Opinion
F075182
09-25-2019
THE PEOPLE, Plaintiff and Respondent, v. CAMERON BOEN, Defendant and Appellant.
Tutti Hacking and Theresa Osterman Stevenson, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Doris A. Calandra, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF165807A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe and Charles R. Brehmer, Judges. Tutti Hacking and Theresa Osterman Stevenson, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Doris A. Calandra, Deputy Attorney General, for Plaintiff and Respondent.
Before Peña, Acting P.J., Snauffer, J. and DeSantos, J.
Judge Lampe denied Boen's motion to suppress; Judge Brehmer sentenced Boen.
-ooOoo-
Appellant Cameron Boen pled no contest to possession of items used in counterfeiting (Pen. Code, § 480, subd. (a)/count 1) and possession of counterfeited items (§ 475, subd. (a)/count 2). He was subsequently sentenced to a one-year term on his conviction in count 1 in the instant case, consecutive to an aggregate term of five years four months imposed in an unrelated case and a concurrent term on his conviction in count 2 in the instant case.
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, Boen contends: (1) the court erred when it denied his motion to suppress; and (2) he was denied the effective assistance of counsel. We affirm.
FACTS
On October 1, 2016, Kern County Sheriff's Deputy Christopher Cooper arrested Boen in Bakersfield at the travel trailer where he lived after searching the trailer and discovering counterfeit $100 bills, paper templates, and instructions for making the bills.
On November 21, 2016, the Kern County District Attorney filed an information that, in addition to the charges to which he pled, charged Boen with possession of unfinished United States currency (§ 475, subd. (b)/count 3), forgery (§ 476/count 4), two prior prison term enhancements (§ 667.5, subd. (b)), and an on-bail enhancement (§ 12022.1).
On December 8, 2016, Boen filed a motion to suppress, alleging his detention, arrest, search of his person, and the search of his residence were unlawful because they were accomplished without a warrant.
On December 21, 2016, the district attorney filed a response, arguing that the motion should be denied because Cooper acted in good faith when he relied on erroneous information provided by a dispatcher.
On January 11, 2017, at a hearing on the motion to suppress, Cooper testified that on October 1, 2016, "at or about 2:37 p.m." he arrived at an address on Byrd Street in Bakersfield to conduct a welfare check. There were several housing structures on the property, including a travel trailer where Boen lived. Cooper went to Boen's trailer and knocked on the front door. After receiving no response, Cooper went around the trailer, knocked on the back door, and Boen answered. Cooper asked Boen if he was on probation or parole and Boen replied that he was not. Boen told Cooper his name and provided his California identification card. "Approximately less than 10 minutes" after he arrived at the trailer, Cooper radioed dispatch for a record's check on Boen and was informed that Boen was on felony probation and searchable. Based on that information, Cooper searched Boen's trailer "at around 2:47 p.m."
The welfare check was based on a call that alleged several squatters, possibly including 10 juveniles, were living in a storage area in unlivable conditions.
Deputies went to all of the dwellings on the property.
Kern County Sheriff's dispatcher Consuelo Lopez testified that on October 1, 2016, at 2:58 p.m., she received from Cooper a request for a record's check on Boen. She conducted the check with a computer aided dispatching system that checked two databases which included local and out-of-county warrants and national warrants. She also received a Department of Justice California Law Enforcement Telecommunications System (CLETS) response, a copy of which was introduced into evidence. Lopez told Cooper that Boen was on probation and searchable because the CLETS document showed Boen had two separate cases, one for a possession of drugs charge (Health & Saf. Code, § 11377), and one for which he was on postrelease community supervision (PRCS) that would expire in 2018. Subsequently, when she received a request from the district attorney for the court case, she discovered Boen was not on probation when Cooper requested the record's check.
On direct examination, Lopez testified that she received a record's check request on Boen at about 2:25 p.m. However, on cross-examination defense counsel refreshed her memory with an event chronology for October 1, 2016, for the address on Byrd Street and she then testified the chronology was created at 2:34 p.m., and that she received the request from Cooper at 2:58 p.m.
Defense counsel argued in support of the motion that the search was unlawful because Boen was not on probation and the "good faith" exception did not apply because Cooper only learned that Boen was allegedly on probation after he searched Boen's trailer.
The district attorney argued the times Lopez testified to were approximations; Cooper learned from dispatch that Boen was allegedly on probation before the search; and although Boen was not on probation, Cooper acted in good faith.
The court rejected Boen's contention that the search occurred prior to Cooper receiving the information that Boen was on probation and denied the motion.
DISCUSSION
Boen's Contentions
Boen contends he was detained by Cooper and the detention was unlawful. He further contends the dispatcher's erroneous response to Cooper did not justify the search of his trailer because she did not provide any information regarding the offense for which Boen was allegedly on probation or whether the alleged probation search terms permitted a search of his residence. Thus, according to Boen, he was provided ineffective assistance of counsel by defense counsel's failure to challenge the validity of the detention and the validity and scope of his alleged probation search terms. Additionally, Boen contends the court erred in denying his suppression motion because, as argued by defense counsel, the record established that the search of his trailer occurred prior to the dispatcher telling Cooper Boen was on probation. We reject these contentions.
Defense Counsel's Failure to Argue Boen was Unlawfully Detained
"[A] defendant seeking relief on the basis of ineffective assistance must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings. [Citations.] ... [I]f the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation ....' " (People v. Cudjo (1993) 6 Cal.4th 585, 623.)
Defense counsel did not argue in the trial court that Cooper detained Boen or that the detention was unreasonable under the Fourteenth Amendment. This resulted in the record being undeveloped regarding the reasons Cooper contacted Boen and the content of their conversation prior to and after Boen provided him with his identification card. Additionally, the record is silent regarding defense counsel's reasons for not arguing that Cooper detained Boen and that the detention was unlawful. It also discloses that defense counsel may have had good reasons for not arguing Boen was unlawfully detained. Cooper contacted Boen pursuant to his community caretaker function. When the detention occurred, the holding of People v. Ray (1999) 21 Cal.4th 464, 467 (Ray) that a nonemergency community caretaking exception may permit a warrantless residential entry was good law. (Id. at p. 468.) In Ray the Supreme Court described an officer's community care function as involving anything from "helping stranded motorists, returning lost children to anxious parents, assisting and protecting citizens in need [and is] 'totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.' " (Id. at p. 467.) Since Ray held that the community caretaking exception could justify a warrantless entry into a residence (Id. at p. 473), defense counsel may reasonably have believed, a fortiori, that it could justify a detention (Cf. People v. Madrid (2008) 168 Cal.App.4th 1050, 1057).
This holding was recently overturned by the Supreme Court in People v. Ovieda 7 Cal.5th 1034.
In Ray, the Supreme Court stated:
"The appropriate standard under the community caretaking exception is one of reasonableness: Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions? ... '[I]n determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or "hunches," but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary.' " (Ray, supra, 21 Cal.4th at pp. 476-477.)
The record does not disclose what specific, articulable facts led Cooper to conclude that as part of discharging his duties as a community caretaker, he needed to contact Boen. There also may have been other facts not disclosed by the record that justified a detention of Boen. Nevertheless, since Cooper was performing a community caretaker function when he contacted Boen, even if he detained Boen, the detention may have been reasonable at the time pursuant to Ray because of Cooper's discharge of his duties as a community caretaker or based on facts not disclosed by the record. Defense counsel may have been aware of additional facts that supported a conclusion that Cooper lawfully detained Boen pursuant to his community caretaker role or that would have justified a detention for some other reason. Thus, Boen has not shown that defense counsel was ineffective by his failure to argue that Cooper detained him and that the detention was constitutionally unreasonable.
Defense Counsel's Failure to Challenge the Validity and Scope of the Alleged Probation Terms
Boen relies on People v. Romeo (2015) 240 Cal.App.4th 931 (Romeo), to contend that the information the dispatcher gave Cooper was insufficient to justify the search of his trailer because he was not on probation and the dispatcher did not tell Cooper that Boen's alleged probation included "Residential Search Terms." Boen further contends that this argument was meritorious and if defense counsel had argued this point in the trial court, the suppression motion would have been granted. Thus, according to Boen, he was denied the effective assistance of counsel because defense counsel failed to challenge the search of his trailer on these grounds. Respondent cites People v. Hill (2004) 118 Cal.App.4th 1344 (Hill) to contend that a mistake as to the type of supervision an offender is subject to does not render a search unlawful if the search was authorized under the offender's supervision search terms. Therefore, according to respondent, since Boen's trailer was searchable because he was on PRCS, the dispatcher's error did not invalidate the search. We agree with respondent.
"When a defendant raises a challenge to the legality of a warrantless search or seizure, the People are obligated to produce proof sufficient to show, by a preponderance of the evidence, that the search fell within one of the recognized exceptions to the warrant requirement. [Citations.] A probation search is one of those exceptions. [Citations.] This is because a 'probationer ... consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term,' except insofar as a search might be 'undertaken for harassment or ... for arbitrary or capricious reasons.' " (Romeo, supra, 240 Cal.App.4th at p. 940.)
"Because the terms of probation define the allowable scope of the search [citation], a searching officer must have 'advance knowledge of the search condition' before conducting a search." (Romeo, supra, 240 Cal.App.4th at pp. 939-940.) Furthermore, "a search pursuant to a probation search clause may not exceed the scope of the particular clause relied upon" (id. at p. 954) and, because probation search terms vary in scope, "mere knowledge that someone is on probation and subject to search, without more, may be insufficient where there is a challenge to the search." (Id. at pp. 951-952.)
In Romeo, officers conducted a warrantless search of a house where two probationers lived and the converted garage where the defendant lived. The officers arrested the defendant after drugs were found in the garage. (Romeo, supra, 240 Cal.App.4th at p. 935.) At the preliminary hearing, where the suppression motion was heard, one of the officers testified that he knew two house occupants were "on probation with [a] search clause" and that he "confirmed" their probation status with a "countywide computer system called ARIES" that he routinely used in the course of his duties. The sole justification for the search was that the house occupants were probationers subject to search. (Romeo, supra, at p. 936.)
The motion to suppress was denied in the trial court. (Romeo, supra, 240 Cal.App.4th at p. 938.) The Romeo court found merit in the defendant's argument that "the prosecution failed to present sufficient evidence of the existence and scope of a probation search clause to justify a warrantless search of the residence[.]" (Id. at p. 939.) In doing so, the court noted that in "each of the four leading California Supreme Court probation search cases, [People v.] Bravo [(1987) 43 Cal.3d 600], [People v.] Woods [(1999) 21 Cal.4th 668], [People v.] Robles [(2000) 23 Cal.4th 789], and [In re] Jaime P. [(2006) 40 Cal.4th 128], there was evidence that the probation conditions at issue expressly permitted or contemplated the warrantless search of a residence." (Romeo, supra, at p. 950.)
The court also explained:
"The omission of any particulars concerning the authorized scope of the search is not a minor detail. Unlike parole searches—where a searching officer's knowledge of a person's parole status alone is enough to justify a search of the parolee's person or any property under his control, including his residence—the permissible scope of a probation search is circumscribed by the terms of the search clause, and the scope may vary. Conditions of probation may be imposed so long as they are 'fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.' (§ 1203.1, subd. (j).) Courts therefore attempt to individualize the terms and conditions of probation to fit the offender. [Citations.] A search condition is not mandated by statute for every probationer, and probation search clauses are not worded uniformly. [Citation.] On occasion, judges may limit the scope of the defendant's consent to searches for particular contraband, such as drugs or stolen
property, or place spatial limits on where searches may take place. Some judges have 'standard' probation terms for particular crimes and particular circumstances (and if so, those terms may be subject to proof by judicial notice, which was not sought here), but practices vary by county all over the state." (Romeo, supra, 240 Cal.App.4th at p. 951.)
Thus, in reversing the trial court's denial of the suppression motion, the court concluded it was impossible on the record before it, to tell what limits may have been imposed on the probation search that occurred there. (Romeo, supra, 240 Cal.App.4th at p. 951)
Although the dispatcher did not tell Cooper that Boen's probation search terms authorized the search of his residence, Boen did not dispute in the trial court, nor does he dispute on appeal, that he was on PRCS.
"PRCS, like parole, involves the post-incarceration supervision of individuals whose crimes were serious enough to result in a prison sentence and thereby implicates important public safety concerns, as well as the state's ' " 'overwhelming' " ' interest in supervising released inmates. [Citation.] It is not necessary for the officer to recite or for the People to prove the precise terms of release, for the search condition is imposed by law, not by consent. As in the case of a parole search, an officer's knowledge that the individual is on PRCS is equivalent to knowledge that he or she is subject to a search condition." (People v. Douglas (2015) 240 Cal.App.4th 855, 865.) This is so because section 3465 requires that, "[e]very person placed on postrelease community supervision, and his or her residence and possessions, shall be subject to search or seizure at any time of the day or night, with or without a warrant, by an agent of the supervising county agency or by a peace officer."
In Hill a police sergeant wanted to search the motel room of a defendant who was suspected of committing a residential burglary. The defendant was on probation, but not parole. However, when the sergeant contacted a dispatcher, the dispatcher erroneously told him the defendant was not on probation. While in the process of obtaining a search warrant, the dispatcher called the sergeant and told him the defendant was on parole. Relying on the erroneous report that the defendant was on parole, the sergeant searched the room and found property taken during the burglary. About two days later, the sergeant found out the defendant was indeed on probation with a search condition. (Hill, supra, 118 Cal.App.4th at pp. 1347-1348.) In upholding the search, the Hill court stated:
"In examining the totality of the circumstances, however, we cannot turn a blind eye to the undisputed fact that defendant was actually on probation and consented to a search condition. But for the dispatcher's misinformation to the contrary, [the sergeant] would have searched defendant's motel room on the basis of that valid search condition." (Hill, supra, 118 Cal.App.4th at p. 1351.)
The dispatcher here made a mistake similar to that of the dispatcher in Hill when she told Cooper that Boen was on probation with search conditions. Like the defendant in Hill, Boen was on a type of supervision (PRCS) that allowed him and his residence to be searched. Further, but for the dispatcher's error in not telling Cooper that Boen and his residence were searchable pursuant to his release on PRCS, Cooper would lawfully have searched Boen's trailer pursuant to Boen's PRCS status.
Boen contends Hill is distinguishable because in that case, the officer mistakenly believed the defendant was on parole which would have allowed a search of the defendant's residence pursuant to the defendant's parole status, whereas here, Cooper erroneously believed Boen was on a status that was not shown to authorize a search of his residence. We disagree.
The salient circumstances in Hill were that the officer acted in good faith in searching the defendant's motel room and that the room was searchable because the defendant was on searchable probation. Boen was searchable because he was on PRCS. Further, although Cooper erroneously concluded the information the dispatcher provided allowed him to search the trailer, nothing in the record indicates that he reached this conclusion in bad faith. And as in Hill, "But for the dispatcher's misinformation to the contrary, [the officer] would have searched defendant's motel room on the basis of that valid search condition." (Hill, supra, 118 Cal.App.4th at p. 1351.) Pursuant to Hill and the record before it, the trial court should have rejected a challenge to the search of Boen's trailer based on the validity and scope of his alleged probation search conditions. Thus, we also reject Boen's contention that defense counsel provided ineffective representation because she failed to challenge the search of his trailer on this basis.
Substantial Evidence Supports the Court's Ruling that the Search Occurred After the Call to Dispatch
Boen contends that although the district attorney asked Cooper whether he arrived at Boen's trailer "at or about 2:37," there was no reason for Cooper to use such a precise time unless that was the time Cooper indicated in his report. This according to Boen, makes Cooper's estimate the most accurate of the evidence before the court in establishing when Cooper arrived at Boen's trailer and it establishes he arrived there at precisely 2:37 p.m. He also contends that Cooper's estimate that his contact with Boen lasted less than 10 minutes before he searched Boen's trailer appears reasonable because it would have taken less than 10 minutes for Cooper to question Boen about his identification and probation/parole status. Boen further contends that because the dispatcher's testimony that Cooper called her at 2:58 p.m. was based on the event chronology defense submitted into evidence, Cooper's testimony that he called the dispatcher at 2:47 p.m. was not credible. Thus, according to Boen, because there was no credible evidence that Cooper called the dispatcher at 2:47 p.m., before searching Boen's trailer (within 10 minutes of arriving there at 2:37 p.m.), the search was unlawful. (People v. Robles (2000) 23 Cal.4th 789, 797 [probation search is unlawful if officer conducting search is unaware of probation condition prior to conducting search].) We disagree.
" ' An appellate court's review of a trial court's ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2)
selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] "The [trial] court's resolution of each of these inquiries is, of course, subject to appellate review." [Citations.] [¶] The court's resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, ... is also subject to independent review.' " (People v. Alvarez (1996) 14 Cal.4th 155, 182.)
"In applying [the substantial evidence test], we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [factfinder] could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the [disputed] finding." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) " 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' " (People v. Zamudio, supra, 43 Cal.4th at p. 357.)
It is clear from the record that in denying Boen's suppression motion the trial court believed Cooper's testimony that he searched Boen's trailer after being informed Boen was on searchable probation and that it resolved the conflict between Cooper's testimony and the dispatcher's testimony adversely to Boen, as was the court's province to do.
Moreover, Boen overstates the significance of the circumstances he contends undermine Cooper's testimony. Cooper's testimony that he arrived at the compound at 2:37 p.m. was elicited by a leading question by the district attorney, but more importantly, it was only an estimate as was his testimony that he called dispatch at around 2:47 p.m., approximately less than 10 minutes after arriving at Boen's trailer. Additionally, since no evidence was presented at the suppression hearing that Cooper wrote a report, there is no merit to Boen's claim that Cooper's estimate of arriving at the compound at 2:37 p.m. was accurate because that is what he wrote in his report. Further, although Boen's trailer was the first residence Cooper went to, the record is unclear whether once Cooper arrived at the compound, he did anything else before knocking on Boen's trailer or how long he knocked before Boen finally answered. In any case, "unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support [the court's ruling]." (People v. Young (2005) 34 Cal.4th 1149, 1181.) Since Cooper's testimony is neither, we reject Boen's contention that the court erred when it denied his suppression motion.
DISPOSITION
The judgment is affirmed.