Opinion
A149012
06-20-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL R. KITTERMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51420207)
The trial court denied Michael R. Kitterman's motions to quash and traverse the warrant and to suppress the fruits of the search (suppression motion), and to replace appointed counsel (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)). It bifurcated trial on Kitterman's prior conviction allegations. The jury convicted Kitterman of several felonies, including being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and identity theft (§ 530.5, subd. (c)(3)). The court did not hold a trial on Kitterman's prior convictions. It suspended imposition of sentence and placed Kitterman on probation. After Kitterman appealed, the court held the prior conviction allegations true.
Undesignated statutory references are to the Penal Code.
On appeal, Kitterman contends the court erred by denying his suppression and Marsden motions. He also claims—and the Attorney General agrees—the court lacked jurisdiction to make findings regarding his prior convictions after he filed a notice of appeal. We vacate the court's September 19, 2016 finding on Kitterman's prior convictions for lack of subject matter jurisdiction. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Law enforcement officers obtained a search warrant for a residence in Antioch, including storage spaces and appurtenant buildings. When the officers executed the search warrant, they came upon and searched a backyard shed. In the shed, officers found Kitterman. They also found a loaded shotgun and evidence of identity theft.
The prosecution charged Kitterman with several felonies and alleged Kitterman had two prior felony convictions. The court denied Kitterman's suppression and Marsden motions, and bifurcated trial on Kitterman's prior convictions. In July 2015, the jury convicted Kitterman of the charges. The court did not hold a trial on the prior conviction allegations. It deferred sentencing and ordered Kitterman to complete a one-year residential drug treatment program. Kitterman completed the program. In July 2016, the court suspended imposition of sentence and placed Kitterman on probation. Kitterman filed a notice of appeal. Approximately two months later, the court found Kitterman's two prior felony convictions true.
DISCUSSION
I.
The Court Properly Denied the Suppression Motion
A. Background
Kitterman's suppression motion argued law enforcement officers exceeded the scope of the warrant and searched his residence without probable cause. Appointed counsel's law clerk represented Kitterman at the hearing, where the prosecution presented the following evidence:
In August 2013, law enforcement officers received a tip that Karla Kilkenny was selling oxycodone pills. Antioch Police Officers Matthew Koch and John Fortner conducted surveillance at Kilkenny's house. Fortner had been to Kilkenny's house a "handful of times" but had not searched the house or entered the backyard. A law enforcement officer purchased narcotics from Kilkenny and arrested her. Koch then wrote a search warrant affidavit for Kilkenny's residence. When Koch wrote the affidavit, he did not know there was a shed on the property. Fortner knew Koch was going to apply for a search warrant, but Fortner did not discuss the warrant or Kilkenny's residence with Koch.
The warrant authorized the search of "the premises," i.e. "a single story single family dwelling," including "storage spaces, appurtenant buildings, the surrounding grounds, and all containers therein and thereon which could contain any of the items sought." It also authorized a search for oxycontin pills, indicia of drug sales, computers, hard drives, smartphones, and firearms. Fortner did not read the warrant. Koch, Fortner, and other officers went to the house. Koch went to the front door. He was "unaware" a shed was behind the house. Kilkenny's daughter, Jennifer, answered the front door. Koch asked her "if there was anybody else home" and Jennifer said her uncle—Kitterman—"was in the backyard, in the shed." Based on his training and experience, Koch believed the shed was being used as a "storage place," and that it might contain items listed in the warrant. Fortner immediately went to the backyard, to "secure the rear of the residence . . . [a]nd then to clear the backyard." Fortner knew Kitterman was "on the premises" because he overheard Koch's conversation with Jennifer.
Initially, Jennifer did not say Kitterman lived in the shed. After the shed was searched, Jennifer said Kitterman lived in the shed. After searching the house, Koch joined Fortner in the backyard. Koch looked inside the shed and saw a bed. The court admitted photographs of the shed into evidence. At trial, prosecution witnesses provided more detail about the shed's interior.
The backyard contained a dilapidated play structure and a small shed. The shed was 30 to 40 feet behind the house. It was approximately 10 by 12 feet and had no windows. At the threshold was a "little wooden step." The shed had a door with a screen, but no mailbox, doorbell, or signs of a restroom or plumbing. Fortner did not know Kitterman lived in the shed. Law enforcement officers found Kitterman inside the shed and detained him. Fortner searched the shed, "looking for the items sought in the search warrant," i.e. prescription drugs, indicia of drug sales, and firearms. Inside the shed was a "makeshift bed." Fortner found a shotgun, ammunition, and evidence of identity theft. "Towards the end of [his] involvement" in the investigation, Fortner learned Kitterman lived in the shed. In a police report, Fortner stated "I was aware that . . . Kitterman lived in one of the back structures."
The court denied the suppression motion. It noted the warrant authorized the search of "out buildings" and " 'storage spaces,' " and determined the search did not exceed the scope of the warrant. The court also concluded "nobody knew [Kitterman] lived there before the search." Finally, the court determined Kitterman did not present "sufficient proof to conclude that there was any reckless disregard for the truth" when the officers executed the warrant.
B. The Warrant Authorized the Search of the Shed
"As the finder of fact in a proceeding to suppress evidence [citation], the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. [Citation.] Accordingly, in reviewing the instant suppression order, we consider the record in the light most favorable to [the prosecution] since 'all factual conflicts must be resolved in the manner most favorable to the [superior] court's disposition on the [suppression] motion.' [Citation.] But while we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found." (People v. Woods (1999) 21 Cal.4th 668, 673-674.) Additionally, we "review the warrant's description of the property to be searched in a commonsense and realistic fashion," recalling that they are " 'drafted by nonlawyers in the midst and haste of a criminal investigation.' " (People v. Smith (1994) 21 Cal.App.4th 942, 948-949 (Smith).)
Kitterman contends the affidavit did not authorize the search of the shed—his "separate residence." " '[A] warrant to search "premises" located at a particular address is sufficient to support the search of outbuildings and appurtenances in addition to a main building when the various places searched are part of a single integral unit. [Citations.]' 'The authority to search for contraband and seize it on described premises extends "to all parts of the premises used for the unlawful purpose." ' " (Smith, supra, 21 Cal.App.4th at p. 950.) An " 'outbuilding' [is] '[s]omething used in connection with a main building. A small building appurtenant to a main building, and generally separated from it; e.g. outhouse; storage shed.' " (Id. at p. 951.)
Here, the warrant authorized the search of the "premises," including "storage spaces, appurtenant buildings, the surrounding grounds, and all containers . . . thereon which could contain any of the items sought." The shed was a " 'small building appurtenant to a main building.' " (Smith, supra, 21 Cal.App.4th at p. 951.) It was small—only 120 square feet—and had no windows or signs of plumbing. There was no address or mailbox, and no evidence the shed had electricity or a lock on the door. Without plumbing, the shed would likely have been used " 'in connection with' " the main building: Kilkenny's house. (Ibid.) Koch and Fortner testified they did not know Kitterman lived in the shed; Koch testified he thought the shed used as a "storage place." We agree with the lower court that the shed came within the scope of the warrant. (People v. Minder (1996) 46 Cal.App.4th 1784, 1788 [search of safe near back porch was within scope of the warrant]; Smith, supra, 21 Cal.App.4th at pp. 949-950 [corrugated metal shed, located over a quarter mile from the residence on a ranch, qualified as an "outbuilding"].)
Kitterman contends the court's factual finding that " ' nobody knew [Kitterman] lived there before the search' " is unsupported by substantial evidence. He also claims that before the search, the officers "reasonably understood" the shed was a "separate residence." We disagree. At the suppression hearing, Fortner testified he did not know Kitterman lived in the shed before he began searching it. He also testified he learned Kitterman lived in the shed "[t]owards the end of [his] involvement" in the investigation. Fortner's statement in his police report that he "was aware that . . . Kitterman lived in one of the back structures" does not demonstrate Fortner had this knowledge before the search. Finally, the search was complete when Koch learned Kitterman was living in the shed. Abundant evidence supports the court's finding that, at the time of the search, the officers did not know Kitterman lived in the shed. Kitterman's reliance on the "collective knowledge doctrine" is unavailing.
This case is not—as Kitterman argues—like People v. Nguyen (2017) 12 Cal.App.5th 574 (Nguyen), where a warrant authorized the search of a single-story residence, including garages and outbuildings, associated with two people, including the defendant. (Id. at pp. 577-578.) The trial court granted the defendant's suppression motion, making factual findings that the rear building was not a garage and that officers knew the building was a separate residence before searching it. The appellate court determined substantial evidence supported those findings. (Id. at pp. 580, 582.) Here, the court found "nobody knew [Kitterman] lived there before the search," and substantial evidence supports this finding. Additionally, the shed here was markedly different from the building in Nguyen, which required two keys to enter, and which amassed 1,000 square feet and contained bathroom, living, room, kitchen, and windows. (Id. at p. 579.)
We are not persuaded by Kitterman's claim that Fortner should have realized the shed was Kitterman's residence. The constitutionality of law enforcement officers' execution of the search warrant is assessed "in light of the information available to them at the time they acted." (Maryland v. Garrison (1987) 480 U.S. 79, 85.) Based on the information available when the officers executed the warrant, they reasonably believed the shed was within the scope of the warrant. (Id. at p. 88.) The court properly denied Kitterman's suppression motion.
II.
The Denial of the Marsden Motion Was Not an Abuse of Discretion
A. Background
On the first day of trial, Kitterman expressed dissatisfaction with his representation and requested removal of appointed counsel. The court conducted a Marsden hearing, at which Kitterman stated he had several reasons why counsel needed to be substituted "based on the Strickland analysis." Kitterman said he had concerns about counsel's failure to communicate with him and to present certain evidence. According to Kitterman, counsel never kept him "informed on the case at all," did not return his emails, and did not give him "any updates" or "discuss[] strategy." Kitterman had drafted a motion to dismiss and given it to counsel to file, but the version counsel filed did not stress "certain points of police misconduct." Counsel "never discussed" the motion with him. Kitterman was concerned that a law clerk argued the suppression motion. Kitterman reiterated his complaint regarding the search of his property and claimed counsel colluded with the police and "ordered the police to search [his] computer."
Kitterman had handed a written Marsden motion to his attorney shortly before trial. At the Marsden hearing, the court referred to the written motion, but relied primarily "upon the oral statements of [Kitterman] and his attorney." --------
The court asked defense counsel whether she told Kitterman that a law clerk would argue the suppression motion. Counsel responded, "Absolutely. And not only that, the law clerk was in constant communication with [Kitterman]. So there was no surprise . . . that a law clerk would . . . be arguing" the motion. Then the court asked whether Kitterman consented "to having a law clerk argue th[e] motion" and counsel responded, "Yes." Next, the court asked whether Kitterman had provided counsel with a draft suppression motion. Counsel replied that Kitterman had e-mailed her a draft and they discussed it. After receiving Kitterman's draft, counsel withdrew the original suppression motion and filed a new motion. In response, Kitterman said, "what a beautiful motion you wrote. You are my new hero." He thanked counsel "about 20 or 30 times." After the suppression hearing, Kitterman thanked counsel again.
The court denied the Marsden motion, noting it had allowed Kitterman "a very long time" to voice his grievances.
B. No Abuse of Discretion in Denying the Marsden Motion
"When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation—i.e., makes what is commonly called a Marsden motion [citation]—the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the court's discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel." (People v. Smith (2003) 30 Cal.4th 581, 604.)
We reject Kitterman's claim that the court did not give him an opportunity to "support" his Marsden motion. " ' "[A] Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant's allegations regarding the defects in counsel's representation and decides whether the allegations have sufficient substance to warrant counsel's replacement." ' " (People v. Gutierrez (2009) 45 Cal.4th 789, 803.) Marsden requires a trial court to listen to a defendant's " 'reasons for requesting a change of attorneys.' " (Id. at p. 804.) The court did that here—it allowed Kitterman to list the grounds upon which he believed there was inadequate representation and an irreconcilable conflict, giving Kitterman "a very long time" to voice his grievances. (See People v. Hart (1999) 20 Cal.4th 546, 604.)
Kitterman has not established the law clerk's representation at the suppression hearing was inadequate. There was also no breakdown between counsel and Kitterman such that it was impossible for appointed counsel to defend him. (See People v. Myles (2012) 53 Cal.4th 1181, 1207.) "[T]actical disagreements between a defendant and his attorney or a defendant's frustration with counsel are not sufficient cause for substitution of counsel." (People v. Streeter (2012) 54 Cal.4th 205, 231.) Kitterman has not shown counsel's performance detrimentally affected his trial. That the court sustained objections to defense counsel's questioning at trial and during closing argument does not demonstrate counsel's representation at trial was inadequate. Therefore, Kitterman's right to counsel was not substantially impaired. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) We conclude the court did not abuse its discretion by denying the Marsden motion. (Streeter, supra, at p. 230.)
III.
The Court Lacked Jurisdiction to Make a Finding on Kitterman's
Prior Convictions
The parties agree the court lacked jurisdiction to make a finding on Kitterman's prior conviction allegations after he filed a notice of appeal. They are correct. (People v. Espinosa (2014) 229 Cal.App.4th 1487, 1500.) The court's September 19, 2016 finding regarding Kitterman's prior conviction allegations, made after Kitterman filed a notice of appeal, is vacated for lack of subject matter jurisdiction. (Id. at p. 1500.)
DISPOSITION
The court's September 19, 2016 finding regarding Kitterman's prior convictions is vacated for lack of subject matter jurisdiction. In all other respects, the judgment is affirmed.
/s/_________
JONES, PJ. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.