People v. Lewis

• Decision Date: 25 August 1999
• Docket Number: No. A083095,A083095
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 7010, 1999 Daily Journal D.A.R. 8855 The PEOPLE, Plaintiff and Respondent, v. Perro Peter LEWIS, Defendant and Appellant.

Page 231

88 Cal.Rptr.2d 231

74 Cal.App.4th 662, 99 Cal. Daily Op. Serv. 7010,

1999 Daily Journal D.A.R. 8855

The PEOPLE, Plaintiff and Respondent, v. Perro Peter LEWIS, Defendant and Appellant.

No. A083095.

Court of Appeal, First District, Division 4, California.

Aug. 25, 1999.

Certified for Partial Publication. ^*

Matthew Zwerling, Executive Director, Mark Shenfield, First District Appellate Project, Counsel for appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Joan Killeen, Supervising Deputy Attorney General, George F. Hindall, III, Deputy Attorney General, Counsel for respondent.

POCHE, J.

A jury found defendant Perro Peter Lewis guilty of kidnapping for robbery (Pen.Code, § 209, subd. (b)(1)), five counts of robbery (Pen.Code, § 211), and five counts of vehicle theft (Veh.Code, § 10851); the jury also found true half a dozen weapon use enhancement allegations (Pen.Code, § 12022). After defendant admitted two prior serious felony convictions, the trial court sentenced him to state prison for an indeterminate sentence of life and a consecutive determinate sentence of 14 years.

This is defendant's second appeal. His first resulted in an unusual reversal. We concluded that a lost transcript of some of the proceedings conducted on a suppression motion required other contentions in effect to be held in abeyance until this problem was resolved. We therefore remanded the cause to the trial court in order to provide it an opportunity to make good that omission. (People v. Lewis (June 17, 1997), A073849 [nonpub. opn.].) Pursuant to our remittitur, the trial court in essence conducted a rerun of testimony covered by the missing transcript. It then again denied defendant's suppression motion and reinstated the judgment. Defendant filed a timely notice of appeal.

We first conclude that the suppression motion was correctly denied. In so concluding we join with other jurisdictions that have held that a police officer need not obtain an arrest warrant before entering a parolee's house for the purpose of taking the parolee into custody. We then consider and find without merit the contentions made by defendant on his initial appeal but not addressed by us at that time. In light of these conclusions, we affirm the judgment of conviction.

REVIEW

I

The basic issue of the suppression motion, insofar as it was impacted by the missing transcript, was whether defendant's warrantless arrest in his home by Oakland Police Officer Grubensky violated People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, which generally forbids warrantless home arrests. We noted that the only evidence we had on this issue in the remaining transcript came from defendant himself and strongly supported his Ramey claim. Unwilling to order a complete retrial, we opted for the "less drastic measure" of giving the trial court and the parties the opportunity in effect to recreate the missing transcript by reconvening that part of the suppression hearing reported in the missing transcript. This is pretty much what occurred. The same two witnesses who had testified on the missing day of the first suppression hearing testified again following our remand. It also appears that the prosecution made new arguments that had not been raised at the first hearing. Wholly apart from the Ramey issue, the prosecutor also argued that defendant's arrest was supported by probable cause.

The essential facts are not in dispute. On September 30, 1991, Oakland police were looking for defendant. They were looking very hard because there had been a rash of robberies in the vicinity of the address defendant had given as his residence to his parole agent. A number of victims had already identified defendant as the robber. In the late afternoon of the 30th, there was another robbery. Officer Grubensky, who earlier that day had told a superior that he was looking for defendant, was the first officer to speak with the victim. After getting a description, he went immediately to defendant's address. Grubensky knocked at the door, which was answered by defendant's mother. She asked who was there, and Grubensky answered "Oakland Police." Defendant's mother opened the door, at which defendant asked who it was. She told him "The police." Grubensky entered the house and arrested defendant. After several minutes the latest victim was brought to the scene, where she identified defendant (who was in the back of Grubensky's vehicle) as the man who had just robbed her. Defendant's parole officer had unsuccessfully tried to arrest defendant at his home earlier that month. Grubensky's superior officer, Sergeant Delgadillo, was not positive he had informed Grubensky of defendant's status as a parolee, but it would have been Delgadillo's practice to have done so.

Defendant's position at the hearing conducted pursuant to our remand was quite precise; although conceding that Officer Grubensky had probable cause to arrest him and that his parole search condition ¹ would have authorized Grubensky's entry for purposes of a search, defendant argued that the search condition could not serve as authority for the warrantless entry to effect an arrest, and no exigent circumstance existed to justify Grubensky's entry. The trial court ruled as follows: "It's my conclusion that Officer Grubensky's entry into the house was justified by the parole search clause. [p] The arrest inside the house was based on probable cause and did not violate Ramey. [p] In view of that conclusion, we really don't need to examine whether there were exigent circumstances which also may have justified the entry."

Defendant renews this argument. As will be shown, it is riddled with factual and legal weaknesses. To be fair, a large measure of the legal deficiencies reflect a sea change in the governing law since defendant first made his suppression motion in 1992. Moreover, that change is continuing, and has largely overtaken defendant's approach to the topic.

The change began after defendant was arrested and while he was being tried. In In re Tyrell J. (1994) 8 Cal.4th 68, 32 Cal.Rptr.2d 33, 876 P.2d 519, our Supreme Court held that a juvenile probationer subject to a search condition of probation could be searched by an officer who was unaware of the condition at the time of the search. Drawing extensively upon federal precedent, the Court noted the principle that "the government may dispense with the warrant requirement in situations when ' "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable" ' " and how the operation of a probation system presented special needs of speed, deterrence, and deference to a separate administrative system. (Id. at pp. 77-78, 32 Cal.Rptr.2d 33, 876 P.2d 519, quoting Griffin v. Wisconsin (1987) 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709.) Following the approach of this court in In re Marcellus L. (1991) 229 Cal.App.3d 134, 279 Cal.Rptr. 901, the Court concluded that "a juvenile probationer subject to a valid search condition does not have a reasonable expectation of privacy over his or her person or property" unless the search is arbitrary, capricious, or intended to harass. (In re Tyrell J., supra, at pp. 83-84, 86-89, 32 Cal.Rptr.2d 33, 876 P.2d 519, original italics.)

The fundamental shift occurred in 1998, after the trial court had complied with our remand and while defendant's current appeal was pending in this court. In People v. Reyes (1998) 19 Cal.4th 743, 80 Cal.Rptr.2d 734, 968 P.2d 445, the Court overruled a previous decision, People v. Burgener (1986) 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251, and held that an adult parolee subject to a search condition could be searched even if the searching officers did not have a reasonable suspicion that the parolee had violated or was planning to violate either the law or the conditions of parole. Subject to the same proviso from Tyrell J. about arbitrary, capricious, or harassing searches, "[w]here the search is for a proper purpose, we hold that, even in the absence of particularized suspicion, a search conducted under the auspices of a properly imposed parole search condition does not intrude on any expectation of privacy 'society is "prepared to recognize as legitimate." ' [Citations.]" (People v. Reyes, supra, at pp. 753-754, 80 Cal.Rptr.2d 734, 968 P.2d 445.) Moreover, in the course of holding that its decision was fully retroactive, the Court noted that "even if suspicionless searches ... remain illegal in the abstract, the evidence they produce need not be excluded from subsequent criminal proceedings." (Id. at p. 755, 80 Cal.Rptr.2d 734, 968 P.2d 445.)

Almost 30 years ago, in In re Martinez (1970) 1 Cal.3d 641, 646, 83 Cal.Rptr. 382, 463 P.2d 734, our Supreme Court held that search of a parolee could not be upheld if the searching officers are unaware that the person is subject to a search condition. Citing this authority, and believing that there is no basis for concluding Grubensky was aware of his parolee status, defendant argues that the officer's entry cannot be justified by the existence of his search condition. The factual premise for this argument is faulty. Sergeant Delgadillo's testimony about his usual practice of discussing a suspect's record and (if appropriate) parole status supports an inference that he did in fact communicate information to this effect about defendant to Grubensky prior to the latter's entry. The trial court, sitting as the trier of fact on defendant's suppression motion, was entitled to draw that inference, which will support an implied finding that Grubensky knew defendant was a parolee. That finding must be upheld here. (E.g., People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278.) ²

Even without such a finding, defendant's argument would fail because its legal premise has been...