was only grand theft because he used no force in taking the money and the bank teller Zizzo had said she was only a little bit afraid which he maintained was insufficient to show he took the money from the bank by fear. The jury determined otherwise.

DISCUSSION

I

CONSENT TO SEARCH

Pressley contends the trial court erred in denying his in limine motion to suppress the evidence seized from the motel room under section 1538.5 because, contrary to what the trial court found, Ms. Rubin had neither actual nor apparent authority to consent to the search of the room. The People assert Pressly lacked a reasonable expectation of privacy in room 315, and that the court correctly determined that the search was reasonable on the grounds of consent. For the reasons that follow, we conclude that the court properly denied the motion to suppress because the search was consensual.

Our review of a trial court’s ruling on a motion to suppress evidence under section 1538.5 is well settled. Reviewing the record in the light most favorable to the trial court’s ruling, we defer to the court’s factual findings, express or implied, if such findings are supported by substantial evidence. All presumptions favor the trial court’s exercise of its “ ‘power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences . . . .’ “ (People v. Leyba (1981) 29 Cal.3d 591, 596.) We then independently determine what legal principles are relevant and apply those principles to the facts so found and determine whether, as a matter of law, the search or seizure was reasonable under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924; People v. Miranda (1993) 17 Cal.App.4th 917, 922.)

Addressing the legal principles relevant to this case first, our Supreme Court in People v. Jenkins (2000) 22 Cal.4th 900 (Jenkins) clearly and fully set forth the applicable law as follows:

”The Fourth Amendment protects an individual’s reasonable expectation of privacy against unreasonable intrusion on the part of the government. A warrant is required unless certain exceptions apply, including the exception that permits consensual searches. [Citations.]

As the high court has explained: ‘The touchstone of the Fourth Amendment is reasonableness. [Citation.] The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.’ [Citation.] A warrantless search may be reasonable not only if the defendant consents to the search, but also if a person other than the defendant with authority over the premises voluntarily consents to the search. [Citations.]

Further, the United States Supreme Court has stated that ‘in 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 which 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.” ‘ [Citations.] The defendant must assert a reasonable expectation of privacy in ‘ “the particular area searched or thing seized in order to bring a Fourth Amendment challenge.” ‘ [Citation, italics in original.]

A defendant has the burden at trial of establishing a legitimate expectation of privacy in the place searched or the thing seized. [Citations.] The prosecution has the burden of establishing the reasonableness of a warrantless search. [Citations.] The state may carry its burden of demonstrating the reasonableness of a search by demonstrating that the officer conducting the search had a reasonable belief that the person consenting to the search had authority to do so; it is not required that the state establish that the person consenting to the search had actual authority to consent. [Citations.]” (Id. at pp. 971-972.)

Here, as noted in the recitation of facts above that were presented for the hearing on the motion to suppress, which included evidence produced at the preliminary hearing, Pressly did not expressly assert that he had any possessory interest or legitimate expectation of privacy in room 315 and the trial court declined to determine whether he had such interest. As the People correctly point out in their respondent’s brief, because Pressly specifically disclaimed several times any association with room 315 (see People v. Dasilva (1989) 207 Cal.App.3d 43, 48), and had registered for the room under a false name (see People v. Satz (1998) 61 Cal.App.4th 322, 326), the court could have properly denied Pressly’s suppression motion on grounds he had no legitimate expectation of privacy in room 315.^[2]

However, even assuming for the purpose of this appeal that Pressly had carried his burden of showing a legitimate expectation of privacy in objects found inside the room, i.e., his clothes, shaving kit, car keys, etc. by impliedly claiming such interest in his motion papers, we still conclude the search of the room where these objects were found was reasonable based on Rubin’s third party consent to the search.

Pressly does not challenge Rubin’s consent to search room 315 as involuntary. Rather, he merely claims the evidence showed she had “neither actual nor the apparent authority to consent . . . .” We disagree.

Generally, “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.” (United States v. Matlock (1974) 415 U.S. 164, 170; Jenkins, supra, 22 Cal.4th at pp. 976-977.) Such is also true of a third-party who has an “other sufficient relationship to the premises or effects sought to be inspected.” (Matlock, supra, 415 U.S. at p. 171.) The question becomes whether the “ ‘facts available to the officer at the moment . . . [would] “warrant a man of reasonable caution in the belief” that the consenting party had authority’ over the property as to which consent is given. [Citation.]” (Jenkins, supra, 22 Cal.4th at pp. 977-978.) In answering this question, “mutual use of the premises [is] significant in establishing a third party’s authority to consent to a search of the premises . . . .” (Id. at p. 979.) On appeal, we consider the record in the light most favorable to the trial court’s ruling on a consent justification for a challenged search, and defer to all express and implied factual findings supported by substantial evidence. (Id. at p. 973.)

Applying these rules here, we reject Pressly’s contention Rubin had no authority to consent to a search of room 315. As the above facts showed, Rubin was initially observed by Detective McGhee outside room 315’s open door as Pressly appeared to be walking away from her and the room. When McGhee contacted her and asked for identification, Rubin went into room 315 to get her purse located near the head of the bed, and she remained in the room while she looked through her purse for some identification. At one point, Rubin told officers who had brought Pressly up to the third level that she was staying with him in room 315. The above information was relayed to Agent Hardie before he asked Rubin for her consent to search the room. Under these circumstances known to the officers at the time of the search, it was objectively reasonable for them to conclude Rubin had authority to consent to the search of room 315 because it was reasonable for the officers to believe she was staying in the motel room or at least had some type of relationship to or mutual use of the room so as to exercise joint access and control over it.^[3]

Accordingly, we conclude the officers reasonably relied upon Rubin’s oral and written consent to search room 315 and that the trial court thus properly denied Pressly’s motion to suppress the evidence found during that search.

II

SUBSTANTIAL EVIDENCE OF FORCE OR FEAR

Pressly also contends his robbery conviction must be reversed because there is insufficient evidence to support the element of force or fear for such bank robbery. He specifically argues that because there was no evidence he threatened or displayed a weapon, and the bank teller victim testified she was only in “a little” fear, the evidence was unsubstantial to show any force or the degree of fear necessary for the crime of robbery. Pressly, therefore, asserts his conviction must be reversed or reduced to the lesser included offense of grand theft. We disagree.

In reviewing the sufficiency of the evidence to support a conviction, we determine “ ‘whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under such standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury’s conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)

In making the determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether “ ‘ “any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt.” ‘ [Citations.]” (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that “on no hypothesis whatever is there sufficient substantial evidence to support the verdict” the conviction will not be reversed. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

With regard to the crime of robbery, section 211 provides that “[r]obbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Although the terms “force” and “fear” have no technical meaning, their meanings are respectively presumed to be within the common sense understanding of the jurors who decide the question of whether the elements of force or fear have been established by the evidence in a case. (People v. Wright (1996) 52 Cal.App.4th 203, 210.)

With regard to the element of fear for purposes of robbery, CALJIC No. 9.41 provides that such element “may be either:

1. The fear of an unlawful injury to the person or property of the person robbed, or to any of his or her relatives or family members; or

2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.” Generally, such element “is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for his [or her] property.” (People v. Ramos (1980) 106 Cal.App.3d 591, 601-602, overruled on another point in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16.) Where a victim has downplayed his or her fear, such may be inferred from the circumstances surrounding the offense that are reasonably calculated to produce fear. (People v. Cuevas (2001) 89 Cal.App.4th 689, 698.) Moreover, even where a victim does not expressly testify that he or she was afraid in connection with the taking, if there is some evidence from which a trier of fact can infer the victim was “in fact afraid, and that such fear allowed the crime to be accomplished [citations]” (People v. Mungia (1991) 234 Cal.App.3d 1703, 1709, fn. 2), the element of fear for robbery will be satisfied. (Ibid.)

Here, the record before the jury, viewed in accordance with the above rules, showed the bank teller victim was in fear while being robbed by Pressly. Not only had the teller testified she was ”a little afraid” when she read Pressly’s robbery note which he had pushed across the counter toward her, she immediately complied with his written demand, giving him all the money from her top drawer with the exception of the package of “20’s” containing the dye pack according to his instructions. When Pressly then demanded she “give [him] those 20’s” as she was closing that drawer, she immediately handed “those 20’s” to him, fully complying with his subsequent verbal command. After the teller had given Pressly all the money from her two drawers, she waited until he had left the bank to push the silent alarm and alert her supervisor and coworkers that she had been robbed, consistent with bank policy for her protection and others in the bank and Pressly’s implied threat that she never saw him.

From the totality of this evidence, a reasonable jury could have found that the victim bank teller was in fear when she complied with Pressly’s demand for money and waited to report the robbery until after he had left the bank. (See People v. Hill (1998) 17 Cal.4th 800, 850.) Substantial evidence thus supports the jury’s finding Pressly used fear to commit the bank robbery and his conviction will not be disturbed on appeal.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] Although the trial court did make a specific finding that statements to police by Pressly were coerced because he was not Mirandized before the police asked whether he was staying in room 315 and whether they could search it, such essentially goes to the issue of whether Pressly’s oral consent given to Detective Sylvester was voluntary, not to whether Pressly had a reasonable expectation of privacy in room 315.

^[3] Contrary to Pressly’s assertion Rubin’s alleged prior arrest for prostitution somehow destroys her authority to consent, the fact that she may have hooked up with him after being released from jail in Los Angeles on prostitution charges simply is not relevant to the determination of whether she had or appeared to have mutual control of the room in which she stayed with Pressly in San Diego.