Opinion
C074337
08-29-2017
THE PEOPLE, Plaintiff and Respondent, v. BENITO MORALES, SR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF101045)
Defendant appeals from a judgment entered after two unsuccessful motions in the trial court: (1) a motion to suppress evidence pursuant to Penal Code section 1538.5 and (2) a motion to withdraw his guilty plea under Penal Code section 1018. The trial court did not err in its rulings and we affirm the judgment.
FACTS AND PROCEEDINGS
Defendant was charged by felony complaint with multiple violations of the Health and Safety Code (unless otherwise set forth, statutory section references that follow are to that Code), including possession of methamphetamine for sale (§ 11378), possession of heroin (§ 11350, subd. (a)), possession of methamphetamine (§ 11377, subd. (a)), possession of controlled substance paraphernalia (§ 11364, subd. (a)), as well as resisting and/or obstructing an officer (Pen. Code, § 148, subd. (a)(1)).
Pursuant to a plea agreement, defendant thereafter pleaded no contest to one count of possession of methamphetamine in violation of section 11377, subdivision (a) and, on July 3, 2013, he was sentenced to 16 months in prison to be served consecutive to a 15 year prison sentence assessed in an unrelated proceeding.
We will set forth the facts relevant to defendant's contentions as we discuss those contentions, post.
DISCUSSION
I
The Motion to Suppress
Defendant moved pursuant to Penal Code section 1538.5 to suppress the evidence seized from him after authorities followed him into his home without a warrant thus, in his view, violating his Fourth and Fourteenth amendment rights. He argued that, contrary to the law enforcement officers' belief that people who were on searchable probation lived at his residence, in fact, they did not and that the police actions were taken without probable cause and without a search warrant or consent.
The People countered that the search was lawful because defendant's home was the last known address of Paul Morales, a probationer, who was on searchable probation and thus had consented to the warrantless search of his person and home. The People argued that the authorities were aware that another occupant of the address, a minor, was also on searchable probation. The People added that the entry was justified by the exigent circumstances created by defendant's quick retreat into his home, potentially warning others of the imminent probation search.
Defendant's motion was heard on October 26, 2012; the court heard the testimony of two prosecution and five defense witnesses.
The evidence presented at the hearing on the motion was as follows.
West Sacramento police officer Steve Godden, working as a patrol officer on February 3, 2010, was looking for X.L. who was wanted on felony arrest warrants. He spoke to M.H. who told him X.L. was at the time on her way to see her cousin, Paul Morales. Officer Godden initially did not know where Morales lived, but later determined through his department that a records check with the Department of Motor Vehicles showed that he had a driver's license listing 905 Oak Street in West Sacramento as his address. Godden was familiar with the address and knew that defendant lived there and he knew that Paul Morales was on searchable probation. He could not recall whether he knew if a minor who also lived there was on searchable probation on February 3.
At approximately 9:00 p.m. on the evening of February 3, Godden went to the Oak Street address to conduct a probation search and to see if X.L. was there. He was joined by Officers Bjerke, Albert, Stallions, and Angle. Officer Godden knocked on the front door of the house and then heard a "commotion" coming from the driveway/garage area of the house. Godden and Bjerke ran toward that part of the house and found Stallions inside the garage with the minor and learned that the other two officers had followed defendant as he ran into the house from the garage. Godden and Bjerke then ran into the house to support Angle and Albert.
The officers conducted a "protective sweep" of the house after which Albert told Godden that Albert thought he had found some "contraband" in the bathroom opposite the room where the other officers had detained defendant. Godden searched the bathroom and found drugs in the toilet and related items on the floor
Detective Eric Angle testified that he was working as a patrol officer for the West Sacramento Police Department on February 3, 2010. At about 9:00 p.m. he went with Officer Godden and other officers to 905 Oak Street in West Sacramento to look for a person who was wanted on outstanding warrants to carry out probation searches of a minor at that address and of Paul Morales. Angle testified that he confirmed on the date of the search that the Oak Street address was "the address that [Paul Morales] had through probation."
When the officers arrived at the Oak Street address, Angle and another officer were standing near the roll-up garage door. When the other officers knocked on the front door, the garage door started to go up and Angle saw the minor and the defendant in the garage.
Angle called into the garage and told defendant and the minor the officers were there to conduct a probation search. Angle knew that the minor was on searchable probation. Defendant immediately turned and went into the kitchen of the house and Angle followed. Once in the house, Angle heard defendant, running, say to his mother who was in the living room that the police were there to do a probation search. Angle, concerned for the mother's and the officers' well-being, feared that defendant was attempting to get a weapon or get rid of evidence, gave chase. Defendant ran down a hallway. Angle told defendant to stop but defendant continued running.
Just before Angle overtook and grabbed him, defendant appeared to throw something in a room on the right side of the hallway. After he was stopped, officers found "a lot of money" in defendant's pants pockets.
At the time of the search, Angle knew that defendant was not on searchable probation or parole or wanted for any offense. Thus, before defendant ran into the house, Angle had no grounds to detain him
The defense witnesses testified to their recollection of the events of February 3, 2010, and denied that X.L, the woman the police were trying to arrest at the time, was living in the house, denied that Paul Morales was living in the house, but admitted that the minor who was on probation lived at the house on that date.
The trial court denied the motion to suppress, finding that the officers had the right to undertake a probation search of the residence and that defendant's flight into the house once he knew of the officers' presence created exigent circumstances justifying the officers' entry into the house and, ultimately, the arrest of defendant.
The Fourth Amendment protects individuals from unreasonable searches and seizures, and one remedy for a violation of that right is the exclusion of evidence seized during an illegal search. (People v. Downey (2011) 198 Cal.App.4th 652, 657 (Downey).) California has set forth the procedures for the suppression of illegally seized evidence in Penal Code section 1538.5.
A warrantless search of a home and attached garage is per se unreasonable unless it falls under a recognized exception to the warrant requirement. (People v. Robles (2000) 23 Cal.4th 789, 795.) A probationer with a search condition "consent[s] in advance to warrantless searches and seizures in exchange for the opportunity to avoid serving a state prison term." (Ibid.) Such a search need not be supported by "reasonable cause" (People v. Woods (1999) 21 Cal.4th 668, 675) and will be upheld if found to support a legitimate law enforcement purpose. (Id. at p. 681; see also People v. Mason (1971) 5 Cal.3d 759, 763 [recognizing valid purpose for probation search included confirmation of compliance with, not just violations of the law] disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn.1.)
A search condition may be used to justify searches for the purpose of obtaining evidence against a third party providing the search of the probationer was objectively reasonable under the circumstances. (Woods, supra, 21 Cal.4th at pp. 671-72, 675 [even if the "sole" reason for the search was to uncover evidence to be used against the defendant, the officer had an objectively reasonable basis for conducting the probation search].) Thus, the officer's subjective intent to collect evidence against a third party is irrelevant where the officer's conduct is objectively reasonable under applicable standards. (Id. at pp. 680-681.) It will not be upheld if undertaken in a "harassing or unreasonable manner" (id. at p. 682) or if undertaken for an "arbitrary or capricious" reason. (People v. Bravo (1987) 43 Cal.3d 600, 610; see also People v. Cervantes (2002) 103 Cal.App.4th 1404, 1408 ["A search is a form of harassment when its motivation is mere whim or caprice"]; In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004 [contrasting personal animosity with a desire to enforce the law].)
Defendant argues that authorities violated his Fourth Amendment rights when they entered his house without a warrant because they did not know with a sufficient degree of certainty that one or more probationers subject to search lived there and that the police were looking for evidence against a third party and thus the search was not related to the "purposes of probation."
Defendant also argued the inapplicability of the exigent circumstances exception to the need for a search warrant on the basis that police lack probable cause and that any alleged exigency was caused by the police's conduct.
Substantial evidence supports the trial courts findings of fact, and based upon those findings, that the police had an objectively reasonable belief that one or more probationers who had agreed to a search condition lived at the address in question and acted reasonably pursuant to legitimate law enforcement purposes in conducting the search.
Identification of the address of a person on probation is sufficient where the officer had an objectively reasonable belief that the probationer lived at the address searched. (Downey, supra, 198 Cal.App.4th at p. 658.) This is less than probable cause. (Id. at p. 662.) "[T]he question of whether police officers reasonably believe an address to be a probationer's residence is one of fact, and we are bound by the finding of the trial court, be it expressed or implied, if substantial evidence supports it." (Id. at p. 658.) This review is limited to the evidence before the trial court at the time it ruled on the suppression motion. (People v. Moore (2006) 39 Cal.4th 168, 171; In re Arturo D. (2002) 27 Cal.4th 60, 77, fn. 18.) However, the appellate court exercises its own "independent judgment in determining the legality of a search on the facts so found." (Downey, at p. 659.)
The trial court found the police "knew [Paul Morales] was on searchable probation" and that the police had "verified with the probation department and DMV that morning that the address he was known to be living at" was the residence in question. We find substantial evidence supports this finding. Officer Godden testified he had obtained that address from the DMV database earlier that day. The driver's license in question was not expired. Further, Officer Angle testified that both he and Officer Godden checked the address and that the probation department had the Oak Street address.
We will note that, apparently, one computer database search revealed no address for Morales but that does not disprove that law enforcement officers obtained the 905 Oak Street address from the probation department and from the DMV. Further, we must limit our review to the evidence before the court making the evidentiary ruling, and thus, do not consider any allegedly contradictory statements from police reports not presented to the court ruling on the motion to suppress. (See Moore, 39 Cal.4th at p. 171; In re Arturo D., 27 Cal.4th at p. 77, fn. 18.) Defendant's reliance on People v. Gibson (2001) 90 Cal.App.4th 371 to argue that the information that law enforcement received was stale is misplaced because that case concerns the alleged staleness of information underlying a search warrant and does not speak to the lawfulness of a probation search. (People v. Jones (1995) 11 Cal.4th 118, 123, fn. 2 ["cases are not authority for propositions not considered"].)
Defendant also appears to challenge the search based upon the minor's probation status as a person on searchable probation. Specifically, defendant challenges whether the police knew the minor's address prior to the search at Oak Street.
The trial court found that the officers knew at the time of the search that the minor was on searchable probation and was living at the Oak Street address. Substantial evidence supports this finding. While Officer Godden could not recall at the time of the search whether the minor was on searchable probation, Detective Angle knew that he was and further testified that he knew the minor was living at the address through his juvenile probation records, thus substantiating the finding. (See In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [testimony of single witness may provide substantial evidence].)
Defendant also argues the probation search was a pretext for searching for a third party and thus was constitutionally invalid. Whether authorities were subjectively looking for a third party is not the relevant inquiry. Entry into a house to conduct a probation search is valid if there is an objectively reasonable reason for that probation search. (Downey, supra, 198 Cal.App.4th at p. 658.) Thus, because we have concluded the search of the residence was lawfully conducted as a probation consent search for a legitimate law enforcement purpose, that is to insure compliance with probation conditions, it does not matter that the police were looking for a third party believed to be at that address. (See Woods, supra, 21 Cal.4th at p. 681.) No additional justification is required. (Id., at p. 675.)
Finally, defendant argues there were insufficient exigent circumstances to justify the officers entering his home without a warrant.
"The Fourth Amendment to the federal Constitution guarantees against unreasonable searches and seizures by law enforcement and other government officials. Because a warrantless entry into a home to conduct a search and seizure is presumptively unreasonable under the Fourth Amendment (Welsh v. Wisconsin (1984) 466 U.S. 740, 748, 749 ), the government bears the burden of establishing that exigent circumstances or another exception to the warrant requirement justified [their] entry. (People v. Williams (1988) 45 Cal.3d 1268, 1300.)" (People v. Rogers (2009) 46 Cal.4th 1136, 1156.)
"One established exception to the warrant requirement . . . is when 'exigent circumstances' exist to justify a warrantless entry." (People v. Wharton (1991) 53 Cal.3d 522, 577.) For instance, a police officer who has probable cause to believe a dwelling contains evidence of a crime and has reason to fear imminent destruction of the evidence may enter the dwelling to " 'secure' it without first getting a warrant. (People v. Bennett (1998) 17 Cal.4th 373, 384-385.)" (People v. Seaton (2001) 26 Cal.4th 598, 632.)
Moreover, the exigent circumstances doctrine exception to the warrant requirement will apply where there is a need for swift action to prevent an imminent danger to life. (People v. Rogers, supra, 46 Cal.4th at p. 1156.)
We have no difficulty upholding the trial court's finding that the officers were also justified in entering the home based on the exigent circumstances created by defendant turning and running back into the house when he became aware of their presence. Officer Angle testified that upon seeing defendant run into the house and hearing that defendant's mother was in the house, he was concerned for the mother's and the officers' well-being and he feared that defendant was attempting to get a weapon or get rid of evidence.
The trial court found Angle to be credible and, thus, the officers had reason to be concerned that defendant might have been attempting to obtain a weapon or destroy evidence. Each of those concerns was reasonable once defendant, immediately upon becoming aware of the presence of law enforcement officers, fled into the house. Either of those circumstances created an exigency to which the officers were permitted to respond.
The trial court did not err.
II
Motion to Withdraw Defendant's Plea
On November 27, 2012, following an unsuccessful attempt to replace his attorney, defendant waived his right to counsel and chose thereafter, to represent himself.
On March 25, 2013, the following colloquy occurred between the court and the defendant:
"THE COURT: Mr. Morales, just out of curiosity, is there any resolution that you would accept to resolve your case today for a full dismissal of the charges?
"THE DEFENDANT: Time served.
"THE COURT: How would you get to time served? What would you be willing to plead to, to get to time served?
"THE DEFENDANT: Possession.
"THE COURT: So possession. How long have you been in custody?
"THE DEFENDANT: Couple [of] years."
Plea discussions followed and, ultimately, the People offered defendant two options. First, if defendant waived his right to appeal in a separate proceeding for which he received a 15 year sentence, the People would agree that, in this matter, he would plead to simple possession of methamphetamine and receive a sentence of eight months consecutive to the 15 year sentence in the other proceeding. If defendant would not waive his appeal rights in the other proceeding, the People would agree that he could plead to simple possession and admit a prior strike resulting in a sentence in this matter of 16 months to be served consecutive to the 15 year prison term in the other proceeding. Defendant chose the latter option and entered his plea accordingly.
The felony plea form signed by the defendant on March 25, 2013, made no mention of "time served" or custody credits.
On May 13, 2013, defendant filed a motion to withdraw his no contest plea "on the ground that the court is without jurisdiction to impose consecutive sentences in case #10-5297" and because he had received an "illusory promise" of time served when he entered into the plea bargain and, therefore, he had not made a "knowing and intelligent" waiver of his rights when he entered his no contest plea.
The matter was heard by the trial court and denied on July 3, 2013 and, as noted earlier, defendant was then sentenced to, among other things, 16 months in state prison consecutive to the 15 year sentence he had been ordered to serve in another proceeding.
Penal Code "[s]ection 1018 provides, in part: 'On application of the defendant at any time before judgment . . . , the court may, . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice.' The defendant has the burden to show, by clear and convincing evidence, that there is good cause for withdrawal of his or her guilty plea. (Ibid.; People v. Nance (1991) 1 Cal.App.4th 1453, 1457.) 'A plea may not be withdrawn simply because the defendant has changed his [or her] mind.' (Nance, at p. 1456.) The decision to grant or deny a motion to withdraw a guilty plea is left to the sound discretion of the trial court. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254; Nance, at p. 1457.) 'A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion.' (Nance, at p. 1456; see Fairbank, at p. 1254 ['A decision to deny a motion to withdraw a guilty plea . . . is final unless the defendant can show a clear abuse of [the trial court's] discretion.'].) 'Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them.' (Fairbank, at p. 1254.)
" . . . To establish good cause to withdraw a guilty plea, the defendant must show by clear and convincing evidence that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud, or duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1207-1208.) The defendant must also show prejudice in that he or she would not have accepted the plea bargain had it not been for the mistake. (In re Moser (1993) 6 Cal.4th 342, 352.)" (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-1416.)
Defendant argues, in part, that he should have the benefit of that portion of Penal Codes section 1018 that provides: "On application of the defendant at any time before judgment . . . , the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted."
In ruling on the motion, the trial court said, "The plea agreement does not state that Mr. Morales was going to get credit for time served. The transcript [of the plea hearing] does not define what is meant by credit for time served. The discussion in court does not include any discussion about taking credits away from him or giving him credits that he had not earned. Initially during the discussions Mr. Morales stated he would resolve the case for credit for time served for a simple possession charge. That offer was not accepted by the people. . . . The People responded with a counteroffer which did not include credit for time served. No one mentioned credit for time served as part of that response. . . . Neither of those offers mentioned or included any offer of credit for time served, nor was any clarification requested by Mr. Morales to confirm whether or not that was part of the offer. It was not stated as part of the offer, and the plea agreement does not mention credit for time served. The discussion about the plea options did not touch on the point of whether he was going to get extra conduct or custody credits than what he had earned. So the argument that he believed or he was entitled to credit for time served as part of this resolution is not supported by the record. I would note parenthetically that the credits he has on both cases to date far exceed the sixteen months that he agreed to in this, so in a sense he is [sic] credit for time served. But no one bothered to define what they meant by credit for time served during the discussion, and it was clearly not part of the agreement that was offered and accepted by Mr. Morales. The transcript indicates that Mr. Morales acknowledged that he read and understood the plea form, which makes no mention of credit for time served, and he was freely and voluntarily entering into that plea agreement."
The trial court did not abuse its discretion in finding defendant failed to meet his burden for withdrawal of his guilty plea based upon his unexpressed belief that he was getting "time-served" on the possession charge to which he was entering his plea where the record clearly established he would be sentenced to sixteen months in prison consecutive to a sentence of 15 years in prison to which he had been sentenced in another matter. The plea colloquy clearly stated that sentence, the written plea agreement clearly stated that sentence and defendant agreed to that sentence. While there were initial discussions about "time served" those discussions did not survive the final plea agreement. The trial court did not err.
Finally, to the extent defendant genuinely believed he would be receiving no additional time as a result of his plea, he knowingly assumed the risk that his beliefs would be in error and assumed the risk of a lack of understanding of the proceedings when he chose to represent himself. He cannot now reasonably or convincingly complain about the consequences of his decision. (Faretta v. Cal. 422 U.S. 806, 834-835.)
DISPOSITION
The judgment is affirmed.
HULL, J. We concur: RAYE, P. J. BLEASE, J.