Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA098295. John J. Cheroske, Judge.
Randy S. Kravis, 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, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
INTRODUCTION
After the trial court denied appellant’s renewed motion to suppress evidence surrounding the police officer search of his vehicle and his subsequent arrest, the prosecutor amended the information, and appellant pled nolo contendere to being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), possession of marijuana for sale (Health & Saf. Code, § 11359), and resistance or obstruction of a peace officer (2 counts; § 148). The trial court placed appellant on probation. Appellant contends that the suppression motion was improperly denied and that his constitutional rights were violated by conditions of probation. We strike an oral condition that the probation officer must approve appellant’s place of residence and otherwise affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Los Angeles Police Officer James Grace and his partner approached appellant and asked if they could speak with him. Appellant replied in the affirmative, and Officer Grace asked if appellant was on probation or parole. Appellant said that he was on probation and provided his name. Using a mobile digital computer, Officer Grace’s partner verified that appellant was on active felony probation, and learned that appellant was subject to a search and seizure condition. Officer Grace’s partner searched appellant and found a set of keys, including a car key. Officer Grace asked if appellant had a car, and appellant indicated a car parked a few feet away. The key fit all the car doors and its ignition. Officer Grace’s partner searched the car, discovering a nine-millimeter semiautomatic handgun, $718 in cash, and 157.53 grams of marijuana packaged in orange peels, which an expert witness testified was a common method of masking the marijuana odor. Officer Grace’s partner signaled to handcuff appellant, and Officer Grace told appellant to put his hands behind his back. Appellant attempted to flee, but Officer Grace and his partner managed to take appellant to the ground. Appellant attempted to strike both Officer Grace and his partner with closed fists and twice bit Officer Grace on the hand. Officer Grace’s partner suffered lacerations during the struggle. Appellant was subdued after being “tasered.”
In his defense, appellant testified that he was walking down the street speaking on a cell phone when the officers pulled up beside him and, when they got out of their car, they immediately told him to place his hands behind his back. This all occurred before appellant spoke to them at all. Appellant further testified that Officer Grace and his partner searched appellant before discovering he was on probation. Appellant testified that the officers threw him to the ground and began to beat him, at which time he “blacked out” before being tasered. Appellant denied having either the marijuana or the handgun in his car.
The People initially charged appellant with assault on a peace officer by force likely to produce great bodily injury (count 1; § 245, subd. (c)), battery with injury on a peace officer (counts 2, 3; § 243, subd. (c)(2)), resisting an executive officer (counts 4, 5; § 69), possession of a firearm by a felon (count 6; § 12021, subd. (a)(1)), transportation of marijuana (count 7; Health & Saf. Code, § 11360, subd. (a)), and possession of marijuana for sale (count 8; Health & Saf. Code, § 11359). Appellant pled not guilty to all counts.
Appellant moved to suppress evidence discovered during the search pursuant to section 1538.5. The People stipulated that there was no warrant for the search. The magistrate denied appellant’s motion and made factual findings consistent with police officer testimony, specifically that the search had occurred after the officers ascertained appellant’s probationary status and the search and seizure condition. In the trial court, appellant renewed his motion to suppress the evidence. The court reviewed the preliminary hearing transcript and denied appellant’s motion, finding that there was sufficient evidence to support the magistrate’s findings.
Following these proceedings, the People amended the information, dismissing the five counts of assault, battery with injury on a police officer, and resisting an executive officer, and adding two misdemeanor counts of obstructing a peace officer (counts 9, 10; § 148, subd. (a)(1)). Following the amendment, appellant pled nolo contendere to the five remaining counts. The trial court placed appellant on three years’ probation, with the conditions, inter alia, that appellant seek and maintain training, schooling, or employment as approved by the probation officer and that he keep the probation officer apprised of his residence and contact information.
DISCUSSION
I. Appellant’s motion to suppress evidence was properly denied.
Appellant challenges the trial court’s denial of his motion to suppress evidence discovered during the search on two grounds: (1) that the prosecutor failed to provide sufficient justification for the search by failing to introduce evidence of the exact terms of the search condition; and (2) that People v. Bravo (1987) 43 Cal.3d 600, the California Supreme Court case authorizing suspicionless searches of probationers, has been “effectively overruled” by subsequent case law.
A defendant may move at a preliminary hearing to suppress evidence under section 1538.5, subdivision (i). If the motion is denied, it can be renewed in the trial court, which is bound by the magistrate’s findings where they are supported by substantial evidence. (§ 1538.5, subd. (i).) On appeal, the fundamental inquiry is whether the express or implied factual findings of the magistrate are supported by substantial evidence. (People v. Ramsey (1988) 203 Cal.App.3d671, 679; accord, People v. McDonald (2006) 137 Cal. App.4th 521, 529.) Following that determination, the appellate court independently reviews the applicable law and applies it to the factual findings. (People v. Ramsey, supra, at p. 679.)
Applying this standard to the instant case, we agree with the trial court. The magistrate was presented with very divergent testimony and found that the officers had engaged appellant in consensual conversation, ascertained his probationary status from that conversation, and confirmed that status and appellant’s search and seizure condition from their mobile digital computer prior to executing the search. We find that substantial evidence supports the magistrate’s finding that the encounter was consensual and that the search occurred after the officers ascertained appellant’s probationary status.
The defendant has the initial burden of making a prima facie showing that the police acted without a warrant, after which the burden shifts to the People to show some justification for the search, and, upon such a showing, it shifts back to the defendant to point out any inadequacies in the People’s justification. (People v. Williams (1999) 20 Cal.4th 119, 136.)
At the hearing on appellant’s suppression motion, the People stipulated that there was no warrant for the search, but justified the search by demonstrating that appellant had consented to a search and seizure condition to his existing felony probation. Following this showing, the burden shifted back to appellant to demonstrate any inadequacies in the justification. Appellant’s sole response was to deny that the encounter had been consensual and to deny that the officers knew of appellant’s search condition prior to conducting the search. Appellant did not deny that his probation conditions would have justified the search at the suppression hearing. As such, it was never in issue before the magistrate, and is forfeited on appeal. (See People v. Williams, supra,20 Cal.4th at p. 136 [“Defendants who do not give the prosecution sufficient notice of these inadequacies cannot raise the issue on appeal”].)
In his reply brief, appellant contends that his argument at the suppression hearing sufficiently raised the issue before the magistrate. Appellant, who was in propria persona, argued that the prosecution had not shown that the police had justification, in the form of a search condition, to look for drugs or drug paraphernalia. Appellant further argued that the prosecution had not produced testimony from Officer Grace demonstrating that the police had cause to look for any “specific item.” Appellant contends that this is an argument that the search exceeded any scope to which he had consented.
This argument is unpersuasive, however, because appellant did not raise the issue of the scope of his probationary consent, but simply argued that there was no evidence of a search condition which would have led the officers to look specifically for drugs or drug paraphernalia. During appellant’s argument, the magistrate interrupted appellant and told him that he was unaware of any search conditions attached to probation that were not simply generalized consent to searches with or without suspicion or probable cause, to which appellant replied, “[y]es.” We therefore determine that appellant did not demonstrate any deficiency in the People’s justification for the warrantless search.
In People v. Bravo, supra, 43 Cal.3d at pages 607, 609-610, the California Supreme Court held that police do not need any sort of suspicion to search a probationer who has consented to a search condition. Appellant contends that subsequent case law has “effectively overruled” Bravo in this respect, arguing that some sort of suspicion of criminal activity is required for such a search to be valid. In short, none of the authorities appellant cites support the proposition that a probationer’s expectation of privacy disallows suspicionless searches. As such, we find appellant’s contention unavailing.
Appellant cites two United States Supreme Court cases to support his argument. The first, United States v. Knights (2001) 534 U.S. 112, expressly declined to reach the question of whether suspicionless searches pursuant to probation conditions violate the Fourth Amendment. (Id. at p. 120, fn. 6.) In the second case, Samson v. California (2006) 547 U.S. 843, the Supreme Court held that suspicionless searches of parolees did not violate the Fourth Amendment but drew occasional distinctions between the reasonable privacy expectations of probationers and parolees. At no point in Samson did the Supreme Court address the constitutionality of suspicionless searches of probationers; in fact, the Court cited Bravo with approval. (See Samson, at p. 856.) Finally, appellant contends that the California Supreme Court’s approval of the distinction between the privacy expectations of parolees and probationers in In re Jaime P. (2006) 40 Cal.4th 128 suggests that the California Supreme Court has abandoned the Bravo rule. The essential holding of Jaime P., however, is only that a police officer must be aware of a probationer’s search condition prior to executing such a search (In re Jaime P., supra, at p. 130), which the officers were in the instant case.
II. Appellant’s constitutional rights are not violated by the conditions of his probation.
Appellant challenges the conditions of his probation which require that he seek and maintain training, schooling, or employment as approved by the probation officer, and that he keep the probation officer apprised of his residence and contact information. Appellant contends that these conditions are unconstitutionally restrictive.
At the time of oral pronouncement, the trial court stated this condition somewhat differently, stating that the probation department would have to approve where appellant lived. This condition was not included in the final order.
Appellant failed to object to the conditions of his probation at sentencing, so any consideration of the conditions’ relation to the facts of the case or appellant’s personal history is forfeited on appellate review. (See People v. Welch (1993) 5 Cal.4th 228, 233.) However, facial challenges of constitutionality are not forfeited for failure to object at sentencing. (See In re Sheena K. (2007) 40 Cal.4th 875, 888-890.) Accordingly, we analyze appellant’s claim only insofar as he challenges the constitutionality of his probation conditions.
Probation conditions may infringe on a probationer’s constitutional rights, as long as they are narrowly drawn to serve the interests of public safety and rehabilitation. (People v. Keller (1978) 76 Cal.App.3d827, 839, overruled on other grounds by People v. Welch, supra,5 Cal.4th at p. 237.) The right to associate may be curtailed by a probation condition if it is “‘(1) primarily designed to meet the ends of rehabilitation and protection of the public and (2) reasonably related to such ends.’” (People v. Lopez (1998) 66 Cal. App.4th 615, 628.)
It is reasonable to conclude that the conditions imposed on appellant are primarily designed to further his rehabilitation. Moreover, the relation between the conditions and those rehabilitative goals is reasonable, to the extent they are not arbitrarily enforced. We find that it is implicit in the imposed conditions that the probation officer not unreasonably or unconstitutionally withhold approval of appellant’s decisions and, as such, that the conditions are not facially unconstitutional.
However, insofar as the probation order may be said to have a condition that allows the probation officer to unilaterally decide where appellant may live, that provision is stricken from the probation order in accordance with People v. Bauer (1989) 211 Cal.App.3d937.
DISPOSITION
Insofar as the probation order may be said to have a condition regarding probation officer approval of appellant’s place of residence, it is stricken from the probation order. In all other respects, the judgment (order granting probation) is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.