The People v. Stewart

• Decision Date: 17 November 2010
• Docket Number: A125744,No. VCR193252,VCR193252
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ERIC LYNN STEWART, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,

v.ERIC LYNN STEWART, Defendant and Appellant.

A125744

No. VCR193252

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Filed 11/17/10

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

I.INTRODUCTION

Appellant Eric Stewart appeals from his conviction following a jury trial for transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)). He contends the court erred in denying his pretrial motion brought under Penal Code section 1538.5 (section 1538.5) to suppress evidence seized during a traffic stop. He also contends he was denied the right to the effective assistance of counsel under the California and federal Constitutions. Finally, he claims the trial court misinstructed the jury on reasonable doubt during its deliberations, which resulted in a lowering of the prosecution's burden of proof, in violation of the Fifth and Sixth Amendments of the federal Constitution. We disagree that any reversible error occurred and affirm.

II.PROCEDURAL HISTORY

A criminal complaint was filed by the Solano County District Attorney's Office charging appellant with one count of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), and one count of possession of marijuana for sale (Health & Saf. Code, § 11359). The complaint also alleged that appellant had suffered two prior convictions that resulted in prior prison terms, within the meaning of Penal Code section 667.5, subdivision (b). A preliminary hearing was held on December 14, 2007, which resulted in a finding of probable cause as to count one only. Appellant was ordered to be bound over for trial on that count, and the second count alleging possession for sale was discharged.

An information thereafter was filed charging appellant with one count of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)). The information also alleged that appellant had suffered two prior convictions which resulted in prior prison terms, within the meaning of Penal Code section 667.5, subdivision (b). Appellant pleaded not guilty to the charge and to the prior conviction allegations.

A section 1538.5 motion was filed on April 16, 2008, and was heard and denied on June 8, 2008.

The case proceeded to jury trial on June 8, 2009. The following day, the jury entered its verdict convicting appellant as charged. A jury trial was waived as to the allegation of prior convictions. The trial court then found that appellant had suffered one prior conviction for which he served a term in state prison, within the meaning of Penal Code section 667.5, subdivision (b).

Sentencing was held on July 23, 2009, at which time the court imposed a three-year state prison term and ordered it suspended. Appellant was placed on probation for three years, with conditions, including that he serve 12 months in county jail, less custody credits. This appeal followed.

III.ANALYSIS

A. Standard of Review on a Motion to Suppress

Appellant's challenge to the trial court's ruling denying his motion to suppress presents a mixed question of law and fact that is subject to a two-tier standard of review. "The standard of appellate review of a trial court's ruling on a motion to suppress is wellestablished. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.)

B. Denial of Motion to Suppress Evidence

Marijuana was found in appellant's car when he was stopped by Solano County Deputy Sheriff Michael Waller on September 6, 2007.¹ It was this evidence that led to his conviction at trial.

As he did in the trial court, appellant claims that the search conducted during that traffic stop violated his Fourth Amendment right. Appellant volunteered to the deputy sheriff that he was on parole, and the deputy confirmed that appellant was subject to a search clause as a condition of his parole. However, appellant contends the parole search in this instance was "arbitrary, capricious, and harassing," and therefore was illegal under People v. Reyes (1998) 19 Cal.4th 743 (Reyes).

Evidence presented in connection with appellant's motion to suppress included the following:

On June 8, 2009, Deputy Waller testified that on September 16, [sic] 2007, he was on duty with his canine partner, King, "purposefully [sic] looking for Vehicle Code violations." At that time, he saw appellant's vehicle, a white Toyota with an inoperable rear license plate light. After Deputy Waller stopped the vehicle, he approached it and spoke to appellant, who volunteered that he was on parole. After confirming with dispatch that appellant was on parole, Waller had appellant exit the vehicle and advised him that he would be searching him and his vehicle. Deputy Waller informed appellant that he would be conducting the vehicle search with his narcotic-detecting dog, as it was his "standard practice." At the hearing, the officer stated that this search was a "parolesearch." After his dog alerted, the officer manually searched the vehicle and located four plastic bags of marijuana contained within another plastic bag, which he seized as evidence.

After hearing argument from counsel and reviewing the evidence as it related to the stop, the court denied the motion to suppress evidence, holding the search was a legal parole search. The court was not persuaded by appellant's claim that the search came after an unreasonably prolonged detention, and instead found that the stop was justified by Deputy Waller's good faith belief that a Vehicle Code violation occurred in his presence, and his intention to issue a citation for said violation.

C. Legal Discussion

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated...." (U.S. Const., 4th Amend.) This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. (See Mapp v. Ohio (1961) 367 U.S. 643, 655 [federal exclusionary rule applicable to the states].) A similar guarantee against unreasonable government searches is set forth in the state Constitution (Cal. Const., art. I, § 13) but, since voter approval of Proposition 8 in June 1982, state and federal claims relating to exclusion of evidence on grounds of unreasonable search and seizure are measured by the same standard. (In re Tyrell J. (1994) 8 Cal.4th 68, 76, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 132; In re Lance W. (1985) 37 Cal.3d 873, 886-887.) "Our state Constitution thus forbids the courts to order the exclusion of evidence at trial as a remedy for an unreasonable search and seizure unless that remedy is required by the federal Constitution as interpreted by the United States Supreme Court." (In re Tyrell J., supra, at p. 76.)

Searches and seizures are presumed, as a general rule, to be unreasonable in the absence of sufficient individualized suspicion of wrongdoing to support a finding of probable cause. (Chandler v. Miller (1997) 520 U.S. 305, 308.) An exception to the probable cause requirement for a search is a suspicionless search of a parolee, which doesnot violate the Constitution. (Samson v. California (2006) 547 U.S. 843, 846 (Samson)) The ability to conduct a suspicionless search of a parolee is codified in Penal Code section 3067, which states "[a]ny inmate who is eligible for release on parole pursuant to this chapter shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause." (§ 3067, subd. (a).) "Where the search is for a proper purpose... 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.]" (Reyes, supra, 19 Cal.4th at p. 754.)

Appellant first argues that the introduction of the dog into his vehicle as part of the parole search constituted an unreasonable search. However, there was no evidence presented at the suppression hearing that the dog was introduced into the vehicle. Appellant's briefs refer to evidence presented at the preliminary hearing and at trial, to that effect. "Defendant may not attempt to make up for what was lacking in his motion by relying on matters subsequent to its denial. A reviewing court 'focuses on the ruling itself and the record on which it was made. It does not look to subsequent matters....' [Citations.]" (People v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

Even if the record on the suppression motion supported appellant's contention that Deputy Waller used his dog to conduct the parole search into the interior of appellant's vehicle, that fact does not render the search unreasonable. Using a drug-sniffing dog to assist in a search does not make an otherwise lawful search unlawful. (People v. Bell (1996) 43 Cal.App.4th 754, 770-771.) As pointed out in Bell, once the defendant gave his consent to search, the fact that the officer used a drug-sniffing dog to assist in that search did not vitiate the consent. The defendant's initial consent relinquished any reasonable expectation of privacy the defendant otherwise had with regard to the area searched by the dog. (Id. at p....