People v. Willis, F026866

• Decision Date: 20 April 1999
• Docket Number: No. F026866,F026866
• Citation: 71 Cal.App.4th 530,83 Cal.Rptr.2d 895
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 71 Cal.App.4th 530 71 Cal.App.4th 530, 99 Cal. Daily Op. Serv. 2850, 1999 Daily Journal D.A.R. 3671 The PEOPLE, Plaintiff and Respondent, v. Gary Wayne WILLIS, Defendant and Appellant.

Page 895

83 Cal.Rptr.2d 895

Previously published at 71 Cal.App.4th 530

71 Cal.App.4th 530, 99 Cal. Daily Op. Serv. 2850,

1999 Daily Journal D.A.R. 3671

The PEOPLE, Plaintiff and Respondent, v. Gary Wayne WILLIS, Defendant and Appellant.

No. F026866.

Court of Appeal, Fifth District, California.

April 20, 1999.

Rehearing Denied May 13, 1999.

Review Granted Aug. 11, 1999.

Certified for Partial Publication. ^*

APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr. and Kenneth C. Twisselman II, Judges. ^**

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Stan Cross and Patrick J. Whalen, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THAXTER, J.

A jury convicted appellant Gary Wayne Willis of possession of methamphetamine for sale (count 1, Health & Saf.Code, § 11378) and possession of narcotics paraphernalia, a misdemeanor (count 3, Health & Saf.Code, § 11364). In a bifurcated proceeding, appellant waived a jury and the court found true allegations that appellant had suffered two prior serious or violent felony convictions within the meaning of PENAL CODE SECTION 667¹, subdivisions (c)-(j), and section 1170.12, subdivisions (a)-(e), and had served two prior prison terms within the meaning of section 667.5, subdivision (b).

Appellant was sentenced to a total term of 26 years to life on count 1 and to a concurrent six-month term in county jail on count 3. In his timely appeal he contends the court erred by denying his motion to suppress evidence and by admitting certain evidence at trial. He also argues the verdict is not supported by sufficient evidence establishing that drugs seized in his motel room belonged to him. Finally, appellant claims the court made a faulty finding and considered improper evidence concerning one of his prior felony convictions. Finding no error, we will affirm.

FACTS

On March 27, 1996, after receiving information there was excessive phone and foot traffic into and out of room 221, Bakersfield Police Officers Mullins and Silvius, Kern County Sheriff's Deputy Hood, and State Parole Agent Mora arrived at the E-Z 8 Motel in Bakersfied to conduct a narcotics investigation. Using motel records, Officer Mullins verified the number of phone calls to and from the room and determined appellant was the room's registered occupant. After checking current departmental records, Officer Mullins discovered appellant was a registered sex offender and a transferred parolee. He then confirmed appellant's parole status by showing the department's parole list to Agent Mora. She agreed the list showed appellant was on active parole.

The officers knocked on the door of room 221. Appellant yelled through the closed door, "Who is it?" Deputy Hood answered, "It's Bill." Appellant responded, "Fuck you, Bill who." Deputy Hood announced, "Police, open the door, please." After a short delay, appellant opened the door wide and stood in the doorway allowing Officer Mullins to view a syringe laying on a nearby dresser, a knife sheath on appellant's belt, and a woman occupant. Possession of both the syringe and the knife were violations of appellant's parole conditions. Based on his previous investigation of appellant's history, the information received from the motel clerk, and his own observations of the knife and syringe, Officer Mullins concluded appellant was engaging in narcotics activity and the officers entered the room telling appellant they were there to conduct a parole search. As they did so appellant informed the officers he had been discharged from parole. He showed Mullins a card confirming his discharged status. Officer Mullins did not initially believe appellant and asked Agent Mora to confirm appellant's status via telephone. Mullins testified appellant was not free to leave at this point.

While waiting for the confirmation, Mullins asked appellant to step outside. As Mullins talked to appellant outside the room, Officer Silvius stayed inside with the female occupant, Kathleen Moye. Silvius observed that Moye was under the influence of a narcotic. When questioned, Moye admitted to Silvius she had used methamphetamine and said there was a "speed pipe" in the briefcase located in the room. When Silvius relayed this information to Mullins, Mullins told appellant they had enough information to obtain a warrant to search the room, whether or not appellant was subject to a parole search. After asking and being told that if narcotics were found he would go to jail, appellant consented to a search of the room. Officer Silvius then asked Moye if they could search the briefcase and she said yes. Silvius asked appellant what was in the briefcase and appellant responded, "There's dope in there, what do you think?" The officers searched the briefcase after breaking the combination lock. Inside they found narcotics, syringes, scales, and pay-and-owe sheets. In addition, Officer Mullins found a motel registration slip in appellant's name. A search of appellant netted $879 cash, mostly $20 bills. Appellant told the officers the methamphetamine was for personal use by himself and Moye, not for sale.

Agent Mora discovered thereafter appellant had been discharged from parole and no longer was subject to a search condition.

In defense, appellant testified the officers rushed him after he opened the door announcing a parole search. When told appellant was no longer on parole, Mullins refused to believe him saying the discharge card could be fake. Appellant denied giving consent to enter the room or to open the briefcase.

TESTIMONY OF CRIMINOLOGIST

At trial, over defense objection, criminologist Dan DeFraga testified, in lieu of his colleague David Diosi, that several items confiscated in the search of the motel room and briefcase had been presented to the criminology lab for analysis and the items were determined to contain narcotics. He testified as to the weight and nature of the narcotics found. Diosi, the criminologist who conducted the analysis in this case, was on vacation and unavailable to testify at trial. DeFraga, a senior criminologist with the Kern County Regional Lab, testified as to the method of analysis standard at the lab and, using Diosi's notes, testified as to the result of the analysis performed by Diosi.

PROVING THE PRIORS

At the court trial on the issue of priors, the prosecutor submitted a section 969b "priors packet" which included the court transcript of appellant's guilty plea to the 1983 prior conviction and the probation report filed in support of the sentence imposed. The abstract filed on August 15, 1983, shows a conviction for "PC 245(a) ADW." The probation report filed in connection with this conviction includes a report of statements made by appellant that he personally used a firearm in the commission of the assault on his brother, Scott Willis.

DISCUSSION

I. The Motion to Suppress

Appellant contends the search of his motel room and the briefcase found inside violated his Fourth Amendment protection against unreasonable searches and seizures. He argues he opened his door as a result of the exercise of police authority which cannot be supported by the erroneous parole information, the officers' warrantless entry was unauthorized, and the ensuing consent, search, and seizure were tainted and presumptively unreasonable. He further contends the warrantless search cannot be saved by the good faith exception announced in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (Leon ).

Respondent counters that because the officers initiated the search in good faith reliance upon information supplied by the parole agent, the evidence thus obtained should not be excluded. Further, respondent argues that both appellant and his companion gave express, unconditional, and voluntary consent to the searches.

An appellate court's review of a trial court's ruling on a motion to suppress is governed by well-settled principles. The appellate court must defer to the trial court's factual findings, expressed or implied, when supported by substantial evidence. The appellate court must then independently determine whether the facts as found by the trial court establish the search was reasonable under Fourth Amendment standards. (People v. Alvarez (1996) 14 Cal.4th 155, 182, 58 Cal.Rptr.2d 385, 926 P.2d 365; People v. Glaser (1995) 11 Cal.4th 354, 362, 45 Cal.Rptr.2d 425, 902 P.2d 729; People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961.)

It is well established the search of a residence, including an occupied motel room, requires a warrant. A warrantless search of such a place is presumed to be constitutionally unreasonable unless it falls into one of the specifically established and well delineated exceptions to the warrant requirement. (Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576; People v. Bravo (1987) 43 Cal.3d 600, 609, 238 Cal.Rptr. 282, 738 P.2d 336; Pate v. Municipal Court (1970) 11 Cal.App.3d 721, 724, 89 Cal.Rptr. 893.) A probation or parole search is a recognized exception to the warrant requirement so long as the search is not arbitrary, capricious, or harassing. (People v. Reyes (1998) 19 Cal.4th 743, 748-754, 80 Cal.Rptr.2d 734, 968 P.2d 445.) When, however, such a search is later found to be invalid because the probation or parole condition had expired at the time of the search, a Fourth Amendment violation is shown. (People v. Downing (1995) 33 Cal.App.4th 1641, 1651, 40 Cal.Rptr.2d 176.)

In this case it is undisputed appellant was not on parole at the time the officers entered the motel room in order to conduct a "parole search." The authorization they initially believed they had to enter the room without a warrant was nonexistent at the time of the warrantless search.

A. Good...