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People v. Brim

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 26, 2012
F061305 (Cal. Ct. App. Jan. 26, 2012)

Opinion

F061305 Super. Ct. No. MF9202B

01-26-2012

THE PEOPLE, Plaintiff and Respondent, v. SIMONE WILLIAMS BRIM, Defendant and Appellant.

Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION


THE COURT

Before Cornell, Acting P.J., Gomes, J., and Kane, J.

APPEAL from a judgment of the Superior Court of Kern County. Raymonda Burnham-Marquez and Jerold L. Turner, Judges.

Judge Burnham-Marquez presided over appellant's change of plea hearing. Judge Turner presided over appellant's motion to suppress.

Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

After the court denied her motion to suppress, appellant, Simone Williams Brim, pled no contest to misdemeanor receiving stolen property (Pen. Code, § 496, subd. (a))in exchange for a grant of three years' summary probation.

All further statutory references are to the Penal Code unless otherwise indicated.

On appeal, Brim contends the court abused its discretion when it denied her motion to suppress. We affirm.

FACTS

In June 2010, Xochilt Soliz was a parolee who lived with Brim in California City and worked as a cashier at a Home Depot Store in Tehachapi. On June 28, 2010, Ruben Banuelos, a loss prevention officer for Home Depot, reported to police that he had been alerted by the store's computer system of some possible thefts. According to Banuelos, Soliz was ringing up merchandise, deleting the entry, and then allowing a customer to walk out of the store without paying for the merchandise. On June 13, 2010, Soliz rang up a room air conditioner worth $300 for Brim, deleted it from the receipt, and then allowed Brim to walk out of the store with the air conditioner. Similar scams occurred on June 14, 2010, when $118 in merchandise was taken, and on June 23, 2010, when $230 in merchandise was taken.

On June 28, 2010, Tehachapi Police Officer Amelia Perman and other officers conducted a parole search at the house where Brim and Soliz lived and found the stolen air conditioner installed on a window and other items stolen from Home Depot in an attached garage.

On September 7, 2010, the district attorney filed an information charging Brim with three counts each of second degree burglary (counts 1, 5, & 9/§ 460, subd. (b)), embezzlement (counts 2, 6, and 10/§ 508), and felony receiving stolen property (counts 3, 7, & 11/§ 496, subd. (a)).

In addition to charging the same counts against Soliz, the information also charged Soliz with three counts of petty theft with a prior (counts 4, 8, & 12/§ 666) and two prior prison term enhancements (§ 667.5, subd. (b)).

On September 29, 2010, defense counsel filed a motion to suppress.

On October 13, 2010, the court conducted a hearing on Brim's suppression motion. At this hearing, Officer Perman testified that on June 28, 2010, at approximately 9:11 a.m., she spoke with Banuelos at Home Depot and he advised her that Soliz was ringing items up, deleting them from the receipt, and allowing them to be taken out of the store. Banuelos also told Perman that numerous items had been removed from the store in this manner, including a room air conditioner that was taken on June 13, 2010.

Officer Perman conducted a records check and determined that Soliz was on parole and lived with Brim in a three-bedroom home on Sally Street in California City that was owned by Brim. Officer Perman then went to that address with Parole Agent Flory and other officers and found no one there. After they were unable to enter the house through the front door, the officers walked through the yard to the back of the house. There, Officer Perman saw an air-conditioning unit installed on a bedroom window. Although Banuelos had told Officer Perman the manufacturer, model and size of the air conditioner taken from Home Depot, Officer Perman did not recall how she identified the unit as the one taken from the store.

After entering the house through an open window, the officers entered the attached garage and found property belonging to Home Depot, including two rolls of weed blocker, plumbing connectors, and packaging for a room air conditioner. The officers also searched the three bedrooms in the house, but there was no testimony that they took anything from inside Brim's bedroom.

Agent Flory told Officer Perman which bedroom belonged to Soliz.

The prosecutor argued in opposition to the suppression motion that the seizure of the property stolen from Home Depot was lawful because the items in the garage were in a common area, the air-conditioning unit was in plain view, and if anything, only the officers' observations inside Brim's bedroom should have been suppressed.

Although the prosecutor referred to observations in Soliz's bedroom, it is clear that he meant observations in Brim's bedroom.
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Defense counsel argued, in pertinent part, that Soliz's parole status did not justify the entry into Brim's house because there was an issue whether Soliz actually lived there, or into Brim's bedroom because Officer Perman knew which room belonged to Soliz.

On October 21, 2010, the court issued a ruling denying the motion.

On October 22, 2010, after the court granted the prosecutor's motion to reduce count 3 to a misdemeanor, Brim entered her no contest plea to that count in exchange for a dismissal of the remaining counts against her and a grant of three years' summary probation.

DISCUSSION

Brim contends the officers exceeded the scope of a lawful parole search involving Soliz when they entered and searched Brim's bedroom. Thus, according to Brim, the court abused its discretion when it denied her motion to suppress. We disagree.

"'The standard of appellate review of a trial court's ruling on a motion to suppress is well established. 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.'" (People v. Maury (2003) 30 Cal.4th 342, 384.)
"Under the 'plain view' exception to the Fourth Amendment warrant requirement, a law enforcement officer may seize incriminating evidence or contraband which he discovers in a place where he has a right to be. [Citation.]" (People v. Breault (1990) 223 Cal.App.3d 125, 131-132.)
"In the context of the plain view doctrine, probable cause [to seize contraband or stolen property in plain view] is a flexible, commonsense
standard, which requires only that the facts available to the officer would warrant a person of reasonable caution in believing that the item may be contraband or stolen property or evidence of a crime. No showing is required that such a belief is correct or more likely true than false. 'A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. [Citation.]' [Citations.] The determination whether there is probable cause to believe property in plain view has been stolen depends on the totality of the circumstances known to the officer which reasonably bear on the question; the officer's determination is not limited to an examination of the property itself. [Citations.]" (People v. Stokes (1990) 224 Cal.App.3d 715, 719-720.)

Here, Officer Perman and the other officers had the legal right to enter Brim's house to conduct a parole search because parolee Soliz lived there with Brim. (People v. Middleton (2005) 131 Cal.App.4th 732, 738-739 [every parolee is subject to a warrantless search condition that allows police officers to search the parolee's residence without a warrant].) Therefore, Officer Perman and the other officers were lawfully in the yard looking for a way to get into the house when Officer Perman saw the stolen air conditioner in plain view, installed on the window of Brim's bedroom. Further, Officer Perman knew that approximately two weeks earlier Soliz had allowed someone to take a room air-conditioning unit from Home Depot without paying for it and she saw one installed on Brim's bedroom window that matched the make, model, and/or size of the one stolen from Home Depot. These circumstances provided Officer Perman with probable cause to believe that the unit on Brim's window was the stolen unit. Moreover, since the air conditioner was installed on the window, the court could reasonably infer that the officers did not actually seize it until after they had discovered the other stolen merchandize and the packaging for an air conditioner in the garage. These circumstances provided the officers additional probable cause to believe that the air conditioner installed on Brim's bedroom window was the unit stolen from Home Depot and to seize it.

Brim cites several cases for the proposition that Soliz's parole status did not justify the entry into Brim's bedroom to search it. (See e.g., People v. Woods (1999) 21 Cal.4th 668, 679.) However, these cases are inapposite because as explained above, the air conditioner was not seized from inside Brim's bedroom and the discovery and seizure of the stolen air-conditioning unit did not occur as a result of a search of her bedroom. Further, insofar as the record shows, the officers did not obtain any evidence from Brim's bedroom. Accordingly, we conclude that the court did not abuse its discretion when it denied Brim's motion to suppress.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Brim

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 26, 2012
F061305 (Cal. Ct. App. Jan. 26, 2012)
Case details for

People v. Brim

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SIMONE WILLIAMS BRIM, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 26, 2012

Citations

F061305 (Cal. Ct. App. Jan. 26, 2012)