Opinion
B202389
6-3-2008
THE PEOPLE, Plaintiff and Respondent, v. SEAN ANDRE BORUNDA, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Sean Andre Borunda appeals from judgment entered following the denial of his motion to suppress and his subsequent no contest plea to count 2, receiving stolen property (Pen. Code § 496, subd. (a)). He was sentenced to prison for the middle term of two years and contends the superior court violated the principles of stare decisis when it concluded that an officer need not be subjectively aware of a suspects parole status before searching him, and, as a result, erroneously denied appellants motion to suppress evidence of the methamphetamine found. For reasons stated in the opinion, we reverse the judgment.
Pursuant to the negotiated plea, count 1 of the information, alleging possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a), was dismissed.
FACTUAL AND PROCEDURAL SUMMARY
At the hearing on the motion to suppress evidence, it was stipulated that there was no search or arrest warrant in the case. Appellants parole officer testified appellant had been placed on parole on December 24, 2004, for a period of three years and on September 4, 2007, was still on parole. Appellant agreed that one of the conditions of his parole was that he and his residence and any property under his control could be searched by the Department of Corrections or any law enforcement officer without a warrant.
The evidence at the hearing on the motion to suppress established that on June 26, 2007, Glendora Police Officer Michael Skibar was on patrol in a marked vehicle in the 600 block of west Route 66 in Glendora when he saw a Chevy Tahoe vehicle directly in front of him turn into a hotel parking lot without signaling. As that was a violation of the Vehicle Code, Officer Skibar made a traffic stop. There were three people in the vehicle: Carlos Dominguez, the driver; his brother Arturo Dominguez, the right front passenger; and appellant, the left rear passenger. Officer Skibar asked the driver if he had any identification, and the driver provided a California drivers license. Officer Skibar asked all three individuals if they had any knives, guns, drugs, or anything illegal on them and they replied that they did not. Two other officers, Officer OGorman and Officer Ryan Layaye, arrived to assist.
After the driver consented to a search of the vehicle, Officer Skibar had each of the vehicles occupants exit the vehicle. Officer Skibar searched the driver and found nothing illegal on him. Officer OGorman searched Arturo Dominguez and also found nothing illegal. When Officer Layaye searched appellant, Officer Layaye found a baggie of methamphetamine in appellants right, front coin pocket. Regarding the consent to search the vehicle given by the driver and what exactly Officer Skibar asked him, Officer Skibar testified he asked the driver if he had anything illegal in his vehicle, and the driver said he did not. Officer Skibar asked the driver if he could search the vehicle, and the driver said he could. The other two officers were present and none of the officers had their weapons drawn. When the driver gave consent to search the vehicle, he was not in handcuffs. After Officer Layaye found the baggie of methamphetamine, he gave it to Officer Skibar, who put it in his pocket. Before searching the vehicle, Officer Skibar ran a computer search, through dispatch over the radio, and was advised that appellant was on parole for vehicle theft. During a search of the vehicle, specifically in the area where appellant was seated, Officer Skibar found a blue backpack. Inside the backpack, he found a drivers license, a U.C. Irvine student card and a medical card belonging to "Roxanna Moraca." He also found a resume with appellants name on it and a letter from a middle school addressed to appellant.
At the preliminary hearing, Ms. Moraca testified that on March 9, 2007, these items had been stolen from the trunk of her car.
On cross-examination, Officer Skibar testified the three individuals were not ordered out of the vehicle at the same time. He first ordered the driver out of the vehicle and searched him and then placed him in the patrol car. Officer Skibar then ordered appellant out of the car and walked him over to Officer Layaye. Then Officer OGorman ordered Arturo Dominguez out. Officer Skibar could not hear what Officer Layaye asked appellant but could see the search of both passengers. When questioned by the court, Officer Skibar testified he "first asked if they had any knives, guns, drugs or anything illegal on them and they said that they didnt, and also in the vehicle and they said they didnt." Officer Skibar asked them "[I]f [he] could check and [all three] said that [he] could." He "asked the three guys in the car . . . if they had any knives — or if [he could] search the vehicle."
Upon questioning by the court, Officer Skibar contradicted his earlier testimony and testified he learned appellant was a parolee after the drugs had been taken out of appellants pocket and after appellant was handcuffed and placed in the rear seat of the patrol vehicle. It was approximately one minute from the moment Officer Skibar first contacted the driver until appellant was ordered out of the vehicle and searched.
Officer Layaye testified that he heard Officer Skibar ask each individual for consent to search their person and heard each individual respond in the affirmative that they would allow themselves to be searched. Officer Layaye searched appellant. Before searching appellant, Officer Layaye asked him if he had any knives, guns, drugs or anything illegal on him and appellant said he did not. Officer Layaye asked appellant if he could search him and appellant stated he could.
Officer Layaye found in the right, front coin pocket of appellants pants a clear plastic baggie containing a white crystalline substance appearing to be methamphetamine. Officer Layaye testified that for the first ten seconds of the contact, all three officers had their weapons out of their holsters and at their sides as they approached the vehicle. The officers had information that the vehicle could have possibly been involved in a kidnapping. They received information there was a subject being held against his will at a motel.
On cross-examination, Officer Layaye testified that he could not recall what he heard of the questioning by Detective Skibar of the driver and passengers. He was the officer who ordered appellant out and asked him if he had any knives, guns, drugs or anything illegal on him and appellant said he did not. Officer Layaye then asked appellant if he minded if the officer searched his person. Officer Layaye could not recall if he used the word "search" or "check" or "look." He could not recall "the exact wordage." Appellant said that yes, it was okay to search.
Carlos Dominguez testified for the defense that he was the driver of the vehicle and that after he made a right turn into a parking lot, officers came with their guns pointing at him, telling the occupants of the vehicle to put their hands out of the window. One of the officers asked him if the vehicle was registered to him and he answered that it was. The officer asked him if he had any weapons or anything on him and he said he did not. The officer told him to step out of the vehicle and put his hands behind his back and that is when the officer grabbed his hands to search him and pat him down. The officer did not ask, "Can I search you?" Officer Skibar did not tell him why he had been stopped. After Carlos Dominguez was taken to the patrol vehicle, he saw his brother and appellant being searched. He also saw his car being searched, inside and underneath the hood. The officers did not come back and ask if they could search the vehicle and he was not asked when he was stopped initially. The question was never asked. Before looking underneath the hood, one of the officers came back and asked him "Where the guns at, just tell me where the guns at." He told the officer there were no guns, he had nothing on him and there was nothing in the vehicle. At some point, the officers told Carlos and Arturo Dominguez they were free to go. No ticket or citation was issued.
In making its ruling on the motion to suppress, the court stated in pertinent part, "My situation is I think you might have a winner here if your client wasnt a parolee, because frankly, given the fact the People have the burden of proof in this case, there is some very ambiguous testimony having to do with consent given out there at the scene. We heard two or three different things about that. Peoples memories being what they are, one expects a certain amount of inconsistencies in the testimony, and the defense has put on evidence flatly contradicting some of that. [¶] All that aside, the bottom line remains, it seems to me, that the consent in this case was given months in advance. I mean, I think you need to contend with that. What is the purpose of a consent to search thats required by statute, you know, if he doesnt have to do it?" When appellants counsel argued that in the present case, the officers were not aware appellant was on parole until after they searched him, the court continued, ". . . I guess it really depends on the focus in the case. If the focus is on the subjective awareness of the officer, you are certainly right. If the black letter law were that the officer must in all cases be aware of the parole condition in order for a search to be justified on that ground, youve got a winner. [¶] The problem is, it doesnt speak in those terms. The Samson case speaks in the defendants diminished expectation of privacy. In other words, it becomes a question more akin to was there a protectable interest, because we only litigate protectable interests. We dont litigate, for example, claims of abandoned property . . . ."
Samson v. California (2006) 547 U.S. 843, 857.
The court reiterated, "but for your clients parole status, I think youd have a winning motion given the ambiguities in the testimony and given the Peoples burden on the issue of consent at the scene. Thats why Im suggesting that the real issue for this hearing, the real issues is — the simple way to decide this would simply be to say, `yes, Im convinced beyond any shadow of a doubt that the People carried their burden and that the defendant gave a voluntary consent at the scene. Given the state of the evidence, the court is not focusing on that. The court is indicating that I think the consent necessary was given some time ago."
The court found that the initial stop of the vehicle was justified in light of the violation of the Vehicle Code, and that there was no prolonged or illegal detention of anyone in the vehicle. Additionally, it found that the People had not carried their burden of proving appellant consented to the search of his person at the scene, "given some of the vagaries [the court] heard and some of the conflicting testimony even between the officers on that point." The court noted, however, that appellant was on parole. Citing Samson v. California, supra, 547 U.S. 843, 857, the court concluded it was not necessary that the officer be aware that the subject was on parole in order to justify the search. The court continued, "In terms of the pocket, its a lawful search not due to the fact the defendant consented that day, but because his consent . . . was a condition of his release back into society."
The court further found there was sufficient evidence the driver consented to a search of his vehicle, which included the backpack. The court observed the search of the backpack was also covered under the "parole situation."
DISCUSSION
Appellant contends the superior court violated the principles of stare decisis when it concluded that an officer need not be subjectively aware of a suspects parole status before searching him and, as a result, erroneously denied appellants motion to suppress the methamphetamine. Respondent concedes error and agrees appellants conviction should be reversed and the matter remanded to the trial court to allow him the opportunity to withdraw his guilty plea.
In People v. Sanders (2003) 31 Cal.4th 318, 335, our Supreme Court held "that an otherwise unlawful search of the residence of an adult parolee may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted." Whether a search is reasonable "must be determined [based upon] the circumstances known to the officer when the search was conducted[, which requirement] is consistent with the primary purpose of the exclusionary rule — to deter police misconduct." (People v. Sanders, supra, 31 Cal.4th at p. 334.) "[T]he rationale of Sanders similarly applies as strongly to an unlawful personal search of an individual on a public street as to an unlawful search of a residence." (People v. Bowers (2004) 117 Cal.App.4th 1261, 1270.) In the instant case, the officers were unaware of appellants parole status at the time of the search; accordingly, the search cannot be justified based on his parole status.
Contrary to the trial courts determination that Samson supported its conclusion that a police officer need not be aware of a persons parole status at the time of the search, the United States Supreme Court in Samson noted that, under California precedent, "an officer would not act reasonably in conducting a suspicionless search absent knowledge that the person stopped for the search is a parolee. [Citation.]" (Samson v. California (2006) 547 U.S. 843, 856, fn. 5.) Following Samson, the California Supreme Court observed that "Samson also appears to support [the] view that the high court approves of our Sanders holding requiring prior knowledge of the search condition as a protection against harassing searches." (In re Jaime P. (2006) 40 Cal.4th 128, 137.)
"Because the power to judge the credibility of witnesses, resolve conflicts in testimony, weigh evidence, and draw factual inferences is vested in the trial court, on appeal all presumptions favor the trial courts proper exercise of that power. [Citations.]" (People v. Bowers, supra, 117 Cal.App.4th at p.1271.) Here, the trial court specifically concluded appellant had not consented to the search of his person and we cannot uphold the instant search based on consent.
We recognize that the charge to which appellant pled no contest was based on evidence discovered during a vehicle search which the court found justified by the drivers consent. Nevertheless, because it is impossible to assess the impact of the erroneous denial of appellants motion to suppress the narcotics evidence on his decision to plead no contest to the charge of receiving stolen property, the harmless error rule is inapplicable here. As the People concede, appellant must be afforded the opportunity to withdraw his plea, in which case the prosecution is free to reinstate the original charges. (See People v. Ruggles (1985) 39 Cal.3d 1, 13.)
DISPOSITION
The judgment is reversed and the cause remanded to the superior court. That court is directed to vacate appellants no contest plea if appellant moves to withdraw the plea within 30 days of the finality of this opinion. In that event, on motion of the People, the original charges shall be reinstated and trial or other appropriate disposition shall proceed in accordance with the views expressed in this opinion. If defendant does not elect to withdraw his plea of guilty, the superior court shall reinstate the judgment.
We concur:
WILLHITE, J.
EPSTEIN, P. J.