Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF132582A, Jerold L. Turner, Judge.
Richard Jay Moller, 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, Louis M. Vasquez, Leanne Le Mon, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Dawson, J., and Detjen, J.
INTRODUCTION
After the denial of his motion to suppress evidence, appellant, Kenneth Douglas Lee, pled no contest to one count of possession of cocaine base for sale and one count of gang participation. He also admitted being armed with a firearm and having two prior felony drug convictions. This appeal challenges the trial court’s denial of his motion to suppress.
STATEMENT OF THE CASE
On July 8, 2010, an information was filed charging Kenneth Douglas Lee as follows: count 1, possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), count 2, possession of cocaine base for sale (Health & Saf. Code, § 11351.5), and count 3, gang participation (§ 186.22, subd. (a)). It also alleged a gang enhancement with respect to counts 1 and 2 (§ 186.22, subd. (b)(1)), that Lee was armed with a firearm (§ 12022, subd. (c)), he had been convicted of two prior felony drug crimes (Health & Saf. Code, § 11370.2, subd. (b)), and had served six prior prison terms.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Lee filed a motion to suppress evidence on August 3, 2010. Following a hearing, the court denied the motion.
Lee thereafter pled nolo contendre to counts 2 and 3, admitted being armed with a firearm, and having two prior felony drug convictions. All other charges were dismissed, and both parties stipulated to a maximum term of 14 years.
On October 5, 2010, the court sentenced Lee as follows: four years on count 2, plus four consecutive years for being armed, and two consecutive three-year terms for the prior felony drug convictions. The court also sentenced Lee to a concurrent two-year term on count 3.
STATEMENT OF THE FACTS
On June 14, 2010, two officers saw Lee standing outside an apartment complex, near the entrance to apartment A. When asked, Lee confirmed to the officers he was on parole. Lee indicated he spent a number of nights at the apartment every week. The other resident, Jennifer Heilgeist, later confirmed Lee started living there from time to time just before the birth of their baby. One of the officers performed a warrantless parole search of the apartment, finding 17.9 grams of cocaine base, paraphernalia of sale, a loaded handgun, and clothing in a closet shared by Heilgeist and Lee indicating a possible gang affiliation.
DISCUSSION
Lee contends that the officers’ search of the apartment he shared with Heilgeist was unlawful, as the People failed to establish the officers were aware Lee was subject to a search condition as part of his parole. Accordingly, Lee argues the trial court should have granted his motion to suppress under section 1538.5.
I. Knowledge of Parole Status was Sufficient to Justify the Search
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established.” (People v. Glaser (1995) 11 Cal.4th 354, 362.) Evidence may be excluded or suppressed “only if exclusion is also mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment.” (In re Lance W. (1985) 37 Cal.3d 873, 896.) While a trial court’s findings of fact are subject to a substantial evidence standard, the appellate court reviews the trial court’s selection of legal principles and its application of those principles de novo. (People v. Ayala (2000) 23 Cal.4th 225, 255; People v. Glaser, supra, at p. 362.) Thus, “the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo.” (Ornelas v. United States (1996) 517 U.S. 690, 691.)
When searching the residence of a person subject to a search condition as a condition of parole, however, “police officers may make a warrantless search of the residence … ‘despite the absence of a particularized suspicion’ as long as the search is not conducted for ‘arbitrary, capricious or harassing’ purposes.” (People v. Middleton (2005) 131 Cal.App.4th 732, 738 (Middleton).) Nevertheless, “police cannot justify an otherwise unlawful search of a residence because, unbeknownst to the police, a resident of the dwelling was on parole and subject to a search condition.” (People v. Sanders (2003) 31 Cal.4th 318, 332.)
Here, neither party contends the search of Lee’s residence was arbitrary, capricious, or done for a harassing purpose. Neither party contends the officers were unaware Lee was on parole, nor that the residence searched was not Lee’s. Even if these facts were in contest, “the ruling of a trial court on a motion implies a finding of fact favorable to the prevailing party on each ground or theory, ” and there is substantial evidence to support each of these findings. (People v. Manning (1973) 33 Cal.App.3d 586, 601.)
Lee contends only that the People failed to establish the officers knew he was subject to a search condition. Lee argues section 3067, subdivisions (b) and (c) provide exceptions to the general declaration under section 3067, subdivision (a) that “[a]ny inmate who is eligible for release on parole pursuant to this chapter shall agree in writing to be subject to search or seizure … with or without a search warrant and with or without cause.” Section 3067, subdivision (b) penalizes inmates who refuse to sign such an agreement by eliminating worktime credit, while section 3067, subdivision (c) applies the requirement of section 3067, subdivision (a) only to “an inmate who is eligible for release on parole for an offense committed on or after January 1, 1997.” Lee argues the People were required to prove the officers knew Lee was not exempted from the mandate of section 3067, subdivision (a) under either the provisions of section 3067, subdivision (b) or (c).
In People v. Solorzano, this court adopted the reasoning in Middleton, which expressly rejected this argument. (People v. Solorzano (2007) 153 Cal.App.4th 1026, 1031-1032 (Solorzano); Middleton, supra, 131 Cal.App.4th 732.) Middleton’s reasoning flowed from a series of California Supreme Court cases holding “‘every grant of parole included an implied search condition, and an officer’s knowledge of parole status was equivalent to knowledge of a parole search condition.’” (Middleton, supra, at p. 739, quoting In re Tyrell J. (1994) 8 Cal.4th 68, (dis. opn. of Kennard, J.), overruled on another ground in In re Jaime P. (2006) 40 Cal.4th 128, 130; see People v. Sanders (2003) 31 Cal.4th 318, 328-335.) Accordingly, this court held “section 3067 does not abrogate the rule in force before the statute took effect, ” and claims that section 3067, subdivisions (b) and (c) provided exceptions to this rule were meritless. (People v. Solorzano, supra, at p. 1032.)
Lee recognizes that Solorzano and Middleton are applicable to the present case, and asks us to reconsider our ruling in Solorzano. We decline to do so.
Given these holdings, the search of Lee’s residence was reasonable, and the trial court properly denied Lee’s motion to suppress. The officers knew Lee was on parole, and had sufficient reason to suspect Lee resided at the apartment, thus satisfying the necessary conditions for a parole search.
DISPOSITION
The judgment is affirmed.