Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF024431. John M. Monterosso, Judge.
Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf, and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington, J.
I
All statutory references are to the Penal Code unless otherwise indicated.
A jury convicted defendant Eric Otero of one count of receiving a stolen car and one count of receiving stolen property. (§§ 496d, subd. (a), 496, subd. (a).) The court found true that defendant had two prior prison terms. (§ 667.5, subd. (b).) Additionally, defendant had 23 prior felony convictions and he was on parole when he was arrested. Consequently, the court sentenced defendant to five years eight months: the upper term of three years on the first count and the middle term of eight months on the second count, plus two one-year enhancements for the prison priors.
On appeal, defendant argues there is insufficient evidence to support his convictions and the upper term sentence of three years is unconstitutional. In a supplemental brief, he contends the trial court erred by refusing to conduct a hearing on defendant’s motion to quash, traverse, or suppress the search warrant. We reject these contentions and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The second amended information charged defendant with four counts. He was convicted on counts 2 and 4. There were two victims in the case, Michael Swanson (Swanson) and Fernando Conde (Conde).
Swanson testified that his 2005 Scion was stolen from his home in Moreno Valley at 7:20 a.m. on January 7, 2008. Conde testified that he discovered his car had been broken into on January 8, 2008, at 6:00 a.m. The stereo, his wallet and watch, and a small suitcase with personal information had been removed from the car. Eventually, a detective returned to Conde his driver’s license, credit cards, and Social Security card.
On January 11, 2008, a team of deputy sheriffs executed a search warrant for growing marijuana at 243 Flicker Street. Because no one was present at the residence, the deputy sheriffs made a forced entry. The windows in the house had been covered in paper. The garage door had a peephole. Swanson’s dark gray Scion, that had been reported as stolen, was in the garage. The vehicle had been partly stripped, the tires and rims removed. A workout bag owned by Swanson was found in the Scion. Other miscellaneous car parts and tools were scattered around the garage. There was no marijuana.
Child custody paperwork, bearing defendant’s name, and insurance paperwork, identifying a Chevrolet Impala owned by defendant, were located in an upstairs bedroom. There were also loan documents found downstairs, bearing the name of Conde, the second victim.
Defendant arrived at the Flicker Street house, driving a Chevrolet Impala and in the company of codefendant, Daniel Morgan. Defendant denied living at the house or ever having been there. Defendant had plastic retaining screws, like those used to hold the Scion’s panels, in his pants pocket. Defendant had the keys to the Impala and to the house on his key ring. The garage door opener in the Impala activated the garage door. Morgan had the keys to the stolen Scion.
III
SUFFICIENCY OF EVIDENCE
On appeal, defendant argues there is insufficient evidence to support his two convictions for receiving stolen property. (People v. Kelly (1990) 51 Cal.3d 931, 956; People v. Catley (2007) 148 Cal.App.4th 500, 504.) The reviewing court applies a standard of review favorable to the judgment. (People v. Farnam (2002) 28 Cal.4th 107, 143.) The elements of the crime of possessing stolen property are that defendant possesses stolen property he knows is stolen. (§ 496; People v. Land (1994) 30 Cal.App.4th 220, 223.) Possession may be actual or constructive so long as defendant exercises control or dominion. (Id. at pp. 223-224.)
Defendant’s arguments are somewhat convoluted. Whereas at trial defendant had denied that he lived at Flicker Street in the face of substantial contrary evidence, on appeal he asserts that mere access to the house did not satisfy the requirement of possession in count 2 for receiving stolen property. (People v. Land, supra, 30 Cal.App.4th at p. 224.) Furthermore, he contends that, even if his previous denial that he lived at the house was demonstrably false, it did not show consciousness of guilt, offering substantial evidence of a specific crime. Defendant points out that the keys to the stolen Scion were found in codefendant Morgan’s pocket, not on defendant’s person. Defendant also reasons that possession of the retaining screws did not implicate him because the screws are common and can come from many sources. Defendant maintains there was no express connection between him and Conde’s stolen documents, which were found downstairs, meaning there was no substantial evidence to support count 4 for receiving stolen property.
In the present case, the stolen car and personal property were located in the house and garage over which defendant exercised dominion and control. Defendant had the key to the Chevrolet Impala on his key ring. The garage door opener in the Impala activated the house’s garage door. The insurance paperwork in the house named defendant as the Impala’s owner. Defendant also had the key to the house on his key ring.
Contrary to defendant’s argument, consciousness of guilt combined with access can constitute sufficient evidence of possession. (People v. Redrick (1961) 55 Cal.2d 282, 287-288.) Defendant’s patently false claim about not living in the house served to establish his consciousness of guilt. (People v. Kimble (1988) 44 Cal.3d 480, 496.) The Scion screws in his pocket also permitted the reasonable inference that he was participating in stripping the stolen Scion. (People v. Towler (1982) 31 Cal.3d 105, 118; People v. Bean (1988) 46 Cal.3d 919, 933.)
We find no merit in defendant’s contention that insufficient evidence supports defendant’s convictions.
IV
CONSTITUTIONALITY OF UPPER TERM
Defendant relies on Cunningham v. California (2007) 549 U.S. 270, to argue the court violated defendant’s Sixth Amendment right to a jury trial concerning the upper term sentence of three years. The court based its sentence on the aggravating factors of defendant’s indisputable recidivism and the “planning, sophistication, and professionalism” of defendant’s crimes.
Defendant was sentenced on July 15, 2008, after the high court issued its decision in Cunningham and after the Legislature amended the Determinate Sentencing Law (DSL). The amended DSL remedied the constitutional infirmities of the former DSL found in Cunningham. In accordance with the requirements of the amended DSL, defendant was not entitled to a jury trial on the factors on which the trial court relied in imposing the upper term.
In sentencing defendant to the upper term on the substantive charge, the trial court noted defendant’s criminal record and his failure to perform on probation. Since defendant was sentenced in accordance with the requirements of section 1170, subdivision (b), as amended, his upper term sentence for the substantive offense did not violate his right to a jury trial or proof beyond a reasonable doubt. (See People v. Wilson (2008) 164 Cal.App.4th 988, 992.) Defendant was not entitled to a jury trial on any of the factors on which the trial court relied in selecting the upper term because, at the time he was sentenced, the middle term was no longer the presumptive term under the DSL. Therefore, we find there was no error in the trial court’s selection of the upper term.
Moreover, even if Cunningham had applied to defendant’s sentencing, there would be no error. (People v. Black (2007) 41 Cal.4th 799, 814-820.) The California Supreme Court held in Black that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions.” (Id. at p. 816.) In People v. Towne (2008) 44 Cal.4th 63, at pages 76 through 81, our Supreme Court examined various recidivism-related factors that permitted trial courts to impose terms above the statutory maximum. The court held that the Sixth Amendment right to a jury trial does not apply to the factors that the defendant has served a prior prison term, that the defendant was on probation or parole when the crime was committed, or that the defendant had previous unsatisfactory performance on probation or parole. (Id. at pp. 81-82.)
Imposition of the upper term on the substantive offense was justified due to defendant’s adult prior convictions, his being on probation at the time of the offense, and his prior unsatisfactory performance on probation. Given defendant’s criminal history, including his prior convictions and performance on probation, he was not “‘legally entitled’ to the middle term sentence, and the upper term sentence [was] the ‘statutory maximum.’” (People v. Black, supra, 41 Cal.4th at p. 813.) In sum, defendant’s criminal history made him eligible for the upper term sentence. Therefore, imposition of the upper term did not violate defendant’s constitutional rights.
V
MOTION TO QUASH/TRAVERSE
Defendant contends that the superior court wrongly denied as moot his motion to quash or traverse the search warrant.
Judgment was entered against defendant on August 27, 2008. The present appeal was ultimately filed on April 10, 2009.
Defendant filed a petition for writ of habeas corpus (E049499) on October 27, 2009, based on the premise that the underlying search warrant had been sealed and that it was ineffective assistance of counsel not to file a motion to unseal and quash the sealed warrant. (People v. Hobbs (1994) 7 Cal.4th 948.) In support of the petition, defendant’s trial counsel said she did not remember the reason for not making a motion. This court granted an order to show cause, returning the case to the trial court for defendant to file a Hobbs motion to unseal the warrant. Defendant filed the Hobbs motion on April 13, 2010, more than 19 months after entry of judgment.
In opposing defendant’s motion, the People explained that the search warrant had never been sealed. The People submitted the unsealed warrant, which did not rely on a confidential informant but was based partly on complaints from unidentified neighbors about heavy foot traffic around defendant’s residence and on the odor of marijuana. The trial court denied the Hobbs motion to quash as moot because the warrant was not sealed. On appeal, defendant argues he is still entitled to have the trial court decide his motion to quash on the merits and the case should be reversed or remanded for determination on this issue.
The first barrier to defendant’s argument is his failure to object to the validity of the warrant before or after trial, based on the proper grounds: “A judgment may not be reversed because of the erroneous admission of evidence illegally seized unless the record demonstrates a motion to exclude or strike the evidence was timely made, on the specific ground asserted on appeal. (Evid. Code, § 353; Pen. Code, § 1538.5, subd. (m).) An objection based on the insufficiency of the affidavit in support of the search warrant may not be raised for the first time on appeal.” (People v. McDowell (1972) 27 Cal.App.3d 864, 879 [4th Dist., Div. 2].)
The second obstacle is that defendant cannot demonstrate that his failure to object was caused by ineffective assistance of counsel. The record on appeal must affirmatively disclose “the lack of a rational tactical purpose for the challenged act or omission.” (People v. Ray (1996) 13 Cal.4th 313, 349; People v. Lopez (2008) 42 Cal.4th 960, 972.) Additionally, defendant must show prejudice. (People v. Mayfield (1997) 14 Cal.4th 668, 784.)
Here it would not have made tactical sense for defendant to challenge the search warrant. In order to claim an expectation of privacy, he would have had to concede he had some dominion or control over the house in which the stolen property was found, thus undermining his defense that he did not live there.
Furthermore, the affiant was an experienced officer with special training in narcotics investigation. (People v. Stanley (1999) 72 Cal.App.4th 1547, 1555.) After neighbors complained about the unusual foot traffic and the sounds of construction, several deputies and the affiant inspected the house and observed the covered windows and the garage peephole and detected the smell of marijuana. The affiant concluded the house was being used to cultivate or sell marijuana. Even “[d]oubtful or marginal cases are to be resolved by the preference to be accorded to warrants. (People v. Mesa (1975) 14 Cal.3d 466, 470.)” (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.) The warrant in this instance was sufficient to withstand challenge so defendant suffered no prejudice due to ineffective assistance of counsel.
VI
DISPOSITION
We hold there is sufficient evidence to support defendant’s convictions and the upper term sentence of three years is constitutional. No error was made concerning the motion to quash. We affirm the judgment.
We concur: Ramirez, P.J., King, J.