Filed 11/5/13 P. v. Sanders CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055814
v. (Super.Ct.No. FSB1103612)
BJ SANDERS III, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Richard V. Peel,
Bridgid M. McCann, and Annemarie Pace, Judges.1 Affirmed in part, reversed in part,
and remanded with directions.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Judge McCann ruled on defendant’s motion to suppress, Judge Peel presided 1 over defendant’s jury trial, and Judge Pace presided over the trial on defendant’s priors.
1 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and James D. Dutton and
Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial defendant BJ Sanders III was convicted of possession of
marijuana (Health & Saf. Code, § 11359, count 1) and possession of a firearm by a felon
(Pen. Code,2 former § 12021, subd. (a)(1), count 2). In a bifurcated proceeding the trial
court found true the allegations that defendant suffered three prison priors. Defendant
was sentenced to 199 days in county jail on count 1, for which he received credit for time
served. On count 2 he was sentenced to three years in state prison, plus three consecutive
years for the prior prison terms, for a total sentence of six years. Defendant appeals,
contending the trial court erred in denying his motion to suppress and the trial judge erred
in failing to disqualify himself upon learning that he was the prosecutor on one of
defendant’s prior cases.
I. FACTS
On August 7, 2011, San Bernardino Police Officer Jason Heilman and his partner,
Officer Byron Clark, conducted a traffic stop of defendant’s vehicle in the parking lot of
an apartment complex. Defendant told the officer that he was living with his girlfriend in
an apartment at the complex. Officer Heilman obtained a key to the apartment, knocked,
opened the door and announced his presence. A search of the residence produced a
2 Penal Code, former section 12021, subdivision (a)(1) was repealed operative January 1, 2012, but its provisions were reenacted without substantive change as Penal Code section 29800, subdivision (a)(1).
2 loaded firearm, marijuana and a digital scale. Defendant was interviewed and admitted
the marijuana and firearm belonged to him.
II. MOTION TO SUPPRESS
Defendant contends the trial court erred when it denied his motion to suppress
evidence. He claims that (1) the search, which was pursuant to a parole search term, was
arbitrary, capricious and unduly oppressive, and (2) there was insufficient evidence to
establish that the officers were aware that defendant’s parole terms subjected him to a
suspicionless search.
A. Further Background Information
Prior to trial, defendant moved to suppress evidence pursuant to Penal Code
section 1538.5. At the hearing, Officer Heilman testified that he conducted a traffic stop
of defendant’s car at an apartment complex for failure to use a turn signal. Defendant
identified himself and stated that he was on parole. He also stated that he lived in the
apartment complex. Officer Heilman verified defendant’s parole status and conducted a
search of the vehicle and the apartment. The officer called for assistance to conduct a
parole compliance check of the apartment while his partner stayed with defendant and the
vehicle.
Upon entering the apartment, defendant’s girlfriend, Giovanna Funches, identified
the bedroom that belonged to her and defendant. Officer Heilman discovered marijuana,
a digital scale, and a loaded firearm in the closet of the bedroom. Marijuana was also
found in the kitchen on top of the refrigerator.
3 On cross-examination, Officer Heilman testified that Funches was approximately
five feet from the door when he opened it and stated he was conducting a parole search.
Police went through all the rooms and drawers and checked under the bed and mattress.
The search of the bedroom took 15 to 20 minutes. The initial stop occurred after Officer
Heilman observed defendant turning from Date Street into the parking lot of the
apartment complex. There was a male passenger with defendant. Officer Heilman’s
partner dealt with the passenger. It took one or two minutes to run the status of both
defendant and his passenger through the system. It took approximately 10 minutes to
search defendant’s vehicle. During this time defendant was handcuffed. Nothing illegal
was discovered in the vehicle. It took an additional five to 10 minutes to wait for backup
so that Officer Heilman could conduct a parole compliance check on defendant’s
residence. Defendant was placed in the back of the patrol car, while Officer Heilman and
two other officers searched the unit. From the time of the initial stop to the time of
approaching the apartment was “15, 20 minutes.”
Using a key, Officer Heilman entered the apartment. He saw marijuana on top of
the refrigerator in plain view upon entering. Approximately two to five minutes into the
initial search of the bedroom, the officers found marijuana and a firearm. The overall
search of the apartment took 20 to 30 minutes. Normally, it takes approximately five
minutes to issue a citation for a traffic stop.
B. Standard of Review
When a trial court rules on a motion to suppress evidence, it “‘“(1) finds the
historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the
4 former to determine whether the rule of law as applied to the established facts is or is not
violated. [Citations.] . . . [¶] The court’s resolution of the first inquiry, which involves
questions of fact, is reviewed under the deferential substantial-evidence standard.
[Citations.] Its decision on the second, which is a pure question of law, is scrutinized
under the standard of independent review. [Citations.] Finally, its ruling on the third,
which is a mixed fact-law question that is however predominantly one of law, . . . is also
subject to independent review.” [Citation.]’ [Citations.]” (People v. Carter (2005) 36
Cal.4th 1114, 1140.)
C. Search of Defendant’s Home
Defendant argues that the “parole search of his home was arbitrary, capricious,
and conducted in an oppressive manner because the detention was unreasonably
prolonged; [he] was left handcuffed in a patrol car outside; officers seized his keys
without giving him an opportunity to consent; and they opened his front door without
giving the residents any opportunity to refuse or consent to the officer[’]s admittance.”
He challenges being handcuffed in the back of the patrol car while Officer Heilman
searched the apartment when the officer “had no reason to believe that [defendant] had
done anything wrong except fail to use his turn signal.” Further, he challenges the
officer’s announcement of his presence while simultaneously entering the apartment. To
the extent defendant failed to challenge the taking of his keys and the lack of knocking
and announcing the officer’s presence prior to entering the apartment at the trial level in
his suppression motion, these issues are forfeited. (People v. Williams (1999) 20 Cal.4th
119, 123, 130.) Moreover, the contentions lack merit.
5 The United States Supreme Court has concluded that “the Fourth Amendment
does not prohibit a police officer from conducting a suspicionless search of a parolee.”
(Samson v. California (2006) 547 U.S. 843, 857.) “Where the search is for a proper
purpose, . . . 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.]”
(People v. Reyes (1998) 19 Cal.4th 743, 754 (Reyes).) However, this “does not mean
parolees have no protection.” (Id. at p. 753.) Instead, “‘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.)
“The validity of a search does not turn on ‘the actual motivations of individual
officers.’ [Citation.] But whether a search is reasonable must be determined based upon
the circumstances known to the officer when the search is conducted.” (People v.
Sanders (2003) 31 Cal.4th 318, 334.) “Where the motivation is unrelated to rehabilitative
and reformative purposes or legitimate law enforcement purposes, the search is
‘arbitrary.’ For example, had the officer been motivated by personal animosity toward
[defendant] or his family, execution of the ‘consent search term’ would be ‘arbitrary.’”
(In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004.)
Here, the search of defendant’s apartment was not unreasonable. The officers
knew about defendant’s parole status, which authorized them to detain and search him
pursuant to his parole search condition. (Reyes, supra, 19 Cal.4th at p. 754.) The search
6 was not unduly prolonged, it was not performed at an unreasonable time, and there is no
evidence it was an attempt to harass defendant. The fact that the officers handcuffed
defendant throughout much of the encounter is easily explained, given the presence of
defendant and his passenger and the need for one officer to watch both men. Upon
learning of defendant’s parole status, and that he lived in the apartment complex where
he was stopped, the officers were legally permitted to search defendant’s apartment in
addition to his vehicle and person.
Notwithstanding the above, defendant takes issue with Officer Heilman taking the
key to the apartment, using it and entering without providing any resident the opportunity
to refuse or consent. There are four main reasons for the knock-notice rule in California:
“‘“(1) The protection of the privacy of the individual in his home [citations]; (2) the
protection of innocent persons who may also be present on the premises . . . [citation];
(3) the prevention of situations which are conducive to violent confrontations between the
occupant and individuals who enter his home without proper notice [citations]; and (4)
the protection of police who might be injured by a startled and fearful householder.”’
[Citations.]” (People v. Hoag (2000) 83 Cal.App.4th 1198, 1203.) The individual’s
privacy interest has many aspects. “First, [the knock-notice rule] protects the homeowner
from the outrage of having his ‘castle’ suddenly and violently broken into. [Citations.]
. . . [¶] Second, the rule may prevent embarrassing circumstances resulting from the
unexpected exposure of private activities. [Citations.]” (United States v. Bustamante-
Gamez (9th Cir.1973) 488 F.2d 4, 11-12.) And finally, because officers must wait to be
refused admittance, the rule gives the homeowner an opportunity to consent to entry.
7 Here, the record shows that the officers used defendant’s key to enter the
apartment, and at the time of opening the door announced, “Police, parole search.”
However, the transcript of the hearing on the motion to suppress is void of any inquiry
into whether the officers knocked on the door before entering the apartment. Defendant
did not voice any objection to the use of his key in his presence, and he “may not
vicariously challenge the alleged violation of another’s interest.” (People v. Hoag, supra,
83 Cal.App.4th at p. 1203.) Moreover, the exclusionary rule does not apply to evidence
seized pursuant to a warrant despite a violation of knock-notice law. (Hudson v.
Michigan (2006) 547 U.S. 586, 599.) While there was no warrant in this case, the same
reasoning applies during the execution of a search pursuant to a parolee’s search term.
Nonetheless, defendant faults his trial counsel for failing to raise the knock-notice
violation. Assuming, without deciding, counsel’s deficiency, we conclude that defendant
is unable to establish “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. (Strickland
v. Washington (1984) 466 U.S. 668, 694.) According to the record before this court,
Officer Heilman testified at trial that he did knock and announced himself as law
enforcement. The record is silent on why defense counsel did not raise the issue below.
If the record on appeal “‘“sheds no light on why counsel acted or failed to act in the
manner challenged[,] . . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation,” the claim on
appeal must be rejected,’” and the “claim of ineffective assistance in such a case is more
appropriately decided in a habeas corpus proceeding. [Citations.]” (People v. Mendoza
8 Tello (1997) 15 Cal.4th 264, 266-267.) Here the conduct of defense counsel is subject to
a satisfactory explanation, i.e., defense counsel knew the officer had knocked before
entering, and thus, there was no basis to raise the issue. (People v. Torrez (1995) 31
Cal.App.4th 1084, 1091 [defense counsel “is not required to make futile motions or to
indulge in idle acts to appear competent”].)
D. Defendant’s Status as a Parolee
Next, defendant contends the “evidence was insufficient to establish that Heilman
was aware that [defendant’s] parole agreement contained a search term.” This issue has
been addressed, and rejected, by our colleagues in Division Three of the First District.
(People v. Middleton (2005) 131 Cal.App.4th 732, 739 (Middleton).) Although
defendant invites us to “reject the analysis in Middleton because it is less persuasive than
the reasoning put forth in the federal cases[,]”we decline the invitation and adopt the
holding in Middleton. (People v. Schmitz (2012) 55 Cal.4th 909, 923 [officer’s
knowledge of an individual’s parole status is equivalent to knowledge of a search
condition].)
“‘[A] warrantless search condition is a reasonable term in any parole of a
convicted felon from state prison.’ [Citations.] It was long ago recognized that ‘every
grant of parole included an implied search condition, and an officer’s knowledge of
parole status was equivalent to knowledge of a parole search condition.’ [Citations.] A
search condition for every parolee is now expressly required by statute. [Penal Code]
9 [s]ection 3067, [former] subdivision (a)[3] requires an inmate to agree to permit law
enforcement to perform warrantless searches, regardless of cause, as a mandatory
condition of parole. [Penal Code, former] [s]ection 3060.5[4] requires the parole authority
to revoke the parole of any eligible inmate who refuses to sign a parole agreement which
must include the mandatory parole search condition.
“Defendant points to [Penal Code] section 3067, [former] subdivision (b) to
suggest that an inmate may be paroled without expressly agreeing to a parole search
condition.[] While this provision may not be a model of statutory clarity, read together
with [former] subdivision (a) it can be understood to mean only that inmates who are
otherwise eligible for parole yet refuse to agree to the mandatory search condition will
remain imprisoned while losing their accumulated worktime credits on a daily basis until
either (1) the inmate agrees to the search condition and is otherwise eligible for parole, or
(2) has lost all worktime credits and is eligible for release after having served the balance
of his/her sentence. Support for this interpretation of [Penal Code] section 3067, [former]
subdivision (b) can be found in the final legislative analysis of the provision filed
concurrently with the passage of the statute in 1996. ‘An inmate who refuses to agree to
warrantless search shall not be released until he agrees or has served his/her entire
3 Penal Code section 3067, subdivisions (a) and (b), were amended in June 2012. (Stats. 2012, ch. 43, § 49, eff. June 27, 2012.)
4 Penal Code section 3060.5 was amended in June 2012. (Stats. 2012, ch. 43, § 45, eff. June 27, 2012.)
10 sentence.’ (Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 2284 (1995-1996
Reg. Sess.) as amended Aug. 26, 1996, p. 1.)
“Defendant’s [further] point that [Penal Code] section 3067, subdivision (c) limits
the applicability of [Penal Code] section 3067 to inmates whose offenses were committed
on or after January 1, 1997 (and there is no evidence that the officers here knew when
[defendant] committed the offense for which he was on parole), is equally unavailing.[5]
Whatever differences there may be between the provisions of [Penal Code] section 3067
and the administrative regulations that apply to those on parole for offenses committed
before 1997, both contemplate that all parolees shall be subject to a search condition.
Moreover, [Penal Code, former] section 3060.5, which provides that ‘the parole authority
shall revoke the parole of any prisoner who refuses to sign a parole agreement setting
forth the general and any special conditions applicable to the parole,’ applies regardless
of the date on which the parolee’s offenses were committed.” (Middleton, supra, 131
Cal.App.4th at pp. 739-740, fns. omitted.)
Thus, Officer Heilman’s awareness that defendant was a parolee was sufficient to
inform the officers of their right to conduct a parole search of his apartment and justified
the search of it.
5 While defendant contends that “the record does not support an inference that [he] was necessarily on parole,” Officer Heilman testified that upon asking defendant if he was on probation or parole, defendant stated he was on parole. Moreover, the information alleged that defendant suffered three prior convictions (2005, 2007, and 2008) for which prison terms were served. Further, defendant faults the trial judge for failing to disqualify himself upon acknowledging that he acted as a deputy district attorney in a prior case against defendant.
11 III. TRIAL JUDGE’S NEED TO DISQUALIFY HIMSELF
On October 25, 2011, during jury deliberation, the Judge Peel became aware that
he had acted as a deputy district attorney in a prior case against defendant.6 The prior
case involved one of defendant’s prior convictions alleged pursuant to Penal Code section
667.5. As a result, Judge Peel disqualified himself from hearing the Penal Code section
667.5 allegations. However, he continued to preside over the trial on the instant charges,
entering the verdict, discharging the jury, and sentencing defendant. Defendant moved
for a new trial, arguing that because of the conflict Judge Peel could not have any further
involvement with the case, and because defendant had a right to be sentenced by the
judge who presided over the trial, no other judge could sentence him either. Thus,
defendant maintained that a new trial was necessary. Judge Peel denied the motion. On
appeal, defendant faults Judge Peel for failing to disqualify himself upon learning that he
was the prosecutor on one of defendant’s prior cases.
Citing Sincavage v. Superior Court (1996) 42 Cal.App.4th 224 (Sincavage),
defendant contends Judge Peel “erred when [he] recused [him]self from the hearing on
the prior convictions, rather than the entire proceeding.” We disagree. In Sincavage, the
trial judge had conducted the preliminary hearing on one of defendant’s prior
6 Judge Peel stated: “The Court in my prior career as a Deputy District Attorney did make, it appears to be a single appearance at a prepreliminary hearing conference on [defendant’s] case that arose out of the Fontana district of this county. You are correct, I do not remember [defendant] at all. I remember absolutely nothing about the case. It did appear I did handle and appear just one prepreliminary conference on that case. [¶] Nevertheless, it appears that my involvement in that case is disqualifying with regard to hearing anything that is in controversy regarding that case.”
12 convictions. In addition, early in the proceedings, she mistakenly thought she had only
appeared at a brief hearing and had played no active role. Under the mistaken impression
that she served only that limited role, the trial judge commented, “‘If in fact,
Mr. Sincavage, I had taken your plea, if I had prosecuted one of your cases, I would
automatically recuse myself. I would not hear the case. [¶] From looking at the
transcript, I merely called your case and another prosecutor and Mr. Coleman . . . from
the Public Defender’s Office were actually involved in the plea itself.’” (Id. at p. 227.)
Based on this information, the defendant waived the conflict and the judge presided over
defendant’s trial. A different attorney represented the defendant during the sentencing
hearing and moved for disqualification upon discovering that the trial judge, as the
prosecutor in the prior case, had conducted the preliminary examination. The motion was
denied, and on appeal, the Sincavage court determined that the trial judge’s comment and
subsequent decision not to recuse herself upon discovering that she had in fact had a
more active role in the prosecution of defendant created a doubt as to her impartiality,
such that, as a matter of law, she should have been disqualified under Code of Civil
Procedure section 170.1, subdivision (a)(6)(A)(iii). (Sincavage, supra, 42 Cal.App.4th at
p. 230.)
As noted by the Sincavage court, while the trial judge may have been impartial in
presiding over the defendant’s trial on his current offenses, a person would have a
legitimate cause for concern over her ability to be impartial during the trial on the prior
convictions and the sentencing hearing. (Sincavage, supra, 42 Cal.App.4th at p. 231.)
“Because of the timing peculiar to the instant motion, disqualification would not
13 invalidate the judgment of conviction of the current offenses. Under [Code of Civil
Procedure] section 170.3, subdivision (b)(4), only proceedings after the grounds for
disqualification were discovered would be affected.” (Sincavage, supra, 42 Cal.App.4th
at p. 231.)
The facts before this court are distinguishable from the facts in the Sincavage case.
Here, Judge Peel did not have an active role in the prosecution of defendant on his prior
conviction. Rather, he appeared one time at a conference hearing before the preliminary
hearing. Thus, disqualification from the entire case was not required. However,
disqualification as to the sentencing is, as the People acknowledge, “admittedly a closer
call.” On the one hand, disqualification is only required where the judge served as an
attorney for one of the parties in another proceeding “involving the same issues.” (Code
Civ. Proc. § 170.1, subd. (a)(2)(A).) A prepreliminary hearing conference would not
have involved the same issues before the court at sentencing. However, on the other
hand, Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), states that
disqualification is mandatory when a person aware of the facts might reasonably entertain
a doubt that the judge would be able to be impartial. Given the fact that Judge Peel
decided to allow another judge to preside over the trial on defendant’s priors, he should
have also allowed another judge to preside over sentencing, since defendant’s prior
convictions governed the punishment for the current offense.
The trial on the current offense was untainted by any known conflict. If the court
has no knowledge of a conflict, there is no reason to suspect any bias or prejudice and
there is no basis for disqualification. “Judicial responsibility does not require shrinking
14 every time an advocate asserts the objective and fair judge appears to be biased. The
duty of a judge to sit where not disqualified is equally as strong as the duty not to sit
when disqualified. [Citation.]” (United Farm Workers of America v. Superior Court
(1985) 170 Cal.App.3d 97, 100.) Judge Peel conducted the entire guilt phase of the trial
under the assumption that he had not prosecuted defendant in any prior cases. The court
conducted a preliminary search into the matter and came up empty-handed, thereby
confirming that no conflict existed. It is impossible for the court to be biased against
defendant based on a prior encounter that the court assumed did not happen. Moreover,
the record reveals no indication of bias or prejudice as Judge Peel presided over
defendant’s trial.
Judge Peel only learned of the prior case while the jury was deliberating, before
the trial on defendant’s priors and his sentencing hearing. To the extent the prior case
had any effect on the current case, it would have been at the trial on defendant’s priors
and at his sentencing on those priors. Although Judge Peel disqualified himself from the
trial on defendant’s priors, out of an abundance of caution, we conclude that he should
have also disqualified himself from the sentencing hearing. Given the facts before this
court, the appropriate remedy is to remand the matter for resentencing only. On remand,
defendant is to be sentenced by a judge other than Judge Peel.
15 IV. DISPOSITION
For the foregoing reasons, we reverse the sentence on all counts and remand the
matter for resentencing by a judge other than Judge Peel. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
MCKINSTER J.
MILLER J.