Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA350051. Craig E. Veals, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant Terron Williams entered a no contest plea after the trial court denied his motion to suppress evidence. He appeals from the ensuing judgment, contending that the trial court erred in finding that he lacked standing to challenge the reasonableness of the search leading to the charges against him. We reject defendant’s contention, and affirm the judgment.
BACKGROUND
1. Procedural Background
Defendant was charged by felony information with possession for sale of cocaine base in violation of Health and Safety Code section 11351.5 (count 3), and possession of marijuana for sale in violation of section 11359 (count 4). The information further alleged as to count 3 for purposes of section 11370.2, subdivision (a), that defendant had been previously convicted of a violation of section 11351.5.
All further statutory references are to the Health and Safety Code, unless otherwise indicated.
Prior to trial, defendant brought a motion to suppress evidence and quash search warrant pursuant to Penal Code section 1538.5. After hearing the testimony of the prosecution witnesses and the argument of counsel, the trial court found that defendant had not met his burden to establish an expectation of privacy in the premises searched and denied the motion on September 2, 2009. The following month, defendant brought a motion to reconsider which the trial court also denied.
The prosecution amended the information by interlineation, adding count 5, possession of cocaine, in violation of section 11350, subdivision (a). Pursuant to a plea agreement, defendant pled no contest to the newly added count, and counts 3 and 4 were dismissed. Upon finding defendant eligible, the trial court ordered probation with drug treatment conditions under Proposition 36, with a review in six months. (Pen. Code, § 1210.1; see generally Gardner v. Schwarzenegger (2009) 178 Cal.App.4th 1366, 1369-1371.)
Respondent’s brief states that a prison sentence of three years was imposed. However, the trial court could not have imposed both Proposition 36 probation and a term of incarceration, and it did not do so. (Pen. Code, § 2010, subd. (a).) The court merely warned defendant he could be sentenced to three years in prison if he did not complete the treatment program. The court noted that the time defendant had already served in local custody would be available as a credit in the event of a future sentence.
2. Relevant Preliminary Hearing Testimony
Defendant did not challenge the search of the house or his person at the time of the preliminary hearing. We summarize only that portion of the testimony relevant to defendant’s arguments on appeal.
Los Angeles Police Department (LAPD) Officer Juan Barillas testified that he was part of a narcotics investigating unit and took part in the surveillance and search of a residential duplex at 1426 West 62nd Street (hereinafter the house, or the 62nd Street house). After the police had received a complaint that defendant was selling narcotics there, Officer Barillas and other officers began monitoring the house in September 2008. On December 2, 2008, the officers searched the house after they saw defendant leave. They found marijuana, cocaine, money, scales, and other items indicating a narcotics operation. When defendant was arrested the same day, he had large amounts of cash -- three bindles in his pockets and some in his wallet.
The officers did not find any identification, photographs, clothing, or other personal items that would indicate that defendant lived in the house. Officer Barillas testified that he believed that defendant lived there, and that he based his belief on his observation of defendant approximately five to seven times entering and leaving the house between September and December 2008. Defendant would sometimes remain inside for hours at a time. When defendant was arrested, a different address appeared on the booking sheet, but Officer Barillas had the booking officer cover it and insert the address of the 62nd Street house.
3. Motion to Suppress Evidence
LAPD Officer Michael Estrada testified both as an expert in narcotic identification, possession, and sales, and as one of the investigating officers in this case. While assigned to a narcotic enforcement detail, he took part in an investigation into defendant’s activities in May 2008, and again on December 2, 2008, the day of defendant’s arrest on the current charges. Both investigations involved surveillance of the 62nd Street house.
In May 2008, Officer Estrada observed several narcotic users knock at the side door of the house, engage in a short conversation with an unknown person, and leave after approximately one minute. He made no arrests, and moved on to larger investigations. Officer Estrada continued to patrol the neighborhood, and in the months that followed, he saw defendant go in and out of the house occasionally. He also recognized defendant’s vehicle, which Officer Estrada occasionally saw parked a few houses away from the house.
In the early afternoon of December 2, 2008, Officer Estrada and his partner went to the house to assist other narcotics officers who were monitoring the location. They saw defendant leave the house about 20 minutes after they joined the surveillance. After several people came to the house, engaged in what appeared to be drug buys and then left, the officers approached the house where they detected a strong odor of marijuana emanating from within. Officer Estrada was in plain clothes, but wearing a tactical vest clearly marked “Police” in bold letters. The officers could see into the interior of the house. They saw a person inside who started to answer the door when officers knocked, but then saw the police and ran away from the door. One of the officers said, “Police” and then, “He’s running, ” and the officers entered the house. Once inside, they saw in plain view, marijuana in an amount too large for personal use, as well as packaging materials and a large amount of money in small denominations. The person inside, a Mr. Martinez, was arrested and officers checked the remaining rooms for other suspects. After obtaining a warrant, officers conducted a search of the premises.
In the meantime, LAPD Officer Robert Canizales, who was unaware of the narcotics team surveillance, was in the neighborhood looking for defendant as a suspect in an assault with a deadly weapon. Officer Canizales found defendant’s vehicle, and was writing a citation for defendant’s failure to have a front license plate, when defendant approached him. Officer Canizales detained defendant, patted him down, and found more than $2,000 in cash on him. Officer Canizales quickly learned that defendant had already posted bail on the assault charge, but continued to detain him after receiving word from one of the narcotics team officers investigating the house that defendant was a suspect in narcotics activity.
Sharon Williams (Ms. Williams) testified that her elderly father, Elgin R. Johnson, owned the 62nd Street house and that she managed it for him. In December 2008, she had leased the house to Eugene Thompson and since then had received rental payments from him or his nephew, Elton Stubblefield. Ms. Williams produced her receipt books showing those payments. She had never seen defendant or a Mr. Martinez before, and had never received rent from them, met them on the property, or discussed any repairs to the house with them. She stopped receiving rental payments in October 2008, and had spoken to Eugene Thompson about payment.
Defendant presented no evidence. Without conceding the issue of defendant’s expectation of privacy in the house, defense counsel submitted the matter.
DISCUSSION
Defendant contends that the trial court erred in finding that he lacked “standing” to contest the search of the house, and in denying his motion to suppress evidence and his motion for reconsideration.
In reviewing the trial court’s ruling on a motion to suppress evidence, “[w]e defer to the trial court’s factual findings, express or implied, where supported by substantial evidence.” (People v. Glaser (1995) 11 Cal.4th 354, 362.) We apply an independent review to pure questions of law and to mixed questions of law and fact. (People v. Ayala (2000) 23 Cal.4th 225, 255.)
‘“Standing”’ is shorthand for the expectation of privacy protected by the Fourth Amendment to the United States Constitution. (United States v. Payner (1980) 447 U.S. 727, 731; People v. Ayala, supra, 23 Cal.4th at p. 254, fn. 3.) Fourth Amendment rights are personal and may be asserted only by those who have a legitimate expectation of privacy in the place searched or the property seized. (Rakas v. Illinois (1978) 439 U.S. 128, 133.) While the prosecution must establish the reasonableness of a warrantless search, a defendant challenging a search or seizure bears the burden of establishing that he had a personal and reasonable expectation of privacy in the place searched or property seized. (Rawlings v. Kentucky (1980) 448 U.S. 98, 104; People v. Jenkins (2000) 22 Cal.4th 900, 972.)
“There is no set formula for determining whether a person has a reasonable expectation of privacy in the place searched, but the totality of the circumstances are considered. [Citation.]” (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1132.) Factors indicating an expectation of privacy include “whether a defendant asserted a property or possessory interest in the area searched or the property seized [citation], whether a defendant has a right to exclude others from access to the searched premises [citation], whether a defendant is legitimately on the premises [citation], whether a defendant has entered into an arrangement indicating ‘joint control and supervision of the place searched’ [citation], whether a defendant had a subjective expectation that the item seized or the place searched would remain free from governmental intrusion, and whether a defendant took normal precautions to maintain his or her privacy [citation].” (People v. Madrid (1992) 7 Cal.App.4th 1888, 1896.)
Defendant presented no evidence in support of his motion. He relied on the prosecution evidence and submitted the question of his expectation of privacy without argument. Defendant’s burden can be met with prosecution evidence. (People v. Dees (1990) 221 Cal.App.3d 588, 595 (Dees).) In this case, however, the prosecution’s evidence established that defendant had no ownership or possessory interest in the house. There was no evidence that defendant had a right to exclude others from access to the property, that he exercised any control over the premises, that he had a subjective expectation of privacy in any part of the house, or that he took any precautions to maintain his privacy. In sum, defendant failed to establish any possessory interest or expectation of privacy, and thus failed to meet his burden of proof. (See People v. Jenkins, supra, 22 Cal.4th at p. 972; Dees, supra, at p. 595.)
Nevertheless, relying on Dees, supra, 221 Cal.App.3d 588, and United States v. Issacs (9th Cir.1983) 708 F.2d 1365 (Issacs), defendant contends that the prosecution was estopped from asserting that he failed to prove an expectation of privacy in the house.
In Issacs, the prosecution used the defendant’s disclaimer of ownership or possession of certain journals to defeat his claim of expectation of privacy in the journals, but then used his possession of the journals as evidence of guilt. (Issacs, supra, 708 F.2d at pp. 1366-1367.) The court held that the prosecution would not be permitted to take such contradictory positions. (Id. at p. 1368.)
Similarly, in Dees, the prosecution used, for purposes of guilt, defendant’s admission to police officers that he owned the car in which contraband was found, but also used defendant’s later denial of ownership to defeat his claim of expectation of privacy in the car. (Dees, supra, 221 Cal.App.3d at pp. 592, 596-597.) The appellate court noted that “[t]he People did not introduce registration, a bill of sale, or other indicia of ownership at the preliminary hearing. Their unequivocal position was that the car and its contents belonged to appellant because he said so.” (Id. at p. 598.) Relying on Issacs, the court concluded that the prosecution conceded, in effect, defendant’s connection to the car and his expectation of privacy in it, and was thus estopped to argue that the defendant did not carry his burden. (Dees, at p. 598.)
Here, as respondent points out, the prosecution did not argue that defendant lived in the house or that he had any other possessory interest in it. The trial court made clear that it did not hold defendant to answer at the preliminary hearing based upon evidence of any such possessory interest, but rather, because the suspicious activity surrounding the house showed a narcotic enterprise within, and defendant’s frequent visits connected him to that enterprise. Thus, when the prosecution argued against the motion to suppress evidence that defendant had no expectation of privacy in the house, it did not take a contradictory position.
Defendant points to the preliminary hearing testimony of Officer Barillas, who changed the address on defendant’s booking sheet to the 62nd Street address, because he believed that defendant lived there. Defendant claims that the prosecution presented this testimony to support its position that defendant lived in the house. In fact, Officer Barillas’s testimony on this subject was elicited in cross-examination, and it was clear that he stated his own belief, not the prosecution’s position.
Nor was Officer Barillas’s belief supported by the facts as he also testified that he did not find any identification, photographs, clothing, or other personal items indicating that defendant lived in the house, and that on the occasions he saw defendant go into the house, he also saw him leave at night.
We conclude that there was no basis for estoppel, as the prosecution did not take contradictory positions. Defendant was required to establish an expectation of privacy in the house or the items seized, and he failed. The trial court thus did not err in denying defendant’s motion to suppress or his motion for reconsideration of that ruling.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.