Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD212906, Cynthia Bashant, Judge.
McCONNELL, P. J.
INTRODUCTION
A jury convicted David Libanan Opheim of transporting, furnishing or giving away methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) In addition, the trial court found true allegations Opheim had three prior convictions for possessing a controlled substance for sale (Health & Saf. Code, §§ 11370.2, subd. (c), 11378) and four prior prison convictions (Pen. Code §§ 667.5, subd. (b), 668). The trial court sentenced him to 16 years in prison. The trial court also imposed various fines and fees, including a $30 court facilities fee under Government Code section 70373.
Opheim appeals, contending the trial court erred by denying his motion to suppress the evidence against him, and by imposing the court facilities fee. We conclude there is no merit to these contentions and affirm the judgment.
As the issues raised on appeal do not require reference to the evidence presented at trial, we confine our summary of facts to the evidence presented at the hearing on Opheim's motion to suppress.
At the hearing on Opheim's motion to suppress, Iowa-based United States Postal Inspector William Marshall testified he scrutinizes packages from states, including California, from which there is a high incidence of narcotics being shipped through the mail to locations in the Midwest. He noticed a standard express mail envelope sent from "B. Guster" at 31 Deepdell Road in San Diego, California (San Diego address) to "A. G. String" at 415 South A Street in Oskaloosa, Iowa (Oskaloosa address). Through database searches, Inspector Marshall determined the sender's name was not associated with the San Diego address and the recipient's name was not associated with the Oskaloosa address. In addition, the package label did not list phone numbers for either the sender or the recipient, and the sender had waived the requirement for obtaining the recipient's signature.
After the Oskaloosa Police Department performed a canine sweep of the package with negative results, Inspector Marshall took the package to the Oskaloosa address and spoke with residents Gloria Smallwood and her adult son. Although the Smallwoods acknowledged having relatives in San Diego, they stated they were not expecting a package from California and they consented to Inspector Marshall opening it. Inspector Marshall opened the package in their presence. Inside was an envelope containing four small packets of methamphetamine.
Mrs. Smallwood told Inspector Marshall she had been wire-transferring money to her nephew, Opheim, at the request of her sister. She gave Inspector Marshall the receipts for the wire transfers. The receipts showed Opheim's address as 7676 Northrup Drive in San Diego.
Inspector Marshall was at the Smallwoods' residence approximately 45 minutes to an hour. During that time, Opheim called Mrs. Smallwood's cell phone number at least seven times. Earlier in the day, Mrs. Smallwood had called Opheim.
San Diego-based United States Postal Inspector Kelly Cain subsequently determined Opheim had mailed the package by comparing a counter surveillance videotape with a Department of Motor Vehicle photograph of Opheim. Opheim mailed the package on a Saturday with an expected delivery date of the following Monday. The package had a tracking number, which would allow a person to check the status of the package's delivery. Neither Inspector Marshall nor Inspector Cain checked to see if anyone ever attempted to track the package.
After a state parole officer took Opheim into custody, Inspector Cain determined Opheim resided at 1647 Shircliffe Street in Chula Vista, although Opheim's driver's license stated his address was 7676 Northrup Drive in San Diego. Officers searched Opheim, his car and his home. They did not find the express mail receipt issued to the sender of the package.
According to Inspector Cain, once a package is mailed, the sender cannot retrieve it. Instead, the United States Postal Service (Postal Service) will deliver the package as addressed. If the Postal Service cannot deliver a package to the addressee, it will return the package to the sender at the sender's address. Since Opheim was not associated with either the Oskaloosa address or the San Diego address, the Postal Service would not have released the package to him.
Inspector Cain further explained that, if a package cannot be delivered or returned, the package is sent to the "dead letter" center. To retrieve a package from there, a person who is not listed as the sender on the package would have to prove ownership of it. One way of proving ownership is to produce the express mail receipt for the package.
Based on the evidence presented at the hearing, the trial court denied Opheim's motion to suppress. The trial court found Opheim had abandoned the package and, therefore, had no reasonable expectation of privacy in it when Inspector Marshall opened it.
DISCUSSION
I
Opheim contends the trial court erred in denying the motion to suppress because there is insufficient evidence to show he had abandoned the package. "In ruling on a motion to suppress, the trial court is charged with (1) finding the historical facts; (2) selecting the applicable rule of law; and (3) applying the latter to the former to determine whether or not the rule of law as applied to the established facts has been violated. [Citation.] On appeal, we review the trial court's resolution of the first inquiry, which involves questions of fact, under the deferential substantial-evidence standard, but subject the second and third inquiries to independent review." (People v. Parson (2008) 44 Cal.4th 332, 345 (Parson); accord, People v. Pereira (2007) 150 Cal.App.4th 1106, 1111 (Pereira).)
The Fourth Amendment to the federal Constitution protects against unreasonable searches and seizures by law enforcement and other government offices. (Parson, supra, 44 Cal.4th at p. 345.) This protection does not apply, however, to abandoned property, as a person has no reasonable expectation of privacy in such property. (Ibid.; Pereira, supra, 150 Cal.App.4th at pp. 1111-1112.)
Whether a defendant has abandoned property " 'is determined by objective factors, not the defendant's subjective intent. " 'Abandonment is primarily a question of intent, and intent may be inferred from words, acts, and other objective facts. [Citations.] Abandonment here is not meant in the strict property-right sense, but rests instead on whether the person so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search.' " [Citations.]' [Citation.] 'The question whether property is abandoned is an issue of fact, and the court's finding must be upheld if supported by substantial evidence.' " (Parson, supra, 44 Cal.4th at p. 346; accord, Pereira, supra, 150 Cal.App.4th at pp. 1112-1113.)
Here, the evidence shows Opheim mailed the package using a false sender name and a false sender address. In addition, he did not provide a contact phone number for either himself or the recipient, and he waived the requirement for obtaining the recipient's signature. Collectively, these facts show Opheim intended to have nothing further to do with the package after he mailed it. Accordingly, we conclude there is substantial evidence to support the trial court's finding Opheim had abandoned his reasonable expectation of privacy in the package by the time Inspector Marshall opened it.
The Pereira case, upon which Opheim relies, is distinguishable. In Pereira, the defendant shipped an overnight package containing a teddy bear through a private shipping company. (Pereira, supra, 150 Cal.App.4th at pp. 1109-1110.) Although the defendant listed a false sender's name and return address on the shipping invoice, the defendant requested a routing number to track the package. (Id. at p. 1109.)
The following day the shipping company's owner became suspicious of the package and notified the police. A police officer picked up the package and examined it at the police station. The officer found a half pound of marijuana inside the teddy bear. The officer also identified the defendant as the sender. (Pereira, supra, 150 Cal.App.4th at p. 1110.)
Meanwhile, the defendant contacted the shipping company several times inquiring about the package's location. (Pereira, supra, 150 Cal.App.4th at p. 1110 .) At the direction of police officers, the owner of the shipping company called the defendant back and told him he could pick up the package at the shipping company's office. The defendant then went to the shipping company to collect the package where the officers arrested him. (Ibid.)
The trial court subsequently granted the defendant's motion to suppress the evidence against him, finding the defendant had maintained an expectation of privacy in the package and had not abandoned it. (Pereira, supra, 150 Cal.App.4th at p. 1111.) After the trial court dismissed the case, the People appealed and the appellate court affirmed. (Id. at pp. 1109, 1111.)
Recognizing the issue of abandonment presented a question of fact, the appellate court concluded there was substantial evidence to support the trial court's finding that the defendant had not abandoned the package. (Pereira, supra, 150 Cal.App.4th at p. 1113-1114.) While the appellate court noted the defendant's use of a false name to send the package could support a finding of abandonment, the court concluded it did not in this case because of other countervailing evidence. (Id. at p. 1113.) As specific factual support for the trial court's finding, the appellate court pointed to: (1) the lack of evidence the recipient's name and address were false; (2) the defendant's intentional acquisition of a tracking number allowing him to maintain control over the package; (3) the defendant's repeated phone calls to the shipping company to determine the package's location; and (4) the defendant's use of a valid telephone number for the shipping company to return his phone calls, which precluded him from remaining completely anonymous. (Ibid.) The appellate court also noted there was no evidence the police officer knew when he opened the teddy bear that the defendant had used a false name and address on the package. (Id. at p. 1114.)
This case lacks the countervailing evidence present in the Pereira case. In this case, Inspector Marshall knew when he opened the package that both the sender's and recipient's names were false, the sender's address was false, and the sender had not provided contact telephone numbers for himself or the recipient. He also knew the residents at the Oskaloosa address had disavowed any knowledge of or interest in the package. Since, at that point, the Postal Service did not know the identity of the sender and could not deliver or return the package, an officer in Inspector Marshall's position could have reasonably believed the sender had abandoned the package. Although the sender potentially could have retrieved the package from the "dead letter" center if the sender had retained and presented a receipt for it, this possibility was sufficiently remote under the circumstances that it did not preclude a reasonable belief of abandonment. (See, e.g., U.S. v. Pitts (7th Cir. 2003) 322 F.3d 449, 456-457 [launching a package into the mail stream without a realistic means of retrieving it is a classic case of abandonment].)
Inspector Marshall's failure to determine before opening the package whether the sender had attempted to track it also does not preclude a reasonable belief of abandonment. While there was evidence of such tracking presented in Pereira, the court's decision did not turn solely on this evidence. Moreover, neither Pereira nor any of the other authorities cited by Opheim delineate specific steps an officer must take before the officer can reasonably believe a sender has abandoned a package. As the test for abandonment depends upon the totality of the circumstances, there may be instances where an officer must first determine whether a sender has tracked a package before a court will consider an officer's belief of abandonment reasonable. In this case, however, Opheim's clear efforts to disassociate himself from the package sufficiently support an abandonment finding without the need to show he did not attempt to track the package.
II
Opheim next contends the trial court erred in imposing a $30 court facilities fee under Government Code section 70373 because this statute took effect after his crime and cannot be applied retroactively to him. We disagree.
Government Code section 70373, subdivision (a)(1), which became effective January 1, 2009, requires the trial court to impose a $30 court facilities fee for every misdemeanor or felony conviction. (Stats. 2008, ch. 311, § 6.5; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1111; People v. Castillo (2010) 182 Cal.App.4th 1410, 1412-1413.) Because the fee applies to convictions rather than conduct and is not punitive, a trial court properly imposes it on every conviction occurring after the statute's effective date even if the underlying conduct occurred beforehand. (People v. Knightbent, supra, at p. 1112; People v. Castillo, supra, at p. 1414; see also People v. Alford (2007) 42 Cal.4th 749, 754 [reaching the same conclusion regarding an analogous court security fee statute].) Accordingly, we conclude the trial court did not err in imposing the court facilities fee in this case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J. IRION, J.