Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06SF1142 Carla M. Singer and Richard F. Toohey, Judges. Affirmed.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Eugene Baird of second degree burglary (Pen. Code, § 459; all references to this code unless noted) and grand theft (§ 487, subd. (a)). The trial court found he had suffered a prior felony conviction qualifying as a strike under the Three Strikes law (§ 667, subds. (d) & (e)(1); § 1170.12, subds. (b) & (c)(1)), and had served three prison terms (§ 667.5, subd. (b)).
Defendant argues the trial court erred when it failed to conduct an evidentiary hearing on his motion to suppress evidence (§ 1538.5). He also argues the reasonable doubt instruction (CALCRIM No. 220) is constitutionally flawed. As explained below, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 10:30 a.m. on November 9, 2006, Mladen Radojicic, an off-duty Orange County Deputy Sheriff, and his wife were in the parking lot of the Mission Viejo Nordstrom store. They spotted a man carrying numerous handbags with security tags still attached. The man entered the driver’s side of a newer gold Cadillac illegally parked in a red zone near the front of the store. Radojicic’s wife recorded the man’s physical description (black, mid-30’s, 5’6” tall, 140 lbs., short, brown hair, wearing glasses and a Laker’s jersey) and license plate No. 4JSF302.
Radojicic alerted a Nordstrom loss-prevention agent, who confirmed eight or nine expensive Dooney and Bourke handbags had been stolen. Two days later, a man of similar description entered the same store and perused the handbag section. He looked around but did not take anything and left the store. He entered on the passenger side of a gold Cadillac, and the car departed.
A deputy sheriff investigating the case learned the license plate number recorded by Radojicic’s wife was unassigned. The deputy ran the license No. 4JSE302 and records showed it belonged to a 2000 model gold Cadillac registered to defendant. About a week after the theft, Radojicic selected defendant from a photographic lineup. A week after Radojicic identified defendant and on November 21, a deputy sheriff tracked defendant to a homeless shelter in downtown Los Angeles. The deputy searched defendant’s cubicle-room and found a Laker’s jersey and several letters addressed to defendant. Defendant was arrested on November 22 when he visited his parole officer. The Radojicics identified defendant at trial. Their initial description of the thief differed in some respects from defendant’s physical characteristics (age 46, 5’9” tall, black with gray hair, 185 lbs.).
Defendant, representing himself, called his aunts to testify that defendant brought tamales to his aunt’s sister’s house at approximately 10:30 a.m. on the day of the theft. He arrived in a gold Cadillac and his son Tony, a gang member, accompanied him. Defendant gave Tony the keys and told him to move the car. Tony took off and defendant stayed with the ladies until after lunch. Defendant’s insurance agent testified defendant reported his Cadillac stolen on December 1, 2006. Defendant’s parole officer summoned defendant to his office on November 22, the day after the search at the shelter. Defendant was driving the Cadillac. After the officer arrested him, defendant asked the officer to give Tony his car keys.
In rebuttal, the prosecution introduced evidence defendant had committed a similar crime, entering a Macy’s store on April 14, 2004, and stealing at least six Dooney and Bourke handbags.
The jury convicted defendant of commercial burglary and grand theft. The trial court subsequently imposed a seven-year prison sentence.
II
DISCUSSION
A. Failure to Hold Evidentiary Hearing on Motion to Suppress
Defendant represented himself in the trial court. He filed numerous pretrial motions, many boilerplate and of dubious application to his case. On January 12, 2007, he captioned one handwritten motion “Notice of Motion to Quash Warrant and to Suppress Evidence (Pen[.] C[ode,] § 1538.5).” The notice provided defendant would “request that testimony be received . . . at this hearing” and that the motion was “made on the grounds that the search and seizure was unreasonable in violation of” the Fourth and Fourteenth Amendments. Defendant listed as grounds for the motion that the warrant was insufficient on its face because officers and the magistrate failed to sign an affidavit, the magistrate issued the warrant without probable cause, the property seized was not described in the warrant, and the method of execution of the warrant violated federal or state law.
In a section titled “Additional Requirements for Penal Code Section 1538.5 Motion Pursuant to OC Superior Court Rule 800,” defendant noted he had been arrested by his parole officer and transported to Orange County jail. He asserted he “was never show[]ed/served with any valid or sufficient search/arrest warrant. The DA inform defense that he was without ‘the’ search warrant also.”
Defendant stated he would “seek to suppress the allege search/arrest warrant because not only is the warrant not valid but it didn’t contain a sufficient affidavit describing the specific probable cause for the arrest and search of his living quarters. A[n] alleged Laker jersey, or any type of clothing wasn’t specified in the search warrant coupled with the fact a magistrate signature was not on the warrant.” Defendant also complained the warrant had not been produced during discovery, and investigators failed to show an arrest warrant to the director of the homeless shelter. Defendant argued the Orange County Deputy Sheriff was out of his jurisdiction in Los Angeles County without a “signed, affidavit, stamped, specific search warrant.”
At the trial setting hearing on January 12, defendant requested a hearing date for his suppression motion and for “both deputies, the investigating officer and the alleged eyewitness, both deputy sheriffs, to be here.” The judge confirmed with the prosecutor there was no search warrant in the case but “even though there was not a warrant, [defendant] intended that it be understood as a 1538.5.” The court set the motions for hearing on January 26, and trial on February 13.
On January 24, defendant filed a “Supplemental Notice of Motion to Suppress Evidence (Pen[.] C[ode,] § 1538.5).” He moved for an order suppressing “all alleged observations” by Radojicic made “after and before” his arrest, and all items listed on an allegedly attached property report (none was attached) “seized before defendant’s arrest.” He asserted the motion was made on the ground the search and seizure was unreasonable in violation of the Fourth and Fourteenth Amendments and violated his reasonable expectation of privacy, “[m]ore specifically, the sheriff departments action was without a warrant and lacked sufficient probable cause to justify an arrest.”
In points and authorities, defendant argued the Orange County deputies exceeded their jurisdiction by transferring him from jail in Los Angeles County without a search warrant. He also complained the deputies searched his residence without a warrant and they had no “certificate of probable cause for the search or to hold defendant to answer on any charges.” He listed “the alleged Lakers jersey allegedly found at defendant[’s] residence.”
At the hearing on January 26, the prosecutor moved to strike the supplemental motion because it was untimely filed and defendant could not file more than one suppression motion. The court asked whether the prosecutor thought defendant was attempting to litigate the seizure of the jersey, and the prosecutor replied that if he was, it was undisputed defendant was on parole and the jersey was seized pursuant to a parole search. He also noted the search occurred at a homeless shelter and the officer was directed to the area where defendant was staying by the person operating the shelter.
Before the court ruled, defendant clarified what he sought to suppress. Defendant explained “what I’m suppressing is actually my arrest.” Defendant argued it was illegal for Orange County officers to arrest him in Los Angeles without a search warrant because they had no “jurisdiction.” Defendant also asserted he had been arrested by his parole officer and acknowledged that was valid “under parole conditions.” He argued it was his transfer from Los Angeles to Orange County that was illegal.
The court declined to strike the motions, but denied the motion to quash because there was no search warrant and denied defendant’s supplemental motion because “defendant’s argument suggests that he does not really have any viable grounds on which to proceed pursuant to . . . section 1538.5.”
During trial, defendant attempted to explore the legality of the search of his room and his subsequent arrest while cross-examining a deputy sheriff, but the trial court sustained relevancy objections to his inquiry. Defendant subsequently objected to admission of the Lakers jersey found in his room, arguing it was the product of an illegal search and seizure because deputies did not have a search warrant and the parole officer was not present during the search.
Defendant contends the trial court erred in failing to conduct an evidentiary hearing on his suppression motion, arguing the court and prosecution were aware he was attempting to suppress the Lakers jersey seized from the homeless shelter. He agrees he may have confused the court and prosecutor by interchanging “‘arrest warrant’ and search warrant,” but argues he specifically requested an evidentiary hearing on his motion, and the court therefore should have required the prosecution to “put on evidence to support its position, and demonstrate that this search and seizure was justified as a parole search.” He contends that because the court did not conduct an evidentiary hearing, the court did not make the factual determinations necessary to uphold the search. He complains the officer searching his room did so without the parole agent’s permission and therefore the search violated his Fourth Amendment rights. Finally, defendant argues the failure to conduct an evidentiary hearing was “structural error” not requiring a showing of prejudice. Alternatively, if not structural error, defendant argues reversal is required under Chapman v. California (1967) 386 U.S. 18 because the prosecution cannot show the error did not contribute to the verdict.
Section 1538.5 provides: “(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: [¶] (A) The search or seizure without a warrant was unreasonable. [¶] (B) The search or seizure with a warrant was unreasonable because any of the following apply: [¶] (i) The warrant is insufficient on its face. [¶] (ii) The property or evidence obtained is not that described in the warrant. [¶] (iii) There was not probable cause for the issuance of the warrant. [¶] (iv) The method of execution of the warrant violated federal or state constitutional standards. [¶] (v) There was any other violation of federal or state constitutional standards.”
The section also provides, “A motion pursuant to paragraph (1) shall be made in writing and accompanied by a memorandum of points and authorities and proof of service. The memorandum shall list the specific items of property or evidence sought to be returned or suppressed and shall set forth the factual basis and the legal authorities that demonstrate why the motion should be granted.” (Italics added.) (§ 1538.5, subd. (a)(2).)
Section 1538.5, subdivision (c)(1), provides, “Whenever a search or seizure motion is made in the superior court as provided in this section, the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion.” (Italics added.)
In People v. Williams (1999) 20 Cal.4th 119 (Williams), the California Supreme Court held that a defendant seeking to suppress evidence must set forth the factual and legal bases for the motion, but satisfies that obligation, at least in the first instance, with a prima facie showing the police acted without a warrant. The prosecution then has the burden of proving some justification for the warrant less search or seizure, after which the defendant can respond by pointing out any inadequacies in that justification. (Id. at p. 136.) The degree of specificity required for adequate notice by defendant depends on the legal issue raised. A defendant who does not give the prosecution sufficient notice of these inadequacies cannot raise the issue on appeal. (Ibid.) Section 1538.5 ordinarily contemplates an adversarial hearing where the parties present their evidence and the court sits as the finder of fact. (People v. Johnson (2006) 38 Cal.4th 717, 720; People v. Lawler (1973) 9 Cal.3d 156, 160.)
In Williams, the defendant argued officers lacked probable cause to stop his truck, and they had no policy governing inventory searches. The prosecution justified the warrant less search of defendant’s truck by asserting the search was incident to defendant’s lawful arrest and police were justified in conducting an inventory of the truck. Defendant’s arguments focused on the lack of probable cause for the traffic stop, but his trial court brief expressly asserted the police had no inventory search policy or procedures, and cited relevant authority for their necessity. The court held this adequately put the prosecution on notice it had to prove a policy specifically governing the opening of closed containers during an inventory search and it was not significant under the circumstances that defendant did not discuss the issue during argument. (Williams, supra, 20 Cal.4th at pp. 136-138.)
The court did not err in failing to conduct an evidentiary hearing. As noted above, defendant must set forth the factual basis and the legal authorities that demonstrate why the court should grant his motion. The judge need not receive evidence where there is no issue of fact necessary to determine the motion. (People v. Davis (1989) 215 Cal.App.3d 1348, 1350, disagreed with on other grounds in Williams, supra, 20 Cal.4th at pp. 132-133; see also Super. Ct. Orange County, Local Rules, rule 800(E)(4) [“If the pleadings (moving, responding and reply papers) raise no disputed issues of fact, the court will determine said motion on the pleadings and the argument of counsel”].)
Defendant’s moving papers were confusing. He did make veiled references to suppressing the Lakers jersey based on the search of his residence. But at the January 26 hearing on the motion, defendant clarified that what he was “suppressing is actually my arrest.” He believed it was illegal for Orange County officers to arrest him in Los Angeles without a search warrant because they had no “jurisdiction.” He did not deny he was on parole, admitted he had been arrested by his parole officer, and acknowledged the arrest was valid “under parole conditions.” Finally, he argued his arrest or transfer by Orange County officers from Los Angeles to Orange County was illegal.
Given defendant’s clarification of his argument at the January 26 hearing, we cannot fault the trial judge for failing to conduct an evidentiary hearing concerning an alleged parole search of his residence. Defendant’s claim concerning a second arrest or transfer from Los Angeles to Orange County jail presented a different legal question, and one defendant did not support by any legal authority in his papers or during argument. Also, defendant did not object at the hearing that the court was denying him an opportunity to present witnesses concerning whether he was subject to a search condition on parole, or whether the searching officer was aware of his parole status. Also, the prosecutor stated he did not propose to offer any evidence derived from the allegedly illegal arrest or transfer to Orange County.
If the court erred in failing to recognize defendant’s complaint however, the error in failing to conduct an evidentiary hearing was not structural, i.e., akin to the total deprivation of the right to counsel at trial, trial before a biased judge, unlawful exclusion of members of the defendant’s race from a grand jury, denial of the right of self-representation at trial, or denial of a public trial. At worst, assuming the court would have granted the suppression motion after an evidentiary hearing, the error resulted in the admission of inadmissible evidence at trial. The erroneous admission of evidence does not affect the framework within which the trial proceeds; it is simply an error in the trial process itself. It is not impossible to quantify the impact of the evidence on the outcome of the proceedings. (See Arizona v. Fulminante (1991) 499 U.S. 279 [admission of involuntary confession trial error subject to Chapman standard of prejudice].)
Applying Chapman here, the Nordstrom purse thief decamped in defendant’s car. Two witnesses identified defendant as the perpetrator. The witnesses’ description of the thief recorded at the time of the theft was not so different from defendant’s actual characteristics to call the identifications into question. Defendant had been convicted of an identical crime two years earlier. Given overwhelming evidence of defendant’s guilt, we are persuaded admission of the Lakers jersey and identifying documents did not contribute to the guilty verdict.
B. Reasonable Doubt Instruction (CALCRIM No. 220)
The trial court instructed the jury with CALCRIM No. 220. Defendant argues the instruction is constitutionally flawed because it “fundamentally changes the factors a jury may rely upon in determining whether a reasonable doubt exists as to a defendant’s guilt of the charged offense by limiting the jury’s consideration to evidence received during the trial. . . . [J]urors may be misled by the faulty instruction into believing they are prohibited from considering the absence of evidence as raising a reasonable doubt.” (Italics omitted.)
“The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” (CALCRIM No. 220.)
We are not persuaded. The instruction, read as a whole, informed the jury the prosecution had the burden of proving defendant’s guilt beyond a reasonable doubt, and the jury therefore must determine whether the prosecution had met their burden of proving all the facts essential to a finding of guilt. Thus, a lack of evidence on any essential element required a not guilty verdict.
Every case that has addressed the identical argument has concluded CALCRIM No. 220 does not violate due process. (People v. Campos (2007) 156 Cal.App.4th 1228, 1236; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500 (Westbrooks).) These cases recognize CALCRIM No. 220 does not violate due process when it instructs the jury it must consider only the evidence presented at trial in determining whether the prosecution has met its burden of proof. The instruction merely admonishes the jury to base its verdict on only the evidence produced at trial. Of course, if the jury concludes that evidence is lacking then the jury must return a not guilty verdict.
The foregoing appellate decisions have rejected analogies to People v. McCullough (1979) 100 Cal.App.3d 169. In McCullough, the appellate court concluded the trial court misled the jury by telling it reasonable doubt must arise from the evidence presented at trial because reasonable doubt may arise from the lack of evidence. “Unlike in McCullough, the trial court in this case did not tell the jury that reasonable doubt must arise from the evidence presented at trial, and, given the court’s other instructions, it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating that the jury was precluded from considering any perceived lack of evidence in determining [defendant’s] guilt.” (Westbrooks, supra, 151 Cal.App.4th at p. 1510.)
We agree and conclude the instruction did not prohibit the jury from considering the lack of evidence in determining whether there is a reasonable doubt as to a defendant’s guilt. There was no constitutional violation.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.