People v. Folb CA2/6 ( 2020 )

Filed 11/3/20 P. v. Folb CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B304898
(Super. Ct. No. 19F-03645)
Plaintiff and Respondent, (San Luis Obispo County)
v.
DONALD BRUCE FOLB,
Defendant and Appellant.
Appellant Donald Bruce Folb was charged with two felony
counts of unlawful driving or taking of a vehicle (Veh. Code,
§ 10851, subd. (a)), and one misdemeanor count of giving false
information to a police officer. (Pen. Code, § 148.9, subd. a).) The
allegations included a 1985 conviction for burglary as a prior
strike. (Pen. Code, §§ 667, 1170.12.) The court denied Folb’s
motion to suppress, after which Folb waived his right to trial and
pled no contest to the charges. The court sentenced him to state
prison for three years on the first felony count, a consecutive
eight-month term on the second felony count, and a concurrent
six-month term on the misdemeanor count. Folb timely appealed
the court’s denial of his motion to suppress. (Pen. Code,
§ 1538.5.)
A construction company reported one of its message board
trailers stolen from a site along Highway 58 by a white work
truck on May 14, 2019. Sheriff’s deputies received a report that a
truck matching this description drove up Goldie Lane, an
unmaintained dirt road directly off the highway a few miles from
the site of the theft.
Two deputies drove up Goldie Lane looking for the trailer.
They saw a driveway near the end of the lane blocked by a gate
with a “no trespassing” sign. They noticed two structures about
25 yards up the driveway and decided to get out of the car. The
deputies opened the unlocked gate, walked up the driveway, and
began looking for the owner of the property. They saw two men
and a woman near a detached garage who said they were only
guests. The deputies saw Folb about 100 yards from the house in
a white truck with a recreational travel trailer attached. When
they approached him, he said his name was “Donald Maxwell”
and that he was a “drifter” who had been staying on the property
as a guest for a couple of days.
The deputies then spoke to a woman named Ava Everhart
who said she was one of the owners. Everhart told them she
wanted Folb to leave because she suspected he brought stolen
vehicles to her property. The deputies obtained her permission to
search the entire property and all its contents. A VIN search
confirmed both the truck and recreation trailer were reported
stolen ten days prior. The deputies arrested Folb. The
construction company found their stolen message board trailer
later that day in a different location.
Appointed counsel filed a brief raising no issues and
requesting our independent review pursuant to People v. Wende
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(1979) 25 Cal. 3d 436 (Wende). We notified Folb on July 14, 2020
that he had 30 days in which to advise us of any claims he wished
us to consider. He submitted a three-page letter brief.
Folb’s letter emphasizes how deputies found him only after
ignoring a “no trespassing” sign, opening a closed gate, and
venturing deep enough into the property to view what they could
not see from the road. He characterizes their obtaining consent
from Everhart as a post-hoc attempt to legitimize an otherwise
illegal “exploratory search.” In summary, Folb states that “[a]
thorough study of the record shows that the supporting facts over
the suppression of evidence favored the appellant.” He requests
we allow him to file a supplemental brief.
The trial court did not expressly address the primary
argument Folb raises in his letter, i.e., that the initial incursion
past the Goldie Lane gate constituted an unlawful search the
deputies could not belatedly justify by obtaining consent.
However, Folb’s counsel did proffer the argument in his motion to
suppress and during oral proceedings on the motion. The trial
court’s denying of the motion impliedly rejected it. “We defer to
the court’s factual findings, express or implied, where supported
by substantial evidence.” (People v. Glaser (1995) 11 Cal. 4th 354,
362.) We exercise our independent judgment whether a search is
reasonable under those facts. (Ibid.)
The record shows deputies visited Goldie Lane intending to
speak with residents about the truck spotted on the road earlier
that day. When they reached Ms. Everhart’s property, they saw
two rooflines about 25 yards up the driveway. They opened an
unlocked gate, walked up the driveway, and sought out the owner
of the house they saw from the road. None of the individuals
they initially approached accused them of trespassing or told
them to leave the property. They spotted Folb and the white
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truck while performing the perfunctory task of locating the
property owner. Once they found the owner, she welcomed the
deputies and not only permitted a comprehensive search, but
requested they remove Folb because of his suspected criminal
activities. The VIN search followed her granting of consent.
We conclude the trial court properly found that deputies
entered the property reasonably under these circumstances, and,
once inside its boundaries, found the white truck and trailer in
an open area far outside the house’s curtilage. (See People v.
Rivera (2007) 41 Cal. 4th 304, 311 [“The sanctity of the home is
not threatened when police approach a residence, converse with
the homeowner, and properly obtain consent to search”]; People v.
Lieng (2010) 190 Cal. App. 4th 1213, 1224 [“even in rural areas, it
is rare for curtilage to extend more than 100 feet beyond the
home”].)
We have reviewed the entire record and are satisfied that
appellant’s counsel has fully complied with his responsibilities
and that no arguable issue exists. (Wende, supra, 25 Cal.3d at
p. 443; People v. Kelly (2006) 40 Cal. 4th 106, 126.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J. TANGEMAN, J.
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Jaquelyn H. Duffy, Judge
Matthew G. Guerrero, Judge
Superior Court County of San Luis Obispo
______________________________
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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