People v. Mosbrucker

• Decision Date: 28 November 2012
• Docket Number: H037710
• Parties: THE PEOPLE, Plaintiff and Respondent, v. LAURA LOUISE MOSBRUCKER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. LAURA LOUISE MOSBRUCKER, Defendant and Appellant.

H037710

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Dated: November 28, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County

Super. Ct. No. C1088131)

While conducting a parole search of defendant Laura Louise Mosbrucker's apartment in Milpitas, law enforcement officers found methamphetamine, scales, a handgun, and ammunition. Defendant moved to suppress the evidence, arguing that the search was unlawful because she was not on parole and the parolee whose status the officers relied on in conducting the parole search did not reside in her apartment.

After the court denied her motion to suppress, defendant entered into a negotiated plea agreement whereby she pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1) and possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1); count 2). As part of the plea agreement, the district attorney moved to dismiss counts 3 and 4 of the information, which charged defendant with possession of ammunition by a felon (former Pen. Code, § 12316, subd. (b); count 3) and misdemeanor being under the influence of a controlled substance(Health & Saf. Code, § 11550, subd. (a); count 4). At sentencing, the court dismissed counts 3 and 4, suspended imposition of sentence on counts 1 and 2, and placed defendant on probation for three years, subject to several conditions, including that she serve one year in the county jail. Months later, after she was found to have violated the conditions of her probation, defendant was sentenced to the lower term (one year four months) on count 1, plus the lower term (one year four months) concurrent on count 2. In light of her custody credits, the sentence was deemed served and defendant was released from custody.

On appeal, defendant contends that her trial counsel was ineffective because he failed to properly argue and litigate the motion to suppress. She also challenges the validity of the search and argues that the court applied the wrong legal standard when it decided the motion. We conclude that the court applied the correct legal standard, that the search was valid, and that trial counsel was not ineffective. We will therefore affirm the judgment.

Defendant has also filed a petition for writ of habeas corpus, which we ordered considered with the appeal, in which she claims ineffective assistance of counsel related to the motion to suppress. We have disposed of the petition by separate order filed this date. (Cal. Rules of Court, rule 8.387(b)(2)(B).)

FACTS¹

Prosecution's Case

On September 23, 2010, at about 7:00 a.m., Milpitas Police Sergeant Maharaj told Milpitas Police Detective Fox that he had received an anonymous tip that one to two kilos of methamphetamine was being stored at a residence on Old Calaveras Road in the Milpitas foothills. Sergeant Maharaj gave Detective Fox a copy of an Internet map withan aerial photo he received from the tipster, showing the residence, along with defendant's name and the name "Skip," and told the detective that a gray truck and an older green car would be parked at the residence.

Detective Fox did a computer check on defendant and learned that she had prior felony convictions, including possession of narcotics (Health & Saf. Code, § 11377, subd. (a)), and that she used the alias "Skip." Detective Fox drove along Old Calaveras Road and found a residence that looked like the one in the aerial photo, with two vehicles that fit Sergeant Manharaj's description parked outside, on an 11-acre farm located on Old Calaveras Road. Further investigation revealed that there were three dwelling units on the property, that two parolees lived there, and that Nathan Jackson was one of the parolees and the landlord.

Detective Fox spoke with Jackson by telephone. Jackson told him that defendant had lived in apartment B for about a month, that defendant's boyfriend was in jail, and that "Paul" (the boyfriend's brother) was staying there. Jackson described Paul as a white male in his thirties. Jackson had spoken to Paul and learned that Paul was on parole, had cancer, and was staying with defendant while defendant's boyfriend was in jail. Jackson said he believed Paul lived there and he had seen Paul taking care of two large dogs that were in the apartment.

A few weeks before this investigation, Detective Fox received information from an informant that a person named Paul, who lived on Calaveras Road and had cancer, was engaged in fraudulent activity, and that his residence contained items used to create counterfeit money.

Detective Fox started to surveil the property. After about 30 minutes, around 10:24 a.m., he saw the truck that had been parked there driving on Calaveras Road and noticed that it did not have a front license plate in violation of Vehicle Code section 5200, subdivision (a). Defendant was driving the truck; Detective Fox recognized her from booking photos he reviewed earlier that day. Since he was in an unmarked car,he called for a marked police unit to conduct a traffic stop for the license plate violation. A Milpitas police officer pulled the truck over in a parking lot. Detective Fox contacted defendant and noticed that she had objective symptoms of being under the influence of a stimulant. (At the hearing, defendant stipulated that she demonstrated the effects of being under the influence of methamphetamine.)

Paul Franks² was a passenger in the truck at the time of the traffic stop. One of the officers who responded to the traffic stop told Detective Fox that Franks was on parole. A Milpitas police dispatcher confirmed that Franks was on parole for a forgery conviction. After Detective Fox learned the passenger's name, he recalled the information he had received about a suspect named Paul who was engaged in fraud. He also recalled that he arrested Franks in 2007 on fraud, narcotics, and stolen vehicle charges.

Detective Fox asked defendant if Franks lived with her. She said Franks stayed with her a couple of times a week but did not live with her. She said he arrived at 5:00 a.m. that morning and she was taking him to see his parole officer. Detective Fox asked defendant whether she had used narcotics and she said she had not used methamphetamine in quite some time. But her physical symptoms contradicted what she was saying. Detective Fox administered field sobriety tests, which defendant failed. Detective Fox arrested defendant for being under the influence of a narcotic.

Detective Fox spoke with Franks at the scene of the traffic stop. Franks said he was on his way to see his parole officer and to pick up medication from his doctor. Franks displayed objective symptoms of being under the influence of a stimulant; he was unable to stand still, spoke rapidly, and was sweating. The detective asked Frankswhether he had recently used narcotics and Franks said he had used methamphetamine about two days before. Detective Fox also asked Franks where he was living. Initially, Franks said he lived with his mother in San Jose, at the address on file with his parole officer. Later, Franks said he was staying with defendant two to three times a week, he had slept there before, he stayed there to take care of his brother's dogs, and he kept medication at defendant's apartment and a toothbrush in the bathroom. Detective Fox testified that based on his training and experience, parolees often have an address of record but take up residence at another location that is not reported to the parole department. Detective Fox believed Franks was staying at defendant's residence. Detective Fox asked Franks if he had anything illegal on his person. Franks said he had "weed" in his pocket. The detective searched Franks and found a marijuana cigarette in his pants pocket.

Detective Fox contacted Franks's parole officer, Camilo Monsanto, who confirmed that Franks was supposed to report to the parole office that day. Monsanto told the detective that Franks had reported that he was living with his mother in San Jose. Detective Fox told Monsanto that he had information that Franks was staying at another residence in Milpitas and that he planned to conduct a parole search of that residence. Monsanto did not object to the search.

Detective Fox requested the assistance of a canine officer from the Fremont Police Department. Fremont Police Officer Snelson and his dog Cris, a certified narcotics detection canine, came to the scene of the traffic stop to help search defendant's truck. Before they searched, Detective Fox obtained defendant's permission to search the truck. The officers found counterfeit money (fifteen $20 bills) concealed in the lining of the front passenger seat. Officer Snelson and Cris searched the truck and did not find any drugs. Detective Fox arrested Franks for being in possession of marijuana and counterfeit money. Defendant and Franks were transported to the Milpitas police station.

The officers next went to defendant's apartment to conduct a parole search pursuant to Franks's parole search condition. Detective Fox testified that at the time of the search, he had reason to believe Franks was residing in defendant's apartment based on (1) Franks's statement that he was staying there two or three times a week; (2) Franks's statement that he kept a toothbrush and medication there; (3) the landlord's statement that he had seen Franks at the property; (4) the information the landlord provided about Franks (he had cancer, he was on parole); and (5) the information that someone named "Paul" who lived on Calaveras Road was involved in fraudulent...