Opinion
H044691
03-17-2022
THE PEOPLE, Plaintiff and Respondent, v. JOVAN HARRIS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1503565)
WILSON, J.
After defendant Jovan Harris pleaded no contest to one count of attempted second degree robbery (Pen. Code, §§ 664, 211, 212.5) and admitted various sentencing enhancements, the trial court sentenced him to 25 years in state prison and dismissed a charge of attempted first degree murder (§§ 664, 187) in accordance with his plea agreement.
Unspecified statutory references are to the Penal Code.
On appeal, Harris argues the trial court erred in denying his motion to quash a search warrant and denying his motion to suppress jail calls. In addition, Harris argues that, due to ameliorative changes in various sentencing laws, he is entitled to a remand for resentencing.
Due to a change in the law following the close of briefing, we requested supplemental briefing from the parties as to the effect of Assembly Bill No. 1869 (2019-2020 Reg. Sess.) on the appeal, specifically its repeal of former Government Code section 29550 et seq., as well as its enactment of Government Code section 6111.
As detailed below, we reject Harris's substantive claims in their entirety, but conclude that he is entitled to remand for the trial court to exercise its discretion under the newly-amended sentencing laws and for vacatur of the unpaid portions of the now- repealed fee.
We previously ordered Harris's habeas corpus petition considered with this appeal; we address that petition by separate order filed this day.
I. Factual and Procedural Background
A. Procedure
In October 2015, the Santa Clara County District Attorney charged Harris by information with one count of attempted first degree murder (§§ 664, 187, 189; count 1) and one count of attempted second degree robbery (§§ 664, 211, 212.5, subd. (c); count 2). The information further alleged that Harris personally used a firearm (former § 12022.53, subd. (b)), causing great bodily injury (§ 12022.7, subd. (a)) in committing counts 1 and 2, and that Harris had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)).
On January 4, 2017, pursuant to a plea agreement, Harris pleaded no contest to attempted second degree robbery, admitted the allegations that he used a firearm causing great bodily injury in committing the offense, and admitted the prior strike conviction, the prior serious felony conviction, and an amended allegation that he had served a prior prison term (§ 667.5, subd. (b)). The trial court granted the prosecution's motion to dismiss the charge of attempted first degree murder pursuant to section 1385.
On March 20, 2017, the court sentenced Harris to the agreed-upon term of 25 years in state prison, consisting of the aggravated term of three years (doubled to six years by the prior strike) on the aggravated second degree robbery, plus the following sentence enhancements: (1) 10 years for personal use of a firearm; (2) five years for the prior serious felony conviction; (3) three years for inflicting great bodily injury; and (4) one year for the prior prison sentence. The trial court further ordered Harris to pay various fines, fees, and assessments, including a $129.75 criminal justice administration fee payable to the City of San Jose (former Gov. Code, §§ 29550, 29550.1, 29550.2).
Harris timely appealed.
Because Harris pleaded no contest, we derive the relevant facts from the transcript of the preliminary examination.
On December 19, 2014, Salvador Rivas received a message through Facebook responding to his advertisement on that site of marijuana for sale. Rivas replied and, after an exchange of messages, arranged to meet with the buyer early that morning near a liquor store to sell him a quarter pound of marijuana for $400. When Rivas arrived at the location, he saw a "6 foot [tall] black male . . . walking back and forth" in front of the store. Rivas identified Harris in court as this person.
Rivas could not recall the exact time, but testified that he received the first message "around 2:00 to 4:00, 5:00 in the morning." When he arrived at the store, it was still dark, no shops were open, and the streetlights were on.
Rivas pulled over to the curb, messaged the buyer and told him he was parked nearby in a black SUV. Rivas noticed a second person standing on the corner about 20 yards from where he pulled over. The first man walked over and tried to get in the passenger side of Rivas' vehicle, but Rivas had locked the doors. The passenger window was down about one-fourth of the way and Rivas heard the man ask," 'Don't you trust me?'" Rivas handed the man a sample of the marijuana he brought, and told the man to come to the driver's side window which was about three-fourths open. When the man arrived at the driver's side window, he asked if Rivas had brought a quarter pound as agreed, and Rivas asked to see the man's money. The man became angry that Rivas would not turn the ignition off so "we could weigh the marijuana."
Based on a change in the man's "voice" and "tone," Rivas suspected that he did not intend to buy the marijuana. The man suddenly reached into the window and grabbed the Ziploc bag of marijuana Rivas was holding in his right hand. When Rivas pulled his hand away, the man reached into his coat and pulled out a gun. Rivas stepped on the gas, saw a white flash, and heard a loud gunshot.
As Rivas drove away, he realized he could no longer use his right arm and was bleeding from his cheek, arm, and chest. Rivas had a laceration on his cheek, requiring 10 stitches, and the bullet went through the right side of his chest and right arm. He was unable to use his right hand for eight months, and at the time of the preliminary examination, still had no feeling in his hand.
II. Discussion
A. Motion to suppress cell site location information (CSLI)
Harris argues the trial court erred in denying his motion to suppress cell phone location information without holding an evidentiary hearing. We conclude that the trial court did not err because Harris, who was on searchable parole, had no reasonable expectation of privacy in that information.
The relevant facts are derived from the affidavit of Officer Rafael Varela supporting the December 23, 2014 search warrant application. All dates are from 2014 unless otherwise specified.
During the investigation into the December 19, 2014 shooting, San Jose Police Officer Rafael Varela contacted Rivas who confirmed that "the Facebook profile photograph . . . for 'Von Marcell' was the same person who shot him." Rivas also confirmed that, in the exchange of Facebook messages, the person who arranged to meet him at the liquor store provided his telephone number, ending in 5758 (the 5758 number). Rivas told police that when he was conversing with the buyer about the marijuana at the liquor store, the buyer pointed across the street, toward 1151 Francisco Avenue, and said that was where he lived. When Rivas was talking to the buyer, he recognized him from the photos on the buyer's Facebook account.
Varela also noted that the name "Von Marcell" is similar to defendant's full name, Jovan Marcell Harris.
Police learned that the 5758 number was associated with Harris and also that Harris was "on active parole for [Penal Code section] 212 (Robbery) out of the Redwood City Parole Office." A robbery detective spoke to Harris's parole officer and confirmed that this was the telephone number provided by Harris to the parole department. Varela checked records for previous police encounters at this address and discovered that "Javan Harris" had been contacted in front of that address by police in February 2013.
Rivas also noticed a second man, "possibly having dreadlocks," at the crime scene that morning. Officers who responded to the scene that morning observed a man in a vehicle who appeared to match Rivas's description. When officers directed the man, later identified as Lawrence Daniels, to show them his hands, he ran. An officer grabbed the hood of Daniels's sweatshirt, but let go when he saw that Daniels had a gun in his right hand. Daniels escaped, but the vehicle in which he was encountered was registered in his name at 1151 Francisco Avenue. Officers learned that Daniels was on active parole for assault with a deadly weapon, and his parole officer provided an associated telephone number ending in 2831 (the 2831 number).
Because of "the seriousness of the crime and danger to public safety," Varela obtained call records from the 5758 and 2831 numbers. According to those records, Harris's phone was in contact with Daniels's phone three times before the shooting (at 4:57, 4:59, and 5:00 a.m.) and 15 times after the shooting (at 5:28, 5:32, 5:46, 5:54, 6:04, 6:05, 6:16, 6:18, 6:20, 6:30, 6:38, 6:39, 6:40, 6:59, and 7:00 a.m.). After the officers unsuccessfully tried to apprehend Daniels, Daniels's phone contacted Harris's phone at 8:04 a.m. During all of those calls, Harris's phone registered at cell towers within 1.8 miles of 1151 Francisco Avenue.
On December 19, police executed a search warrant at 1151 Francisco Avenue, apartment 1. During the search, the primary resident told police that Daniels was her nephew and that Harris, whom she knew as Leron, arrived at the apartment at 11:00 p.m. on December 18 and spent the night. Daniels was not allowed inside the apartment, however, and slept in his car.
On December 23, the police applied for a warrant to use "pen register" and "trap and trace" devices for 30 days on the cell phones assigned to the 2831 and the 5758 numbers. The devices would allow the telephone utility to track both incoming and outgoing calls from those numbers. The warrant also sought the disclosure of tracking information for the physical location of Harris's and Daniels's cell phones. The trial court issued the warrant that same day.
Harris moved to quash the December 23 search warrant and suppress the cell site location information (CSLI), arguing that the warrant was based on information from a prior warrantless search: specifically, the call records and location data from the morning of December 19. The prosecution countered that: (1) Harris did not have a reasonable expectation of privacy in the information obtained in the warrantless search; (2) the warrantless search was justified by exigent circumstances; (3) no warrant was required because Harris was on parole; (4) the good faith exception to the exclusionary rule applied; and (5) even without the challenged information, the warrant affidavit established probable cause. After hearing argument by the parties, the trial court found that there was no Fourth Amendment violation because Harris had no reasonable expectation of privacy and an evidentiary hearing was not required.
2. Applicable legal principles
The Fourth Amendment to the United States Constitution requires state and federal courts to exclude evidence from unreasonable searches and seizures. (People v. Williams (1999) 20 Cal.4th 119, 125.) Section 1538.5 allows a defendant to move to suppress evidence obtained in an improper seizure. Our standard of review is well established. "In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's factual findings, express or implied, where supported by substantial evidence. [Citation.] And in determining whether, on the facts so found, the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, we exercise our independent judgment." (People v. Simon (2016) 1 Cal.5th 98, 120.)
Absent a recognized exception, a warrantless search is per se unreasonable under the Fourth Amendment. (U.S. Const., 4th Amend.; Katz v. United States (1967) 389 U.S. 347, 357.) One of the exceptions recognized by both the United States Supreme Court and the California Supreme Court is a parole search. (Samson v. California (2006) 547 U.S. 843 (Samson); People v. Schmitz (2012) 55 Cal.4th 909, 916 (Schmitz).) Under section 3067, subdivision (b)(3), "every inmate eligible for release on parole 'is 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 or with or without cause.'" (Schmitz, supra, at p. 916.) Upon release from incarceration, all parolees are given notice that they, their residence, "and any property under [their] control may be searched without a warrant at any time by any agent of the Department of Corrections [and Rehabilitation] or any law enforcement officer." (Cal. Code Regs., tit. 15, § 2511, subd. (b)4.) Because parole search terms are a required element of every parolee's release from custody, knowledge of such a search condition is imputed to any officer who learns of a parolee's status. (Schmitz, supra, at p. 922, fn. 13.) Parole searches are recognized as "a vital part of effective parole supervision." (Id. at p. 924.)
3. Analysis
As he did below, Harris relies on several United States Supreme Court decisions, specifically Riley v. California (2014) 573 U.S. 373, United States v. Jones (2012) 565 U.S. 400, and Carpenter v. United States (2018) U.S. [138 S.Ct. 2206, 201 L.Ed.2d 507] , for the proposition that acquiring his CSLI without a warrant violated his Fourth Amendment rights against unreasonable searches and seizures. While these cases exemplify the United States Supreme Court's cautionary approach to the reams of personal data contained within and generated by modern cell phones in the context of Fourth Amendment jurisprudence, they are readily distinguishable because none of the defendants involved were on parole.
We have uncovered no cases which have held that a warrantless search of a parolee's CSLI violates the Fourth Amendment. In People v. Delrio (2020) 45 Cal.App.5th 965 (Delrio), the court rejected a parolee's argument that he had a reasonable expectation of privacy in the contents of his cell phone. (Id. at p. 968.) Relying on the analyses undertaken by the United States Supreme Court in Samson, supra, 547 U.S. 843, and by the California Supreme Court in Schmitz, supra, 55 Cal.4th 909, the Delrio court concluded that "as with any warrantless search, the reasonableness of the challenged parole search . . . depends on the totality of circumstances." (Delrio, supra, at p. 977.)
In Delrio, police viewed surveillance video of a burglary which showed two individuals carrying sacks walking from a truck, which turned out to be registered to the defendant, to the burglarized home and back. (Delrio, supra, 45 Cal.App.5th at pp. 968-969.) One of the suspects in the footage bore" 'a very close resemblance to the defendant, '" and officers then determined the defendant was on active parole. (Id. at p. 969.) During a parole search of the defendant's residence, officers took the defendant's cell phone, and after demanding his passcode, downloaded its contents. (Ibid.) The defendant pleaded guilty to first degree burglary after the trial court denied his motion to suppress the evidence seized from his cell phone. (Id. at pp. 969-970.) On appeal, the court concluded that because the state has an" 'overwhelming' interest in supervising parolees in order to detect possible parole violations, reduce recidivism, and promote reintegration of parolees into society," as well as a duty to protect the public, a warrantless search of a parolee's cell phone may be justified"' "depending on the degree to which the government has a specific reason to suspect that a particular probationer [or parolee] is reoffending or otherwise jeopardizing his [or her] reintegration into the community." '" (Id. at p. 977.)
In this case, as in Delrio, officers had specific information tying Harris to the armed robbery and shooting (i.e., his telephone number and photograph on the messages sent to the victim), and knew that Harris was on parole. "Under these circumstances, the government had a particularly acute interest in determining whether [Harris] had violated the conditions of his parole and was a danger to the public." (Delrio, supra, 45 Cal.App.5th at p. 977.) Accordingly, the trial court did not err in finding that Harris had no reasonable expectation of privacy in his CSLI.
This case presents an even stronger governmental interest in locating the perpetrator given that he was not just armed with a firearm but actually shot the victim, inflicting serious injury.
In his reply brief, Harris acknowledges parolees' diminished privacy interests but suggests that he was deprived of an opportunity to "present any evidence to show the search was arbitrary, capricious, or harassing," because "the prosecution did not indicate during its argument . . . that it would be relying on his parole status." However, the record is clear that the prosecution raised Harris's parole status in its opposition papers below and Harris stipulated he was a parolee at the outset of the hearing on his motion to suppress. Harris has forfeited the argument. It is well-established that "[a] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." (People v. Partida (2005) 37 Cal.4th 428, 435.)
Because we conclude Harris, as a parolee, had no reasonable expectation of privacy under these circumstances, we need not address the good faith exception to the warrant requirement or the argument that the officers were required to comply with the Stored Communications Act (18 U.S.C. § 2701 et seq.) in seeking to obtain the CSLI.
B. Motion to suppress
Harris next argues that the trial court erred in denying his motion to suppress recordings of calls he made while he was in jail because production of those calls to the prosecution violated the Electronic Communications Privacy Act (ECPA) (§ 1546 et seq.). He contends that, because his trial would necessarily have taken place after the ECPA's effective date, he would have been entitled to enforce its provisions. We disagree.
1. Relevant background
In October 2015, the Santa Clara County Sheriff's Department provided recordings of jail calls from February to October 2015 to which Harris was a party.Those recordings were disclosed to defense counsel in November 2015.
There are no recordings or transcripts of these calls in the record on appeal.
Defense counsel moved to suppress these calls, arguing that disclosure of these calls to the prosecution without a warrant violated the ECPA. In opposition, the prosecutor argued that the ECPA had not come into effect when the recordings were made or when they were disclosed, the parties to the calls knew and consented to recording and monitoring of those calls, and the communications service provider was itself a government entity which voluntarily disclosed the recordings to the prosecution.
Following an evidentiary hearing, the trial court denied the motion, finding that the ECPA did not apply retroactively.
2. Applicable legal principles
Generally, a newly-enacted statute applies prospectively unless otherwise stated in the language of the statute, or when retroactive application is clearly indicated by legislative intent. (People v. Brown (2012) 54 Cal.4th 314, 319-320.)
The ECPA took effect on January 1, 2016 (Stats. 2015, ch. 651, § 1) and provides, among other things, that a government entity may not "[a]ccess electronic device information by means of physical interaction or electronic communication with the electronic device" (§ 1546.1, subd. (a)(3)) unless one of several statutory exceptions applies, including obtaining a warrant. (§ 1546.1, subd. (c)(4).)
3. Analysis
Assuming without deciding that the ECPA applies to calls placed by an inmate from a county or state custodial institution, we find the effective date of the ECPA to be dispositive here. We agree with the analysis of ECPA's retroactivity set forth by the Fourth District Court of Appeal in People v. Sandee (2017) 15 Cal.App.5th 294 (Sandee). In that case, the defendant, who was on probation, sought to suppress evidence seized following a warrantless search of her cell phone. (Id. at pp. 297-298.) In addition to arguing that the search exceeded the scope of her probationary search condition, the defendant sought to invoke the provisions of the ECPA as requiring that she consent to such a search. (Id. at p. 304.) The court rejected her claim because the search took place in September 2015, before the ECPA went into effect. (Id. at p. 305.) The court explained that "the proper inquiry under [People v.] Bravo [(1987)] 43 Cal.3d 600, is whether at the time of the search a reasonable, objective person would have understood the search of Sandee's cell phone to fall within the scope of the warrantless search conditions in Sandee's probation orders. (Id. at pp. 606-607.) As the ECPA was not in effect at the time of the search, a reasonable, objective person at the time of the search would not have understood the ECPA to restrict the scope of the search permitted by the probation orders." (Ibid.)
Accordingly, the appropriate inquiry in this case is "a reasonable person's understanding at the time of the search, not at the time of the suppression hearing" or any subsequent trial. (Sandee, supra, 15 Cal.App.5th at p. 305.) We decline to read the ECPA to operate retrospectively as it does not lessen the punishment for a crime, decriminalize or expand defenses to any particular conduct. (See In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada) [applying ameliorative effect of reduction in punishment for crime to nonfinal judgments]; People v. Rossi (1976) 18 Cal.3d 295, 304 [Estrada applies to decriminalization of conduct]; People v. Wright (2006) 40 Cal.4th 81, 95 [Estrada applies to expansion of defenses].) According to the legislative history, the ECPA is intended to enhance the privacy rights of California residents against" 'warrantless government access to mobile devices, email, text messages, digital documents, metadata, and location information.'" (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 178 (2015-2016 Reg. Sess.).) As this law was not in effect at the time the sheriff's department disclosed the recordings of Harris's jail calls, it is inherently unreasonable to have expected that entity to have complied with its provisions.
C. Ameliorative sentencing enhancements
Finally, Harris contends that he is entitled to remand due to ameliorative changes to certain sentencing laws. The Attorney General concedes the argument and we find the concession appropriate. Effective January 1, 2018, the Legislature enacted Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2), which amended section 12022.53, subdivision (h), to grant trial courts discretion to "strike or dismiss" a firearm enhancement imposed under section 12022.53" 'in the interest of justice pursuant to [s]ection 1385.'" (People v. Morrison (2019) 34 Cal.App.5th 217, 221-222; see People v. McDaniels (2018) 22 Cal.App.5th 420, 428.) Previously, the trial court had no discretion to strike the firearm enhancement mandated by section 12022.53, subdivision (b).
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013, §§ 1 & 2), amended section 667, subdivision (a), and section 1385, subdivision (b), to allow a court to strike or dismiss a prior serious felony conviction for sentencing purposes. As with the firearm enhancement, trial courts previously lacked such discretion.
Finally, effective January 1, 2020, the Legislature enacted Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1), which restricted the applicability of prior prison term sentence enhancements only to terms served for sexually violent offenses (§ 667.5, subd. (b)). On October 8, 2021, the Governor signed Senate Bill No. 483 which added section 1171.1. (Stats. 2021, ch. 728.) Pursuant to this statute, effective January 1, 2022, prior prison enhancements, except those imposed for a prior conviction for a specified sexually violent offense, are legally invalid. (§ 1171.1, subd. (a), added by Stats. 2021, ch. 728, § 3.) Senate Bill No. 483 further declares that "[i]t is the intent of the Legislature that any changes to a sentence as a result of the act that added this section shall not be a basis for a prosecutor or court to rescind a plea agreement." (Stats. 2021, ch. 728, § 1.)
Because Harris's case was not yet final at the time each of these ameliorative changes became effective, he is entitled to their application. Accordingly, remand is appropriate for the limited purpose of permitting Harris to request that the trial court exercise its discretion and strike the serious felony and firearm enhancements, as well as to strike the one year prior prison term imposed under former section 667.5, subdivision (b). (Estrada, supra, 63 Cal.2d 740; People v. Brown, supra, 54 Cal.4th at p. 323.) As the California Supreme Court held in People v. Stamps (2020) 9 Cal.5th 685, if the trial court "is inclined to exercise its discretion" on remand and strike the serious felony sentencing enhancements, the People must be allowed to withdraw from the plea agreement. (Id. at p. 707.) The trial court, of course, would also be empowered under these circumstances to withdraw its approval of the plea bargain. (Id. at p. 708.) We see no reason why the rationale in Stamps would not also apply to a trial court exercising its discretion to strike firearm enhancements.
With respect to prior prison enhancements under Senate Bill No. 136, because we are remanding the matter for possible resentencing depending on what relief Harris seeks, the trial court is best situated-with the assistance of further briefing from the parties-to also address the effect of striking Harris's prison prior in this case, particularly in light of Senate Bill No. 483.
For example, Harris may seek relief from all three enhancements on remand. If the trial court were to indicate an intent to strike either the firearm enhancement or the prior serious felony enhancement (or both), the People or the trial court might then rescind the plea agreement. That would render moot the question of whether striking Harris's prison prior could also lead to such rescission.
D. Ameliorative changes to fines, fees, and assessments
As of July 1, 2021, the statutory provisions pursuant to which the court ordered Harris to pay a criminal justice administration fee were repealed, and newly-enacted Government Code section 6111 became effective. Government Code section 6111 provides: "(a) On and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to Section 27712, subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated. [¶] (b) This section shall become operative on July 1, 2021."
Because this change in the law became effective after the parties had submitted their briefs in this matter, we requested supplemental briefing on the question of the effect of the repeal of former Government Code section 29550 et seq. and the enactment of Government Code section 6111 on this pending appeal.
In response to our request for supplemental briefing, Harris argues that the unpaid portion of the criminal justice administration fee is uncollectible and he is entitled to having that part of the judgment vacated pursuant to Estrada, supra, 63 Cal.2d 740. The Attorney General agrees, as do we.
Pursuant to the plain language of the Government Code section 6111, the unpaid balance of the criminal justice administration fee is unenforceable and uncollectible, and the portion of the judgment imposing that fee must be vacated. (People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953.) Accordingly, we will direct the trial court to modify the judgment as mandated by the new law.
III. Disposition
The portion of any criminal justice administration fee that remained unpaid as of July 1, 2021, is vacated. The judgment is reversed and the matter is remanded to the trial court for the limited purpose of permitting Harris the opportunity to request that the trial court exercise its discretion and strike: (1) the firearm enhancement (current Pen. Code, § 12022.53, subd. (h)); and/or (2) the prior serious felony enhancement (current Pen. Code, § 667, subd. (a)). Harris may also ask that the trial court strike the prior prison term enhancement (current Pen. Code, § 667.5, subd. (b)) in light of Senate Bill No. 483. If Harris does not seek relief under any of these statutes, the judgment will be reinstated and amended to reflect the vacatur of an unpaid portion of the criminal justice administration fee. If the trial court strikes the firearm enhancement and/or prior serious felony enhancement, either the prosecution may withdraw assent to the plea agreement or the trial court may withdraw its approval of the plea agreement. If a new judgment is entered, the trial court is directed to prepare a new abstract of judgment reflecting that judgment as well as the vacatur of any unpaid portion of the criminal justice administration fee. The trial court is directed to forward either the amended abstract of judgment or the new abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: Greenwood, P.J., Elia, J.