People v. Zichwic

• Decision Date: 21 December 2001
• Docket Number: No. H021621.,H021621.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel George ZICHWIC, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

114 Cal.Rptr.2d 733

94 Cal.App.4th 944

The PEOPLE, Plaintiff and Respondent, v. Daniel George ZICHWIC, Defendant and Appellant.

No. H021621.

Court of Appeal, Sixth District.

December 21, 2001.

Review Denied March 27, 2002.^*

Andrew Parnes, Attorney for Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Morris Lenk, Deputy Attorney General, Attorneys for Respondent.

BAMATTRE-MANOUKIAN, Acting P.J.

Following the denial of his suppression motion, defendant Daniel George Zichwic pled no contest to a charge of second degree burglary of a Pacific Gas & Electric Company (PG&E) utility van which occurred on November 14, 1998. (Pen. Code, §§ 459-460.)¹ Other charges of petty theft of tools with a specified prior (§ 666) and possession of stolen tools (§ 496) were dismissed. Defendant also admitted the following criminal history. Defendant, born in April 1964, was convicted of one residential burglary in 1984, two residential burglaries in 1985, and two residential burglaries in 1992.

After denying defendant's motion to strike his five prior strike convictions of residential burglary, the trial court sentenced defendant to an indeterminate term of life in prison with a minimum term of 25 years under the Three Strikes law. (§ 1170.12, subd. (c)(2).)

On appeal defendant contends that the trial court erred in denying his suppression motion and that the trial court misunderstood its discretion to strike his strikes. For the reasons stated below, we will affirm the judgment.

1. SUPPRESSION MOTION

On appeal defendant contends that the trial court erred in denying his motion to suppress evidence of his location obtained from installation of an electronic tracking device on the undercarriage of his truck.

A. The suppression hearing

The motion to suppress was based on evidence presented at a special suppression hearing, which we summarize.

On July 24, 1996, defendant was released from prison and placed on parole for three years, subject to the following condition among others. "You and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer."

While defendant was on parole, there was a construction site burglary near his Mountain View residence. Mountain View Police Detective Jeffrey Sato was involved in the investigation of this burglary. Defendant was identified as leaving the scene of the crime. Sato was aware that defendant had prior convictions of "thefts and drug related offenses." In 1997 defendant was arrested and prosecuted for this burglary. Ultimately a jury acquitted him. Subsequent to this acquittal defendant was released from custody on September 17, 1998.

After defendant's release from custody, Detective Sato noticed an increase in Mountain View construction site burglaries from two to five a month. Bolt cutters were taken in one theft and bolt cutters were used in later thefts. Six burglaries occurred within a mile of defendant's residence in Mountain View. Three occurred on the same street. Detective Sato acknowledged on cross-examination that one burglary on defendant's street occurred while defendant was still in custody. Thefts from PG & E yards occurred on October 27, 29, the weekend of October 30, and November 2, 1998. According to Detective Sato, the average burglar would not know what to do with specialized construction tools.

Mountain View police officers suspected defendant's involvement in the commercial burglaries. Detective Visalden asked for and obtained authorization from defendant's parole officer to conduct electronic surveillance of defendant. Detective Visalden did not testify at the suppression hearing and defendant's parole officer could not recall when he gave this authorization.

Around 11:00 p.m. on November 13, 1998, Detective Visalden and two other officers in plain clothes and an unmarked car went to defendant's residence at 1958 Rock Street in Mountain View. Los Altos Police Officer Mark Laranjo watched as Detective Visalden installed an electronic monitoring device underneath defendant's truck.

From photographs of defendant's residence that were introduced into evidence and Officer Laranjo's testimony, it appears that defendant lived in the second residential unit on the left-hand side of a multi-unit single story complex. There is a fence around the back yards of the residential units, but not the front yards. All the units are accessed by a wide driveway leading to a private street from the public street. The private street is posted near the entrance to afford "tenant parking only." To the left of defendant's residence is a covered carport area. To the left of defendant's carport is a neighbor's carport. Both carports share one driveway. Most of the back of defendant's carport has been converted into an enclosed storage shed with a door. One photo shows that the remaining covered area is about large enough to shelter a motor scooter that was parked there. From the photos it is apparent that a pickup truck could not fit entirely under the covered area. In front of defendant's residence is a lawn about the length of a pickup truck. The front door faces the private street. A sidewalk extends parallel to the front of the house from the front door to the carport's driveway. To reach defendant's front door a person must either cross the lawn from the private street or walk up the driveway and the sidewalk.

On the night of November 13, 1998, defendant's pickup was parked in the driveway to the left of his residence. Officer Laranjo could not recall how close to the covered area the truck was parked. Detective Visalden walked up to the truck, got underneath it, and apparently attached the electronic monitoring device to the undercarriage. Officer Laranjo did not see exactly where Detective Visalden put the device. He did not see Detective Visalden open a door.

Around 12:30 a.m. on November 14, 1998, both the tracking device and Detective Visalden, who was conducting visual surveillance, reported that defendant's truck was leaving his residence. Detective Visalden followed defendant's truck until he lost sight of it. The monitoring device allowed the police to track the truck to the front of a PG & E yard at 714 Yuba Drive in Mountain View. Officers who responded to the scene heard banging noises in the PG & E yard as they stood at the side of the road. They saw defendant run along the fence to his truck and throw something into the back of the truck. Defendant was arrested at 1:57 a.m. outside his truck. Tools with PG & E serial numbers were found in the bed of his truck.

B. Trial court ruling

After the suppression hearing, the court denied defendant's motion to suppress, explaining: "I think given the fact Mr. Zichwic knew he was on parole, he was subject to search, I don't think he enjoyed the same privileges against reasonable influence [sic] into his life that a citizen would...." The beeper did not obtain private information, just defendant's movements. "I think the officers through their training and their research and their records that they had I think their interpretation[s] of Mr. Zichwic as a possible suspect were well drawn, were logical, reasonable, were not reaching or [were] more than simply a hunch...."

C. Validity of the ruling

"In reviewing the trial court's denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial court's application of the law to the facts." (People v. Jenkins (2000) 22 Cal.4th 900, 969, 95 Cal.Rptr.2d 377, 997 P.2d 1044.) In conducting our independent review, we are concerned with the correctness of the ruling, not the trial court's reasoning. (People v. Clark (1993) 5 Cal.4th 950, 993, fn. 19, 22 Cal.Rptr.2d 689, 857 P.2d 1099; People v. Ellis (1993) 14 Cal.App.4th 1198, 1201, 18 Cal.Rptr.2d 284.)

When the police attached the electronic monitor to the undercarriage of defendant's truck, defendant was on parole and subject to a standard search condition which authorized a warrantless search of defendant, his residence, and his property. Defendant contends that this police action amounted to a search that was arbitrary and capricious in violation of People v. Reyes (1998) 19 Cal.4th 743, 80 Cal. Rptr.2d 734, 968 P.2d 445 (Reyes). Defendant alternatively contends that Reyes "is not controlling because it does not comport with federal constitutional precedent."

In Reyes, the California Supreme Court overruled People v. Burgener (1986) 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251 and held "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."'" (Reyes, supra, 19 Cal.4th at p. 754, 80 Cal.Rptr.2d 734, 968 P.2d 445.) The court adopted the reasoning it employed in In re Tyrell J. (1994) 8 Cal.4th 68, 32 Cal.Rptr.2d 33, 876 P.2d 519, which involved juvenile probation conditions. Those who commit crimes demonstrate a need for governmental supervision and thereby forfeit some freedom. (Reyes, supra, 19 Cal.4th at p. 752, 80 Cal.Rptr.2d 734, 968 P.2d 445.) A warrantless search condition is a reasonable term of parole supervision, as it promotes the parolee's rehabilitation and protects the public against criminal behavior. (Ibid.) The imposition of a search condition diminishes a parolee's reasonable expectation of privacy. (Id. at pp. 752-753, 80 Cal.Rptr.2d 734, 968 P.2d 445.) "The threat of a suspicionless search is fully consistent with the deterrent purposes of the search condition." (Id. at p. 752, ...