People v. Constancio

• Decision Date: 17 October 1974
• Docket Number: Cr. 7394
• Citation: 116 Cal.Rptr. 910,42 Cal.App.3d 533
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Gail Lynn CONSTANCIO, also known as Gail Ragsdale and Helen A. Vallesteros, Defendants and Appellants.

Page 910

116 Cal.Rptr. 910

42 Cal.App.3d 533

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gail Lynn CONSTANCIO, also known as Gail Ragsdale and Helen A. Vallesteros, Defendants and Appellants.

Cr. 7394.

Court of Appeal, Third District, California.

Oct. 17, 1974.

Evelle J. Younger, Atty. Gen., by Susan Cohn, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

Richard H. Will, Rancho Cordova, for defendants and appellants.

PUGLIA, Associate Justice.

Defendants Helen Vallesteros and Gail Constancio were jointly tried and convicted by jury of possession of heroin (Health & Saf.Code, § 11350). Additionally, the jury convicted defendant Constancio of possession of amphetamines (Health & Saf.Code, § 11350) and possession of paraphernalia for the use of a controlled substance (Health & Saf.Code, § 11364). Defendants contend that the search which produced evidence essential to their convictions was unlawful and that they did not receive effective assistance of counsel. Our review of the record and the applicable law convinces us that the defendants' contentions must fail and that the judgments must be affirmed.

In the afternoon of July 16, 1973, law enforcement officers went to the residence occupied by defendants for the purpose of searching the residence and the person of defendant Constancio. The officers had information from a confidential, reliable informant, based upon the informant's personal observations, that the defendants had sold heroin from the residence within three to four days before the 16th of July. The officers did not have a search warrant or warrant of arrest. They knew, however, that defendant Constancio was on probation and that as a condition of probation her person and property could, with reasonable cause, be searched by a peace officer without a search warrant. On arrival, Officer James Davis knocked on the door. Defendant Vallesteros came to a window, opened the curtain and asked the officer what he wanted. ¹ The officer replied, 'It's Jim, and I want to talk to Gail.' Vallesteros then opened the front door, leaving the screen door closed. She again inquired of Davis what he wanted. Davis repeated his earlier response. He observed defendant Constancio standing behind Vallesteros in the living room about six feet beyond the doorway. Davis opened the screen door and, standing at the threshold without entering, displayed his identification and advised who he was and the purpose for which he was there. The officers then entered. In the residence they found heroin and paraphernalia including spoons, syringes and needles. They also found amphetamine tablets in defendant Constancio's purse and heroin on the person of defendant Vallesteros.

I

Defendants make no claim that a search pursuant to the authority of a probation order is unreasonable per se. In any event, under the controlling authorities such a contention would necessarily be unavailing. (People v. Mason (1971) 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630; Russi v. Superior Court (1973) 33 Cal.App.3d 160, 108 Cal.Rptr. 716; People v. Bremmer (1973) 30 Cal.App.3d 1058, 106 Cal.Rptr. 797; People v. Kern (1968) 264 Cal.App.2d 962, 71 Cal.Rptr. 105.) Rather, defendants contend a search under authority of a probation order is unreasonable unless the suspected conduct of the probationer, relied upon as justification therefor, is shown to be similar or related to the offense for which probation was imposed.

It is the burden of the defendant in a criminal case to raise the issue of illegally obtained evidence (People v. Prewitt (1959) 52 Cal.2d 330, 335, 341 P.2d 1). When the defendant challenges the legality of a search and seizure, a showing that the search was made without a search warrant establishes a prima facie case and the burden of justification therefor then rests upon the People. (People v. Villalva (1973) 33 Cal.App.3d 362, 366, 109 Cal.Rptr. 16.) Prior to trial defendants noticed a motion to suppress evidence (Pen.Code, § 1538.5). The motion was dropped before hearing at defendants' request. There were no other pretrial proceedings to suppress evidence nor did defendants during trial raise the claim now asserted. ²

The record does, incidentally, reveal that the instant search was not authorized by a search warrant. Notwithstanding that fact, for the reasons heretofore pointed out, the People's burden of justification arises only after defendant has first initiated a challenge to the legality of the search. Since there was no challenge on the grounds now asserted, the record, not surprisingly, does not disclose the offense for which defendant Constancio was placed on probation or the duration or other incidents of her probationary status except for the probation search condition. ³

Defendants' first contention is thus answered by the rule that a judgment may not be reversed because of the alleged erroneous admission of evidence unless the record demonstrates that a motion to exclude or strike the evidence was timely made on the specific ground asserted on appeal (People v. Talley (1967) 65 Cal.2d 830, 837--838, 56 Cal.Rptr. 492, 423 P.2d 564; People v. McDowell, (1972) 27 Cal.App.2d 864,103 Cal.Rptr. 726; People v. Johnson (1970) 5 Cal.App.3d 851, 863, 85 Cal.Rptr. 485.)

II

We do not, however, dispose of defendants' first contention on the grounds so far discussed since defendants allege incompetence of trial counsel in failing to attack the search as an unreasonable exercise of the probation search condition. ⁴ Defendants rely exclusively on dicta in People v. Bremmer, supra, 30 Cal.App.3d 1058, 106 Cal.Rptr. 797, for the proposition that a warrantless search of a probationer by a law enforcement officer, relying for authority upon a probation search condition, is justified only when the officer has information about the probationer's current activities reasonably suggesting that the probationer has resumed the very type of misconduct for which he was placed on probation. Defendants contend that trial counsel was derelict in not moving to suppress on the ground furnished by Bremmer and that such failure resulted in withdrawal of a crucial defense.

Any attempt to evaluate defendants' claim necessarily leads us into the realm of speculation since it is as reasonable to suppose that Constancio was on probation for a drug offense as for some other offense less closely related to her present misconduct. In the present state of the record then, we could dispose of this contention summarily, deferring consideration of the merits to a collateral proceeding in which the defendants presumably could develop the factual predicate underlying their claim. To do so, however, would only burden the courts with needless litigation since we are satisfied that the legality of a probation search is not determined by the relationship, or lack thereof, of the probation offense to the conduct relied upon to justify the search.

We think the dicta in Bremmer purporting to limit probation searches only to those situations where the probationer is suspected of a repetition of past misconduct is altogether too confining. There are numerous other situations, frequently recurring, which reasonably require resort to the search authority of a probation order to monitor the probationer's compliance with the law.

Typically the search condition is imposed as a condition of probation extended to offenders whose pattern of criminal activity includes crimes characterized by possession of contraband such as illegal drugs or identifiable stolen property. The search condition is thus commonly employed when probation is granted to persons convicted of violation of the drug laws or of an offense against property such as burglary, theft of receiving stolen property.

It requires no recitation of authority to observe that drug offenders frequently commit burglary and theft as a means of funding their illegal activities with drugs. When a drug probationer falls from grace his renewed criminal conduct may well involve possession of identifiable stolen property or the instrumentalities with which to commit offenses against property. Similarly when one on probation for an offense against property such as burglary, falls from grace, his relapse into criminal activity may very well involve trafficking in and possession of illegal drugs or drug paraphernalia.

The probation search condition may also be utilized with those probationers whose criminal conduct consists of obtaining money from others by larceny or fraud where the illegal conduct is motivated by a purpose to obtain funds with which to acquire illegal drugs. While money, the immediate fruit of such crimes, is fungible, the possession of identifiable contraband, i.e., illegal drugs, is a characteristic of the probationer's pattern of criminal conduct. Although typically on probation for theft, forgery or check offenses, a return to criminal activity by one of the latter class of probationers frequently involves possession of illegal drugs or drug paraphernalia as well as the instrumentalities with which to commit offenses similar to the original probation offense.

The foregoing is illustrative of several types of cases in which a probation search condition is sometimes imposed. The condition is obviously designed to minimize the risk to the public safety inherent in the conditional release of a convicted offender. That purpose is not served by an artificial limitation, the effect of which is to foreclose to law enforcement authorities the opportunity to implement the condition, notwithstanding a reasonable belief that the probationer is in possession of contraband and once again engaged in criminal activity, albeit activity not identical to that for which convicted and placed on probation. That such a limitation is not constitutionally compelled is demonstrated by People v. Mason, supra, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630, where our Supreme Court upheld a...