Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD193058, Browder A. Willis III, Judge.
BENKE, Acting P. J.
A jury convicted Arnulfo Vazcones of possessing methamphetamine for sale (Health & Saf. Code, § 11378) and possession of a firearm by a felon (Pen. Code, § 12021). The court sentenced Vazcones to prison for 10 years. Vazcones appeals, contending (1) the court erred in denying his motion to suppress the evidence obtained during a parole compliance check because the search was arbitrary, capricious, bordered on harassment and exceeded the necessary scope and (2) his due process rights were violated when the court instructed the jury with Judicial Council of California Criminal Jury Instructions (2006-2007),CALCRIM Nos. 220 and 224. We affirm the judgment.
FACTS
On the evening of August 17, 2005, San Diego Police Officers Jason States and Michael Stacy of the gang suppression unit were driving their patrol car and noticed two men who appeared to be working on a parked car on the side of the street. Vazcones was one of the men. The hood of the car was up and the doors were open. It is a violation of San Diego Municipal Code section 86.23(b) to work on a car in the street. When the officers asked Vazcones and his associate about the car, Vazcones replied the car was not running and they were trying to figure out the problem.
Vazcones was wearing a tank top that showed his tattoos. The officers suspected these were prison and gang tattoos and asked Vazcones if he was on probation or parole. Vazcones replied he was on parole and was released from prison two weeks earlier. The officers confirmed his parole status and decided to do a parole compliance check. They searched Vazcones and found $481 in cash. The officers then searched Vazcones's residence, where he lived with his mother. The residence consisted of a duplex, and behind the duplex was a detached garage that is considered part of the Vazcones residence.
The police activities attracted several people from the Vazcones residence. Cynthia Marquez identified herself as Vazcones's wife and when told that there was an issue with the car, she retrieved the current registration for the officers. Marquez was actually Vazcones's girlfriend and mother of his child. Stacy decided to follow Marquez to the house because he was concerned she might remove items that violated Vazcones's parole conditions. As Stacy approached the residence, he heard a woman yell something in Spanish and saw Marquez coming from the garage with her purse. Stacy noticed the garage door was locked. He followed Marquez into the house and advised her they were doing a parole compliance check because Vazcones was on a Fourth Amendment search waiver as a condition of his parole.
Stacy asked Marquez where Vazcones lived. She replied he slept on the couch in the main house and she lived in the garage. Stacy did not notice any male clothing or other articles that would indicate Vazcones was living in the main house; he did notice the items in the single bedroom appeared to belong to a woman. Stacy told Marquez he did not believe Vazcones lived in the main house and he needed to search the garage. Marquez initially declined Stacy's request but Stacy eventually got the keys from her. As Stacy was talking to Marquez, Vazcones's mother spoke with a Spanish-speaking officer. Vascones's mother told the officer Vazcones was staying in the living room and described where he kept his belongings in the house.
When the police searched the garage, they found more than an ounce of methamphetamine, glass pipes, two digital scales, a hand gun, plastic baggies, a spoon with white residue, men's clothing, Vazcones's California identification card and various documents in Vazcones's name. Vazcones and Marquez were then arrested and placed in the back of a police car that had a recording device covertly placed. Vazcones and Marquez made incriminatory remarks on the recording. Marquez testified everything in the garage belonged to her and Vazcones was not involved.
DISCUSSION
I
Vazcones contends the court erred by denying his motion to suppress evidence. He argues the officers' initial stop was pretextual and was thus arbitrary and capricious, bordering on harassment. Vazcones also asserts there was no evidence he had dominion and control over the garage and therefore the parole search exceeded its necessary scope.
A
In a hearing on a motion to suppress evidence, the superior court sits as a finder of fact. (People v. Lawler (1973) 9 Cal.3d 156, 160.) The trial 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. (Ibid.) On appeal all presumptions favor the trial court's findings on such matters, and they will be upheld if they are supported by substantial evidence. (Ibid.) The ultimate responsibility of the appellate court is to measure the facts, as found by the trier, against the constitutional standard of reasonableness. (Ibid.)
B
All parolees in California are automatically subject to the condition that "[y]ou and your residence and any property under your control may be searched without a warrant at any time by any agent of the Department of Corrections or any law enforcement officer." (15 Cal. Code Regs. § 2511(b)(4).) Further, under California law "[w]hen involuntary search conditions are properly imposed, reasonable suspicion is [not] a prerequisite to conducting a search of the subject's person or property. Such a search is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing." (People v. Reyes (1998) 19 Cal.4th 743, 752.) In this regard the state is not only monitoring the parolee's rehabilitation but protecting the public, and if a parolee can be searched at any time, the parolee will be disinclined to engage in illegal activity. (Ibid.) Therefore, a parolee may be searched as long as the law enforcement or parole officer has a legitimate rehabilitative, reformative or law enforcement purpose and the search is not motivated by personal animosity toward the parolee. (Id. at p.754.) The Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. (Samson v. California (2006) 547 U.S. 843 [126 S.Ct. 2193, 2202].)
C
In denying Vazcones's motion to suppress evidence, the court made factual findings on a number of issues. The court found the initial stop was not speculative and there were clear and articulable reasons for initiating the stop. The court also found the search was not arbitrary, capricious or harassing and the officers' suspicion that led to the search of the garage was reasonable.
Vazcones contends the police stop on the basis of a possible Municipal Code violation was subterfuge, bordering on harassment, and the search initiated was based on an arbitrary hunch. The evidence showed the officers saw two men bent over the open hood of a car, Vazcones told them his associate was a mechanic and they were trying to get the car running. The officers were concerned the car may have been stolen or there was an ongoing Municipal Code violation. Having seen Vazcones's gang and prison tattoos, the officers asked if he was on probation or parole. Vazcones replied he was on parole and was just released from prison two weeks earlier. Vazcones seemed very nervous about the contact and the officers decided to conduct a parole search. While waiting for confirmation of Vazcones's parole status, the officers found $481 in cash on him. Substantial evidence supports the court's finding there were clear and articulable reasons for the initial stop.
D
Vazcones also contends the parole search exceeded the necessary scope because there was no substantial evidence he had dominion and control over the garage. When conducting a parole search, officers generally must reasonably believe the parolee has complete or joint control over the property searched. (People v. Woods (1999) 21 Cal.4th 668, 682.) When a third party lives with a parolee, areas and items shared with the parolee are also subject to search. (People v. Britton (1984) 156 Cal.App.3d 689, 703, disapproved on other grounds in People v. Williams (1999) 20 Cal.4th 119, 134-135.) But the police must have an objectively reasonable basis for believing a particular area or item searched was shared by the parolee and third party and not occupied or belonging to the third party alone. (Ibid.)
When Marquez approached the officers, she stated she was Vazcones's wife. Later, she told the officers she lived in the detached garage alone and Vazcones stayed in the living room of his mother's one-bedroom duplex. Vazcones's mother and sister also told the officers Vazcones stayed in the living room. However, the officers found this to be highly suspicious as there was nothing in the living room to indicate an adult male lived there.
Vazcones explained his and Marquez's newborn son was placed in foster care two weeks earlier because he was born with a positive toxicology for methamphetamine. Vazcones was attempting to create a separate residence from Marquez in order to obtain custody of his son. However, this living arrangement was not made known to the officers at the time of the search.
Vazcones asserts the officers did not conduct a diligent search of the duplex before concluding he was not living there because they did not look in closets or drawers for Vazcones's belongings. However, given Vazcones's unlikely explanation of his living arrangements, the officers were not required to fully search the duplex before searching the garage. Once the officers entered the garage and did a cursory search, they immediately found Vazcones's California identification card. The officers also found male clothing and documents with Vazcones's name, confirming the garage was where Vazcones lived.
As we have stated, when a third party lives with a parolee, the areas and items shared are subject to search as long as the officers have an objectively reasonable basis for believing so. (People v. Britton, supra, 156 Cal.App.3d at p. 703.) Here, the officers had good cause to believe Vazcones lived in the garage with Marquez, including her assertion they were married and the lack of male items in the duplex. Substantial evidence supports the trial court's finding the police officers had reasonable suspicion Vazcones had joint control of the garage. The trial court properly denied of the motion to suppress.
II
Vazcones contends two of the pattern jury instructions used violated his constitutional right to due process. He asserts the instruction on reasonable doubt (CALCRIM No. 220) limited the jury to relying only on evidence received at trial and precluded them from taking into account the lack of physical evidence. Vazcones also asserts the jury instruction regarding multiple reasonable inferences drawn from circumstantial evidence (CALCRIM No. 224) lowered the prosecution's burden of proof by allowing the jury to find him guilty if it believed he was not innocent.
In reviewing challenged jury instructions, we must determine whether it is reasonably possible the jury could have applied the instruction in a way that violates the Constitution. (People v. Frye (1998) 18 Cal.4th 894, 957.) In conducting this inquiry, we consider the instructions as a whole. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.)
A
The court instructed the jury with CALCRIM No. 220 as follows in part: "In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." (CALCRIM No. 220.) "Evidence" was then defined as "the sworn testimony of witnesses, the exhibits admitted into evidence," and anything else the court instructed was to be considered as evidence. (CALCRIM No. 222.) Because it is presumed jurors follow the instructions given to them (People v. Osband (1996) 13 Cal.4th 622, 714), Vazcones argues the jury was precluded from considering the absence of evidence in making its determination. He claims the jury was not allowed to consider the absence of physical evidence tying him to the offense such as the lack of fingerprints on the drug bag, scales or gun and the fact that he did not have a key to the garage.
Although the beyond a reasonable doubt standard is required for due process, the Constitution does not prohibit trial courts from defining reasonable doubt, as long as the court instructs the jury the defendant's guilt must be proved beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5 [114 S.Ct. 1239].) Further, the Constitution does not require any particular wording to be used in instructing the jury as to the government's burden of proof. (Ibid.) Reasonable doubt has been defined as one "based on reason which arises from the evidence or lack of evidence." (United States v. Johnson (1965) 343 F.2d 5, 6 fn. 1.)
Contrary to Vazcones's claim, CALCRIM No. 220 did not tell the jury reasonable doubt must arise solely from the evidence. (People v. Campos (2007) 156 Cal.App.4th 1228, 1238.) CALCRIM No. 220 provides that if the evidence does not prove the defendant guilty beyond a reasonable doubt, the jury must find the defendant not guilty. Because the prosecution is required to prove every element of the crime, the jury presumably understands a lack of evidence could lead to reasonable doubt. Further, if CALCRIM No. 220 required the jury specifically consider the lack of evidence in a reasonable doubt determination, such an instruction may lead the jury to presume the defendant has some responsibility of proving reasonable doubt.
Vazcones's reliance on People v. Simpson (1954) 43 Cal.2d 553 is misplaced. The defendant in Simpson argued the trial court's instruction on reasonable doubt shifted the burden to him to prove his innocence. The court instructed the term "reasonable doubt" meant "a doubt which has some good reason for its existence arising out of evidence in the case; such doubt as you are able to find a reason for in the evidence." (Id. at p. 565, fns. omitted.) The California Supreme Court held this language was unnecessary and possibly confusing because "reasonable doubt . . . may well grow out of the lack of evidence in the case as well as the evidence adduced." (Id. at p. 566.)
Here, in contrast, the instruction did not tell the jury reasonable doubt had to arise solely out of the evidence in the case. The court simply instructed the jury to consider all of the evidence presented, and Vazcones raised the specter of evidence that could be perceived as lacking in the prosecution's case. Thus use of CALCRIM No. 220 did not violate Vazcones's due process rights.
B
Vazcones also asserts the trial court's use of CALCRIM No. 224 was erroneous. He claims the prosecution's standard of proof was lowered by the clause "If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence." Because the jury is only required to determine if a defendant is guilty or not guilty, Vazcones contends the use of the word "innocence" in the instructions allows the jury to find the defendant guilty if it believed that he is not innocent. However, it must be noted the disputed language does not stand alone but is preceded by the statement "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty." (CALCRIM No. 224.)
Several California courts have evaluated this jury instruction in light of similar arguments. Division Three of the Fourth Appellate District noted: "We recognize the semantic difference and . . . we agree that the language is inapt and potentially misleading in this respect standing alone. [¶] However, this court and others have consistently determined there could be no harm because the other standard instructions make the law on the point clear enough." (People v. Han (2000) 78 Cal.App.4th 797, 809.) However, in reviewing this part of CALCRIM No. 224, the California Supreme Court held it was not reasonable a jury would have misconstrued these instructions because they reiterate the requirement the defendant be found guilty beyond a reasonable doubt and the "instructions in question use the word 'innocence' to mean evidence less than that required to establish guilt." (People v. Crew (2003) 31 Cal.4th 822, 848.) Moreover, CALCRIM No. 224 does not instruct how to consider the evidence as a whole, but how to consider specific circumstantial evidence when that evidence can be construed in such a way as to point to the defendant's innocence. (People v. Anderson (2007) 152 Cal.App.4th 919, 932.)
Here, all of CALCRIM No. 224 was read to the jury as were the instructions on what constitutes reasonable doubt. Taken as a whole, a jury would not construe the language to mean that if it was not convinced of Vazcones's innocence, it must find him guilty. The plain language of the instruction emphasizes the presumption of innocence and the requirement every fact and piece of circumstantial evidence used to determine ultimate guilt must be proven beyond a reasonable doubt. We conclude the use of CALCRIM No. 224 did not lower the prosecution's burden of proof.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J., IRION, J.