Opinion
C079497
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. CEDRIC HOLLAND, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F03184)
A jury found defendant Cedric Holland guilty of numerous crimes against three minor victims, including eight counts of committing a lewd and lascivious act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)), three counts of oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b)), one count of exhibiting harmful matter to a minor for purposes of seduction and sexual gratification (§ 288.2, subd. (a)), one count of kidnapping (§ 207, subd. (a)), and one count of kidnapping with the intent to commit a lewd and lascivious act upon a child under the age of 14 years (§ 209, subd. (b)(1)). The jury also found true the allegations that he committed the crimes against multiple victims within the meaning of section 667.61, subdivision (e)(4). In a bifurcated proceeding, the trial court found true the allegations he had served a prior prison term (§ 667.5, subd. (b)), had a prior serious felony conviction (§ 667, subd. (a)) within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12), and had a prior sex offense conviction within the meaning of sections 667.61, subdivision (d)(1), 667.71, and 667.51, subdivision (a). The trial court sentenced him to an aggregate term of 502 years to life in prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred in denying his motion to suppress evidence obtained from the global positioning system (GPS) monitor defendant was required to wear while on parole showing his locations on the date of the kidnapping. He further contends the trial court erred in prohibiting his proposed expert from observing DNA analysis conducted by the district attorney's crime lab. We affirm the judgment.
FACTUAL BACKGROUND
This case involves numerous sex-related crimes against three minor victims under the age of 10 years. However, in view of the limited issues raised on appeal, we only briefly summarize the facts regarding the kidnapping. The procedural background relevant to the claims raised on appeal is discussed post.
A. The Kidnapping
On the morning of March 11, 2013, Magdalena M. and her three young children walked to a strip mall on Stockton Boulevard in South Sacramento. While they were inside a dd's DISCOUNTS store, Magdalena's oldest daughter, seven-year-old Gabriella, went to look at toys by herself. In the toy aisle, a man approached her and asked whether he could "get [her] something." Gabriella did not respond and went back to her mother. Although she was scared, Gabriella did not tell her mother about this encounter. After leaving the dd's DISCOUNTS store, Gabriella and her family went into a 99 Cents Only Store.
As Gabriella and her family were walking home from the strip mall, a Black man in a blue four-door car stopped near the intersection of 47th Avenue and 54th Street, grabbed Gabriella as she was crossing the street, and threw her into the trunk. After Magdalena screamed for help, several people came out of their homes, including a woman who called 911. The call was made at 1:06 p.m.
Shortly after Gabriella was taken, the kidnapper stopped at a stoplight at Wire Drive and 47th Avenue. When he did so, Gabriella opened the trunk by pulling a green-lighted lever inside the trunk. She then jumped out before the kidnapper drove away.
Following her escape, a couple living nearby walked with Gabriella to her mother's location. After they arrived, a second 911 call was placed. The call was made at 1:09 p.m.
When Brian Smith of the Sacramento County Sheriff's Department arrived on scene, he was directed to the location of a black Bluetooth earpiece with a blue light. A witness to the kidnapping told Officer Smith that he saw the kidnapper drop the earpiece. Gabriella described the kidnapper as having hair a little shorter than his shoulders. She also said he was wearing a black shirt with a white picture on it, had a green tattoo on his left arm, and had a black and blue device in his ear.
B. Surveillance Video
On the day of the kidnapping, multiple surveillance cameras captured the following: A man matching the description given by Gabriella entered the dd's DISCOUNTS store directly behind Gabriella and her family. Once inside the store, the man interacted with Gabriella in the toy aisle. When Gabriella and her family went into the 99 Cents Only Store, the man followed them inside and exited the store shortly after they did. After Gabriella and her family left the strip mall, a blue car exited the parking lot and drove in the same direction as they were walking--southbound on Stockton Boulevard. The blue car subsequently parked in a Pep Boys parking lot near the corner of Stockton Boulevard and 47th Avenue. Shortly thereafter, Gabriella and her family walked across that parking lot towards 47th Avenue.
C. Defendant's Prior Conviction for Failure to Register as a Sex Offender and Parole Conditions
In December 2011, defendant was sentenced to 16 months in prison for failing to register as a sex offender. (§ 290.018, subd. (b).) He was paroled in July 2012, with a controlling discharge date of July 2015. As a condition of his parole, he was subject to suspicionless searches. (§ 3067, subd. (b)(3).) He was also required to wear a GPS ankle monitor 24 hours a day. The GPS ankle monitors used by the Department of Corrections and Rehabilitation record a parolee's location approximately every minute. The typical margin of error in a parolee's location is approximately 50 feet.
D. Data Obtained from Defendant's Ankle Monitor
Following the kidnapping, law enforcement obtained data from defendant's ankle monitor to determine his location on the day of the kidnapping. The data generated by the ankle monitor showed, in part, as follows: Defendant was in and around the dd's DISCOUNTS store and the 99 Cents Only Store between 12:02 p.m. and 12:31 p.m. Thereafter, he traveled south on Stockton Boulevard to the Pep Boys store at 47th Avenue and remained stationary at that location between 12:44 p.m. and 12:50 p.m. He was at 47th Avenue and 54th Street (i.e., the location of the kidnapping) from 1:01 p.m. to 1:05 p.m. At 1:06 p.m., he was near Wire Drive. He was at his residence at approximately 1:20 p.m. Around 1:30 p.m., he returned to the area near the location of the kidnapping.
E. Defendant's Arrest
On May 16, 2013, defendant was taken into custody at his parents' residence. Officers found him sitting in the driver's seat of a blue Ford Taurus sedan.
F. Items Seized During the Search of Defendant's Room and Car
Following defendant's arrest, officers conducted a search of his room at his parent's residence. Officers also searched the Taurus. During the searches, various items were found, including defendant's cell phone and items consistent with what the kidnapper wore. Inside the trunk of the Taurus, a criminalist found one long dark brown head hair.
G. Relevant Evidence Adduced at Trial Regarding the Kidnapping
At trial, Gabriella identified defendant as the kidnapper. The parties stipulated that, had defendant's mother testified, she would have said that she recognized the man in the surveillance footage as her son, and that her son owned a Bluetooth earpiece. The parties also stipulated that the Taurus belonged to defendant, and that the Taurus was in his possession on the day of the kidnapping.
A criminalist testified that the major contributor to the DNA found on the Bluetooth earpiece had the same profile as defendant. He explained that a matching profile was estimated to occur among unrelated individuals in approximately 1 in 800 sextillion of the African-American population. The criminalist also testified that the DNA profile from the head hair found in the trunk of defendant's car matched Gabriella's DNA profile. A matching profile was estimated to occur among unrelated individuals in approximately 1 in 12 quintillion of the Hispanic population.
The police officer that discovered defendant's cell phone testified that when it was placed near the Bluetooth earpiece found at the scene of the kidnapping, the earpiece automatically paired with it.
DISCUSSION
A. Motion to Suppress
Defendant contends the trial court erred in denying his motion to suppress the evidence obtained from his GPS ankle monitor showing his location on the day of the kidnapping. He argues that obtaining the evidence constituted a search under the Fourth Amendment, and that his Fourth Amendment rights were violated because the search was a generalized investigatory search that exceeded the scope of a permissible parole search. We conclude the trial court properly denied defendant's motion to suppress.
1. Additional Background
Prior to trial, defendant filed a motion to suppress the evidence obtained from his GPS ankle monitor showing his location on the date of the kidnapping. His written arguments in the trial court mirror the arguments he now makes on appeal. In the trial court, as on appeal, defendant relied on Grady v. North Carolina (2015) ___ U.S. ___ [135 S.Ct. 1368, 191 L.Ed.2d 459] (Grady), to argue that the evidence obtained from his ankle monitor constituted a search under the Fourth Amendment. Based on this premise, he argued that the search was not a permissible parole search because it was unrelated to a legitimate law enforcement purpose as there was no articulable law enforcement reason to conduct such a search. According to defendant, the search constituted an unreasonable generalized investigatory search.
In Grady, the defendant was subjected to a satellite-based monitoring (SBM) program as a recidivist sex offender following sex-related convictions in 1997 and 2006. He was placed on the SBM program after completing his sentence for the 2006 conviction. (Grady, supra, 135 S.Ct. at p. 1369.) The program was not ordered as a condition of his parole or other postrelease supervision. Rather, the SBM program was "civil in nature." (Id. at p. 1371.) The defendant argued that the SBM program—under which he would be forced to wear tracking devices at all times—violated his Fourth Amendment right to be free from unreasonable searches and seizures. Both the state trial court and court of appeal rejected the defendant's argument. (Id. at p. 1369.) In doing so, the North Carolina appellate court concluded that the SBM program did not constitute a search. (Id. at p. 1370.) After the North Carolina Supreme Court summarily dismissed the defendant's appeal, the United States Supreme Court granted review. (Ibid.) In reversing, the Supreme Court held that a search occurs under the Fourth Amendment when the government attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements. (Ibid.) In so holding, the court reasoned that a Fourth Amendment search occurs when the government obtains information by physically intruding on a constitutionally protected area. (Ibid.) The court explained that because the SBM program was "plainly designed to obtain information," and because "it does so by physically intruding on a subject's body, it effects a Fourth Amendment search." (Id. at p. 1371.) However, because the North Carolina courts did not examine whether the SBM program was reasonable under the Fourth Amendment when viewed as a search, the matter was remanded for further proceedings. (Ibid.)
At the outset of the suppression hearing, the trial court noted that defendant had been released from prison on parole after serving less than his 16-month term for failing to register as a sex offender. (§ 290.018, subd. (b).) The trial court reasoned that defendant's election to be released early on parole rendered his ankle monitoring consensual, thereby distinguishing this case from Grady. The court suggested that defendant's consent to GPS monitoring might obviate the need to determine whether the search was reasonable under the Fourth Amendment.
In response, defense counsel maintained that a search pursuant to a parole condition could still violate the Fourth Amendment if it was arbitrary, capricious, or part of a pattern of harassment. Counsel noted that defendant's location had been recorded approximately once every minute, establishing an invasive constant search. The trial court noted that intrusiveness was key but indicated that simply having one's location sent from an ankle monitor was not particularly intrusive. Defense counsel then argued that the search in this case, where multiple sex offenders with an ankle monitor had their locations checked against the location of the kidnapping, constituted an improper generalized search.
When the prosecutor was asked for her position, she agreed with the court that Grady is distinguishable. She argued that, even assuming a search occurred, the search was a lawful parole search. In arguing that the search was permissible, the prosecutor noted that defendant had agreed to a suspicionless search condition, and therefore had a diminished expectation of privacy under the Fourth Amendment. The trial court agreed that a parolee's expectation of privacy is diminished; noting that the only limitation on searches conducted under a properly imposed parole condition was that the search not be arbitrary, capricious, or harassing.
In denying the motion to suppress, the trial court reasoned as follows: "To the extent of what Grady is indicating, is that where consent exists, it does not fall within the purview of what they're describing is a search. This is not a search at all. [¶] To the extent that they are describing something else, whether utilization of the term nonconsensual or without consent, and they are still indicating that this situation would be a search, the issue becomes, does the Fourth Amendment prohibit this type of search. [¶] What the Fourth Amendment prohibits is unreasonable searches. [¶] And the reasonable[ness] of the search, according to the case, depends on the totality of the circumstances, including the nature and purpose of the search, the extent to which the search intrudes upon the reasonable privacy and expectations of that party who is searched. [¶] [Defendant] has a significantly reduced expectation of privacy based upon his status as a parolee. He has a reduced expectation of privacy as a result of the conditions that were placed upon him, including GPS monitoring and search and seizure upon the time of his release where law enforcement officers are entitled in a . . . nonarbitrary and noncapricious and reasonable way to enter both his home, search his car, search his person. [¶] That level of intrusiveness is a significant one, and permits law enforcement to enter the very places the defendant would retreat to, to be alone. [¶] They can search areas within his residence. They are entitled to search places within his car. They are entitled to search his pockets, as long as they do so in a way that's not arbitrary, capricious, and harassing. [¶] The level of intrusiveness on a GPS monitor, while constantly providing information, provides almost no intrusiveness. We release people on a daily basis from custody, on condition that they permit us to know where they are at, so they are either confining themselves to their home. [¶] We have a lot of people now that are confined to jail, rather than serve their time in a custodial facility, to accept GPS monitoring and remain in their home during times except work hours, perhaps, where they are entitled to travel to and from work and enjoy some of the benefits of freedom as opposed to be incarcerated. [¶] [Defendant] is really no different - - actually, he is different. Because he has a reduced expectation of privacy, even below those folks as a result of his condition as a parolee. [¶] Whether the placement of the GPS monitoring and having access to that information is reasonably related to the concerns of society as a result of the primary criminality, that being, first of all, child molest, and secondarily, 290 registration violations - - well, the mere fact that on 290, requires him not to do things that he is required to do, that is, inform folks where he is and where he is residing, it demonstrates we have an exceptional need for a particular person just like him to know where he is. Because he does not comply with the law, that requires him to inform us on a voluntary basis of his location, residence, and things such as that. That's why he got convicted of a 290. [¶] So in [defendant's] particular circumstances, not only was this search a reasonable one, if it was a search at all, but it was one completely connected, that is, the placement of the GPS; and, therefore, the access to that information to law enforcement; ultimately, a perfectly reasonable and appropriate method for addressing his prior criminality. So the motion to suppress . . . is denied."
2. Analysis
"A defendant may move to suppress evidence on the ground that '[t]he search or seizure without a warrant was unreasonable.' [Citation.] A warrantless search is presumed to be unreasonable, and the prosecution bears the burden of demonstrating a legal justification for the search. [Citation.] 'The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]' [Citations]." (People v. Redd (2010) 48 Cal.4th 691, 719, fn. omitted.)
"A warrantless search is unreasonable under the Fourth Amendment unless it is conducted pursuant to one of the few narrowly drawn exceptions to the constitutional requirement of a warrant. [Citations.] California's parole search clause is one of those exceptions. [Citation.]" (People v. Schmitz (2012) 55 Cal.4th 909, 916.)
"Both [the California Supreme Court] and the United States Supreme Court have concluded that [parole] searches are reasonable, so long as the parolee's status is known to the officer and the search is not arbitrary, capricious, or harassing. [Citations.]" (People v. Schmitz, supra, 55 Cal.4th at p. 916.) "[A] parolee does not have a legitimate expectation of privacy that would prevent a properly conducted parole search. [Citations.]" (Id. at p. 917.) "Warrantless, suspicionless searches are a vital part of effective parole supervision [citations], and are mandated in California as a condition of every parolee's release [citations]." (Id. at p. 924.)
In People v. Reyes (1998) 19 Cal.4th 743, the California Supreme Court concluded that "a parole search may be reasonable despite the absence of particularized suspicion." (Id. at p. 753.) The court explained: "The level of intrusion is de minimis and the expectation of privacy greatly reduced when the subject of the search is on notice that his activities are being routinely and closely monitored. Moreover, the purpose of the search condition is to deter the commission of crimes and to protect the public, and the effectiveness of the deterrent is enhanced by the potential for random searches." (Ibid.) The court held that "even in the absence of particularized suspicion, a search conducted under the auspices of a properly imposed parole search condition does not intrude on any expectation of privacy 'society is "prepared to recognize as legitimate." ' [Citations.]" (Id. at p. 754.) However, the court noted that parole searches have constitutional limits: " '[A] parole search could become constitutionally "unreasonable" if made too often, or at an unreasonable hour, or if unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct by the searching officer.' [Citations.]" (Id. at pp. 753-754; see In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004 [a search is arbitrary and capricious when the motivation for the search is unrelated to rehabilitative, reformative or legitimate law enforcement purposes, or when the search is motivated by personal animosity toward the parolee].)
In Samson v. California (2006) 547 U.S. 843 (Samson), which involved the suspicionless search of a California parolee, the United States Supreme Court held that "the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee." (Id. at p. 857.) The Supreme Court began its analysis by explaining: " '[U]nder our general Fourth Amendment approach' we 'examin[e] the totality of the circumstances' to determine whether a search is reasonable within the meaning of the Fourth Amendment. [Citation.] Whether a search is reasonable 'is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.' [Citation.]" (Id. at p. 848.)
The Supreme Court recognized that "parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment." (Samson, supra, 547 U.S. at p. 850.) "Examining the totality of the circumstances pertaining to petitioner's status as a [California] parolee, 'an established variation on imprisonment,' [citation], including the plain terms of the parole search condition, [it] conclude[d] that petitioner did not have an expectation of privacy that society would recognize as legitimate." (Id. at p. 852, fn. omitted.)
In contrast, the Supreme Court recognized that California's state interests were substantial, stating: "This Court has repeatedly acknowledged that a State has an ' "overwhelming interest" ' in supervising parolees because 'parolees . . . are more likely to commit future criminal offenses.' [Citation.] Similarly, this Court has repeatedly acknowledged that a State's interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment. [Citation.]" (Samson, supra, 547 U.S. at p. 853.)
In rejecting the notion that California's suspicionless search system gives officers unbridled discretion to conduct searches, the Supreme Court emphasized that California prohibits arbitrary, capricious, or harassing searches. (Samson, supra, 547 U.S. at p. 856, fn. omitted.)
Here, even assuming that a search occurred under the Fourth Amendment, as defendant contends, we conclude the trial court properly denied his motion to suppress. Under the totality of the circumstances, the search of the data in defendant's ankle monitor was reasonable. At the time of the search, defendant's reasonable expectation of privacy was significantly diminished; he was subject to continuous electronic monitoring and suspicionless searches as conditions of his parole following his conviction for failing to register as a sex offender. Law enforcement obtained the data from his ankle monitor because he lived in close proximity to where a young child had been kidnapped by a stranger. The obvious purpose of obtaining this information was to determine defendant's location at the time of the kidnapping. There was nothing arbitrary, capricious, or harassing about the search. To the contrary, the search was limited in nature and conducted for a legitimate law enforcement purpose—investigation of the kidnapping. Further, the search did not intrude on any expectation of privacy society recognizes as legitimate. Under these circumstances, the search did not violate the Fourth Amendment.
In view of our determination that the Fourth Amendment was not violated, we will not consider defendant's alternative argument under the inevitable discovery doctrine.
B. Defendant's Proposed DNA Expert
Defendant contends the trial court erred in prohibiting his proposed DNA expert from observing the DNA analysis conducted by the district attorney's crime lab on the hair found in the trunk of his car. He argues that the court's exclusion of his proposed expert on the ground the expert was an attorney employed by the public defender's office was arbitrary and violated his constitutional rights, including his right to present a defense, confront evidence against him, and effective assistance of counsel. We find no prejudicial error.
1. Additional Background
Prior to trial, defendant filed a motion to prevent the prosecution from destroying potentially exculpatory evidence by consuming it for DNA testing. The motion was based on defendant's constitutional right to present a defense and to effective assistance of counsel. Defendant argued that, absent an evidentiary hearing in which the prosecution established that consumption of the DNA sample taken from his trunk was necessary and did not prejudice his rights, the court should not allow the evidence to be consumed by DNA testing.
At the hearing on the motion, the prosecutor indicated that it was her understanding the DNA sample would be consumed by the testing. Defense counsel stated that he wanted his DNA expert—probably his "DNA attorney"—to be present during the testing to make suggestions regarding the testing procedure, and to determine whether the DNA sample could be split so that the defense could independently test it. Defense counsel advised the court that the prosecutor had offered to allow a defense expert to observe the testing, but noted that it was likely the prosecutor would object to defendant's chosen expert, an attorney in the public defender's office. The prosecutor confirmed that she objected to the presence of defendant's chosen expert, explaining that the expert was barred from the crime lab as a matter of policy. The prosecutor noted that she had complied with case law by extending an invitation to "an actual DNA expert" to observe the testing. The trial court ruled that, if the DNA sample would be consumed by the testing, a scientific expert retained by the defense could observe the testing, but attorneys would not be permitted. The court stated that the defense could independently test the sample if there was sufficient evidence to conduct a second test. Defense counsel indicated that he would consult with his "DNA people" and get back to the court about whether the defense would have a scientific expert observe the DNA testing.
The policy states: "Defense attorneys are not authorized to accompany scientific experts visiting the laboratory." --------
Following this hearing, defendant filed a second motion to prevent the prosecution from destroying potentially exculpatory evidence by consuming it for DNA testing. The papers filed in connection with this motion revealed that the evidence which would be tested for DNA was the hair found in defendant's trunk, and that the testing would fully consume the DNA evidence from the hair. At the hearing on the second motion, defense counsel stated (as he indicated in his papers) that he was no longer seeking an order preventing the prosecution from destroying potentially exculpatory evidence by consuming it for DNA testing. He also told the trial court that the defense would not retain a "traditional DNA scientist expert." However, he renewed his request for permission to allow an attorney from his office to observe the DNA testing. He explained that his expert would observe the testing for the purpose of advising him on questions to ask the criminalist at trial. He further explained that he did not intend to call the expert as a witness. The prosecutor objected to defense counsel's request on the same grounds as she stated at the prior hearing. The prosecutor also added that there was a potential for conflict if an issue with the DNA testing arose.
In prohibiting the defense's chosen expert from observing the DNA testing, the court reasoned that a conflict of interest could arise if the crime lab's testing procedure was challenged. The court explained that the expert could be called as a witness by the defense if he disagreed with the methodology of the crime lab, or he could be called as a percipient witness in support of the prosecution. The court further reasoned that while the expert had great knowledge as a lawyer, he was not a scientific expert.
2. Analysis
Case law is clear, and the parties do not dispute, that where, as here, there exists only one sample of evidence, which will be consumed in its entirety during testing by the prosecution, the defense has no right to test the sample independently, although the better practice is to offer the defense the ability to be present at the testing. (People v. Varghese (2008) 162 Cal.App.4th 1084, 1094, citing People v. Griffin (1988) 46 Cal.3d 1011, 1019-1023 (Griffin).) In Griffin, our Supreme Court explained that while it is the "better practice" for the prosecution to allow a defense expert to be present when a test will consume all of the evidence, this practice "has not been established as a constitutional requirement." (Griffin, at p. 1021, fn. 2.)
Here, defendant concedes that the prosecutor offered to allow a DNA expert to be present during the DNA testing of the hair found in the trunk of his car, but argues the trial court erred because it did not allow his chosen DNA expert to observe the testing. Defendant offers no authority holding that he had the right to have his chosen DNA expert present during the testing. Nor has he shown that the trial court erred in prohibiting his chosen expert from observing the testing. In any event, even assuming error, and further assuming the DNA evidence should have been excluded, the error was harmless under any standard of prejudice given the overwhelming evidence of defendant's guilt. (See People v. Watson (1956) 46 Cal.2d 818 [reasonably probable standard]; Chapman v. California (1967) 386 U.S. 18 [beyond a reasonable doubt standard].)
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, J. We concur: /s/_________
Raye, P. J. /s/_________
Murray, J.