Opinion
A147589
05-31-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN PIZANO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-644461)
Defendant Juan Pizano pleaded no contest to shooting at an occupied vehicle (Pen. Code, § 246) and burglary (§ 459). He was subsequently sentenced to 18 years and eight months in prison. His sole contention on appeal is that the trial court erred in denying his motion to suppress evidence, namely a cell phone, found in the search of a vehicle. We conclude defendant had no reasonable expectation of privacy in the car or, initially in the cell phone, and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
We confine our discussion of the facts to only those relevant to the single issue on appeal.
While police officers were conducting surveillance of the residence of Destiny Mahaney, defendant's girlfriend, they saw defendant and two other men, each known to be Norteño gang members, sitting on the trunk of a Honda parked in the driveway. The officers then saw Mahaney pull up in a Ford Fiesta with Dodge dealership paper plates and park behind the Honda.
Officer Josh Peña was aware defendant was subject to probation and parole search conditions and asked other officers to make contact with defendant. Officer George Weaver responded, and Peña told him defendant was on active probation and parole. Defendant, upon seeing the officers, went inside the house.
When Officer Weaver ran a vehicle check on the Ford Fiesta, it came back as reported stolen, and the description of the car matched a vehicle used in a December 10 residential burglary in Santa Rosa. After performing a cursory check of the inside, he noticed a shell casing in the backseat and a bullet hole in the passenger-side door.
Officer Weaver also ran a vehicle check on the Honda. It indicated the registered owner was not a resident at Mahaney's address. Weaver then made a cursory check of that car, which was unlocked, "to see if it was possibly an unreported stolen vehicle" or "to see if [he] could ID who possibly owned the vehicle" because "plates are switched" as well as VINs (vehicle identification number). He found a black cell phone on the passenger seat. Flipping it open, he saw a picture of Mahaney. He then turned the phone over to Officers Peña and Logan.
The officers later showed the phone to Mahaney. She said it belonged to defendant, and defendant, while later being questioned at the police station, claimed it was his. A search of the phone led to evidence connecting defendant to the December 10 residential burglary.
After a preliminary hearing, defendant was charged by information with attempted murder (§§ 664, 187, subd. (a)—count 1) a serious felony (§ 1192.7, subd. (c)(28), shooting at an occupied vehicle (§ 246—count 2), assault with a deadly weapon likely to produce great bodily injury (§ 245—count 3), robbery (§ 211—count 4) and burglary (§ 459—count 5). It was further alleged these crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C), (4)) and that defendant personally used a firearm in the commission of counts 1, 3, 4, and 5 (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c), & (e)(1)). Defendant was also charged with felony possession of a firearm (§ 29800, subd. (a)(1)—count 6) and felony receipt of stolen property (§ 496d, subd. (a)—count 7) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). It was additionally alleged he suffered a prior strike conviction (§ 1170.12), prior serious felony (§ 667, subd. (a)(1)), and a prior prison conviction (§ 667.5, subd. (b)).
Defendant filed a section 995 motion to dismiss counts 2 and 4, as well as the section 12022.5, subdivision (a), enhancement as to counts 3 and 5. The People opposed, and the trial court denied the motion.
Defendant also moved to suppress "all evidence obtained in violation of his Fourth Amendment rights." (§ 1538.5.) At the conclusion of the hearing, the trial court stated: "I don't think there's any evidence that Mr. Pizano had ownership or control of the car, other than he was sitting on the trunk and it was registered to another owner. [¶] I'm going to find he doesn't have standing to bring this motion . . . ." Accordingly, the court denied the motion and set the matter for trial.
Defendant subsequently pleaded no contest to counts 2 and 5 and admitted the related enhancements as to those counts (§§ 1170.12, 186.22, subd. (b)(1)(C)). The remaining counts were dismissed.
DISCUSSION
At oral argument, counsel reiterated that defendant is challenging only the search of the Honda and the officers' initial opening of the cell phone to determine who owned it. He is not challenging the full search of the phone, which occurred later, after he told the officers during an interview at the police station that the phone was his (nor did he make any such challenge during the trial court proceedings).
"In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's factual findings, express or implied, where supported by substantial evidence. And in determining whether, on the facts so found, the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, we exercise our independent judgment." (People v. Simon (2016) 1 Cal.5th 98, 120; People v. Glaser (1995) 11 Cal.4th 354, 362.)
"The Fourth Amendment protects an individual's reasonable expectation of privacy against unreasonable intrusion on the part of the government." (People v. Jenkins (2000) 22 Cal.4th 900, 971.) However, the Fourth Amendment is not implicated unless a defendant can " 'demonstrate that he personally ha[d] an expectation of privacy in the place searched, and that his expectation is reasonable.' " (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1196.) Thus, the threshold issue is "whether the defendant, rather than someone else, had a reasonable expectation of privacy in the place searched or the items seized." (People v. Ayala (2000) 23 Cal.4th 225, 254, fn. 3.)
While sometimes phrased as whether a defendant has "standing" to challenge the search, our Supreme Court has cautioned against using the term " 'standing' in its Fourth Amendment analyses," as opposed to discussing the inquiry of "whether the defendant, rather than someone else, had a reasonable expectation of privacy in the place searched or the items seized." (People v. Ayala, supra, 23 Cal.4th at p. 254, fn. 3.)
In the trial court, defendant's argument was essentially that the officers could not rely on his probation and parole search conditions to justify the search of the Honda or the initial opening of the cell phone because there was no evidence, at the time of the search, that he owned or controlled either the car or the phone. According to defendant, any probation or parole search could extend only to items in which he had a possessory interest, and, since there was no evidence of such as to the car and, initially, as to the cell phone, the officers could not rely on the search conditions.
The prosecution maintained defendant was overlooking the threshold issue of whether there was any evidence that at the time of the search he had a reasonable expectation of privacy in the Honda and, initially, in the cell phone. If the court found he did not, then defendant could not make any Fourth Amendment claim. And even if the court found defendant did have a reasonable expectation of privacy in the Honda and, initially, the cell phone, the prosecution alternatively asserted the searches were proper probation searches, as the officers were aware, at the time, that he was subject to full, parole search conditions.
The record amply supports the trial court's finding that defendant had no reasonable expectation of privacy in the Honda and therefore lacked standing to challenge the search of the car and the initial look at the cell phone. Factors used to consider whether a defendant had an expectation of privacy in the particular area searched or in the thing seized include " ' " 'whether the defendant has a [property or] possessory interest in the thing seized or the place searched; whether he has the right to exclude others from that place; whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises.' " ' " (People v. Shepherd (1994) 23 Cal.App.4th 825, 828-829 (Shepherd) [no reasonable expectation of privacy in purse defendant left in a stolen car].) None of these factors existed here. The Honda was not registered to defendant, nor did the person to whom it was registered live at the address where the car was located. In short, his mere proximity to the Honda did not compel the trial court to find that he had a reasonable expectation of privacy or possessory interest in it or, in turn, any items therein, even if one of those items belonged to him. (See People v. Daggs (2005) 133 Cal.App.4th 361, 364-365 [no reasonable expectation of privacy in cell phone defendant "locked" but dropped in store during robbery]; People v. Juan (1985) 175 Cal.App.3d 1064, 1067-1069 [no reasonable expectation of privacy in jacket defendant left at restaurant]; People v. Root (1985) 172 Cal.App.3d 774, 778-779 [no reasonable expectation of privacy in plastic bag defendant put in another's car that was driven away].)
Defendant contends Shepherd is distinguishable because in that case the defendant left her purse in a stolen car, but, here, the Honda "was not stolen and [defendant] had no reason to believe that it was." However, whether or not the Honda was stolen is not determinative of defendant's dominion or control of the car, required to give him a reasonable expectation of privacy in the car and, in turn, the items in it, including items he may have owned. As defendant, himself, advocated in the trial court, there was considerable evidence—sufficient to support the trial court's finding—that he had no reasonable expectation of privacy in the car and, thus, no reasonable expectation of privacy in the items in it. (See People v. Dachino (2003) 111 Cal.App.4th 1429, 1432 ["A person's expectation of privacy in a place where the police seize an item is the same whether the person admits or denies ownership of the item."].)
Switching gears from the position he advocated in the trial court, defendant now argues the mere fact his cell phone was found within the car was sufficient to establish an expectation of privacy, giving him standing and enabling him to, at least, challenge the search of the phone. Defendant cites to In re Jaime P. (2006) 40 Cal.4th 128 and People v. Sanders (2003) 31 Cal.4th 318. Neither of these cases, however, has anything to do with the threshold reasonable expectation of privacy inquiry. Rather, they dealt with whether officers must be aware of a defendant's probation or parole search condition before a search is conducted in order to justify it on that basis.
Nor does People v. Dees (1990) 221 Cal.App.3d 588, 598, which defendant also cites, suggest the trial court erred in finding he lacked the requisite privacy interest necessary to challenge the search of the Honda and initial look at the cell phone. In Dees, the defendant was charged with various possession offenses (of a controlled substance, drug paraphernalia, and owning a concealable firearm) after a search of a car that he had said that he owned. (Id. at pp. 590-593.) His testimony at the suppression hearing, however, suggested he did not own the car. The trial court ruled the defendant's out-of-court assertion of ownership did not establish standing, and it denied his motion to suppress. (Id. at p. 593.) In defendant's appeal from his ensuing convictions, the prosecution argued, on the one hand, that the defendant's denial of ownership of the car at the hearing supported the denial of the motion to suppress, and argued, on the other hand, that his out-of-court statement of ownership supported his possession convictions. (Id. at pp. 597-598.) The Court of Appeal reversed, concluding "the People are estopped" from arguing the defendant did not carry his burden to prove he had standing when they "conceded" his connection to the car to indicate his guilt of the possession crimes. (Id. at p. 598.) Here, however, the People have not made any such contradictory arguments. The prosecution never conceded that defendant had any privacy interest in the Honda or, initially, in the cell phone. And, on appeal, the People continue to maintain defendant had no reasonable expectation of privacy in "an unlocked, unoccupied car that did not belong to him." For the reasons we have discussed, we agree.
Given that substantial evidence supports the trial court's finding that defendant lacked a reasonable expectation of privacy in the Honda and the cell phone in it, we need not, and do not, consider any other issue as to the search of the Honda and the initial opening of the cell phone.
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.