People v. Lauri CA4/3

Filed 3/26/14 P. v. Lauri CA4/3
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G049100
v. (Super. Ct. Nos. FSB053697;
FSB054367;
JAYSUN EDWARD LAURI and FSB053658)
ANNALISA JOY LAURI,
Defendants and Appellants. OPINION
Appeal from a judgment of the San Bernardino Superior Court, Donna G.
Garza, Kyle S. Brodie, and J. David Mazurek, Judges. Affirmed in part, reversed in part,
and remanded.
Richard Jay Moller, under appointment by the Court of Appeal, for
Defendant and Appellant Jaysun Edward Lauri.
Laurel M. Nelson, under appointment by the Court of Appeal, for
Defendant and Appellant, Annalisa Joy Lauri.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, William Wood and Scott
C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Jaysun Lauri of possession of marijuana (Health & Saf.
Code, § 11357, subd. (e); count 2), felon in possession of a firearm (Pen. Code, former
§ 12021, subd. (a)(1); counts 7 and 13; all statutory references are to the Penal Code
unless noted), possession of a controlled substance with a firearm (Health & Saf. Code,
§ 11370.1, subd. (a); count 9), possession of methamphetamine (Health & Saf. Code,
§ 11378; counts 10 and 14), child endangerment (§ 273a, subd. (a)); counts 11 and 12),
and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count
15).1 As to certain counts, the jury found Jaysun was personally armed with a firearm
(§ 12022, subd. (c)), and found he had suffered four prior drug convictions (Health &
Saf. Code, § 11370.2, subd. (c)). The jury convicted Annalisa of possession of a
controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 9),
possession of methamphetamine (Health & Saf. Code, § 11378; count 10), and child
endangerment (§ 273a, subd. (a); counts 11 and 12).
Defendants seek review of a sealed search warrant affidavit and in camera
proceedings to ascertain whether the trial court erred in denying a motion to traverse and
quash the search warrant, and unseal the affidavit. (See People v. Hobbs (1994) 7 Cal. 4th
948 (Hobbs).) They also assert the trial court erred in applying the good faith exception
to the warrant requirement. (United States v. Leon (1984) 468 U.S. 897, 922-923.)
Finally, Jaysun argues the court erred in denying his motion to suppress evidence found
1
To avoid confusion and for the reader’s convenience, we refer to the
defendants and appellants by their first names. We do not intend this informality to
reflect a lack of respect. (In re Marriage of Balcof (2006) 141 Cal. App. 4th 1509, 1513,
fn.2)
2
in a briefcase during a vehicle stop. Annalisa also challenges several probation
conditions as unconstitutionally vague and overbroad.
After we filed our original opinion, Jaysun petitioned for rehearing seeking
reversal of his conviction for transportation of methamphetamine (Health & Saf. Code,
§ 11379, subd. (a); count 15) and associated enhancements (Health & Saf. Code,
§ 11370.2, subd. (c)) based on an amendment to Health and Saf. Code, § 11379 that took
effect Jan. 1, 2014 (Assem. Bill No. 721 (2013-2014 Reg. Sess.) ch. 504). The
amendment redefines “‘transport[]’” of a controlled substance to mean “transport for
sale.” We granted rehearing and invited the parties to submit supplemental briefs
addressing the issue. The Attorney General concedes the amendment applies
retroactively to Jaysun (In re Estrada (1965) 63 Cal. 2d 740) and requires reversal of
count 15 and its associated enhancements.
For reasons expressed below, we modify the terms and conditions of
Annalisa’s probation. As to Jaysun, we reverse his conviction for transportation of
methamphetamine and associated enhancements and remand for Jaysun’s resentencing.
I
FACTS AND PROCEDURAL BACKGROUND
On the afternoon of November 8, 2005, deputies with the San Bernardino
sheriff’s department executed a search warrant at 760 Audio, Jaysun’s Victorville
business. Jaysun ran into his office when he spotted the deputies and barricaded the door.
Deputies eventually gained entry, searched the office, and found in Jaysun’s desk a bag
containing 43 grams of methamphetamine, small baggies, a scale, and a shotgun.
Deputies also discovered at the business a rifle, a pot or vase with a false compartment, a
toolbox containing a handgun, pay-owe sheets, a methamphetamine pipe, and
ammunition. Jaysun had a bindle containing 4.3 grams of methamphetamine in his back
pocket.
3
Around 8:00 p.m. that evening, deputies executed a search warrant at the
Lauris’ San Bernardino home. In the master bedroom closet, the officers found a rifle
with a sawed-off barrel and a shotgun, and another shotgun with a sawed-off barrel under
the bed. They also found plastic bags containing marijuana remnants in the master
bedroom, and baggies containing 22 grams and 12 grams, respectively, of marijuana in a
dresser in the northeast bedroom. A purse in the living room contained two additional
baggies of marijuana.
Deputies returned to the Lauris’ residence on the evening of December 14,
2005, to execute another search warrant. They found the Lauris at home with their two
young sons, ages five, and eight months. The residence was dirty and disorganized.
Deputies found an unsheathed machete on a dresser in the master bedroom. At various
locations throughout the house, deputies discovered two baggies of marijuana, a
marijuana grinder, items and substances that could be used in the manufacture and sale of
methamphetamine, a scale, and a casserole dish dusted with a white powdery substance
later determined to be methamphetamine. On hallway shelves outside the bathroom,
accessible to a child, deputies located a Band-Aid box containing marijuana
paraphernalia and small plastic baggies, a loaded handgun, and gas masks. Deputies also
found a BB gun rifle in the baby’s crib. In a Dodge Viper automobile, deputies found
methamphetamine, a pipe, and a loaded handgun.
Jaysun told deputies he used methamphetamine every morning, and the
Lauris admitted they kept the guns for their own protection. Annalisa denied using
methamphetamine, but admitted using marijuana and OxyContin. Both tested positive
for amphetamines, and Annalisa tested positive for marijuana metabolites. A urine test of
their five-year old son was positive for methamphetamine and amphetamine.
On December 26, 2005, deputies stopped a silver Chevrolet for traffic
violations. Jaysun, the rear seat passenger, straddled a briefcase on the floorboard.
Attorney Don Ferguson’s business card was attached to the briefcase, which contained 15
4
grams of methamphetamine in a large bag, and smaller bags contained lesser amounts of
the drug. A scale in the briefcase had an “L” etched into it. The briefcase also contained
a photograph of Jaysun and his business card. Jaysun had $249 on his person, and
deputies also found two drug pipes. Ferguson denied responsibility for the contents of
the briefcase, although in May 2007, he suffered a conviction for possession of
methamphetamine for sale.
Jaysun had previously suffered convictions in Orange County for
transportation and possession for sale of controlled substances in 1993 and 1994.
Defendants testified and presented evidence suggesting others may have possessed the
rifle found at the business. They also denied that Jaysun was a drug dealer, claiming the
couple possessed the drugs found in their possession for personal use.
II
DISCUSSION
A. The Trial Court Did Not Err in Denying Motions to Unseal Confidential Portions
of the November 8, 2005 Search Warrant Affidavit, to Traverse the Warrant, and to
Quash the Warrant
Jaysun asks this court to conduct an independent review of the sealed
probable cause affidavit related to search warrant VVSW05-530. Law enforcement
relied on this warrant to search Jaysun’s Victorville business, 760 Audio, on November 8,
2005. Jaysun asks this court to determine whether the affidavit was properly sealed,
whether it contains material misrepresentations or omissions, and whether it establishes
probable cause for issuance of the warrant. The trial court addressed these issues during
an in camera hearing outside the presence of the defense on May 3, 2010.
All or part of a search warrant affidavit may be sealed if necessary to
protect the identity of an informant who has provided probable cause for the issuance of
the warrant. (Hobbs, supra, (1994) 7 Cal. 4th 948.) In such cases, where the defendant
moves to traverse or quash the warrant, the trial court is required to conduct an in camera
5
hearing. (Id. at p. 972.) The court must determine whether sufficient grounds exist to
maintain the confidentiality of the informant’s identity, and whether the extent of the
sealing is necessary to protect the informant’s identity. (Ibid.) Absent a waiver from the
prosecutor, the defendant or his attorney may not attend the in camera hearing. (Id. at
p. 973.)
If the trial court determines all or part of the affidavit was properly sealed,
it must next decide if there is any merit to the defendant’s motion to traverse. (Hobbs,
supra, 7 Cal.4th at p. 974.) The court must determine whether the affidavit included a
false statement made knowingly and intentionally or with reckless disregard of the truth,
and whether the false statement is necessary to a finding of probable cause. (Ibid.) The
trial court must make this determination based on the public and sealed portions of the
affidavit and any testimony offered at the in camera hearing. (Ibid.) The court must deny
the traversal motion if it lacks merit, but if there is a reasonable probability the defendant
will prevail on the motion, the prosecutor must be given the option of disclosing the
sealed materials, or suffering the entry of an adverse order. (Id. at pp. 974-975.)
If the defendant moves to quash the warrant, the procedure is similar. The
trial court must determine whether under the totality of the circumstances the affidavit
and related materials furnished probable cause for the issuance of the warrant. (Hobbs,
supra, 7 Cal.4th at p. 975.) The court must deny the motion to quash if the affidavit in
support of the warrant demonstrates probable cause to issue the warrant, but if the court
determines the defendant has a reasonable probability of quashing the warrant, the
prosecutor must disclose the sealed materials to the defense to avoid having the warrant
quashed. (Ibid.)
The trial court here followed the proper procedure. Our independent
review of the record, including the sealed portions, confirms the trial court’s
determinations. We agree with the trial court sufficient grounds existed to maintain the
confidentiality of the informant’s identity, and the extent of the sealing was necessary for
6
that purpose. We also agree there is no reasonable probability that Jaysun could prevail
on his motions to traverse and to quash the warrant.2 Because the initial warrant was not
defective, the subsequent search warrant obtained to search the Lauris’ home on
November 8, 2005, was not invalid for that reason.
B. The Record Does Not Reflect Jaysun Moved to Quash the Warrant Used to Search
760 Audio on December 14, 2005
Jaysun contends he filed a motion to suppress evidence found when officers
executed a search warrant at 760 Audio on December 14, 2005. The parties do not
describe what evidence from the search of 760 Audio on December 14, 2005, the court
admitted at trial. A search warrant receipt lists only “paper work” as the “items taken”
during the search. We have reviewed the page numbers of the clerk’s transcript Jaysun
cites to support his claim, but those pages refer to his motion to suppress evidence
obtained without a warrant during the December 26, 2005vehicle stop. The record does
not support Jaysun’s claim he moved to quash the warrant used to search 760 Audio on
December 14, 2005. Although the court purported to “find probable cause to search the
business,” the record does not contain a motion to quash the warrant. Consequently,
Jaysun has forfeited his claim the affidavit for the search of 760 Audio on December 14,
2005, did not establish probable cause to search.
2
Our original record did not contain affiant California Highway Patrol
Detective Heath Kuhlmann’s unredacted affidavit, which was used to obtain the warrant
to search Jaysun’s business on November 8, 2005. The trial court reviewed and declined
to unseal that affidavit at an in camera review on May 3, 2010. The San Bernardino
County Superior Court subsequently advised this court Kuhlmann’s original affidavit
could not be located. In an order filed December 18, 2013, we directed the San
Bernardino Superior to conduct a hearing to obtain the original affidavit, or to
authenticate and certify a copy of the affidavit the court considered on May 3, 2010. A
minute order dated January 6, 2014, reflects the trial court conducted a hearing and
authenticated “an accurate copy of the original affidavit considered by the trial court at
the in camera proceeding on May 3, 2010.” We have reviewed the authenticated copy of
Kuhlmann’s unredacted affidavit.
7
In any event, the affidavit supplied by San Bernardino Deputy Sheriff Eric
Mello in support of the December 14, 2005 search of 760 Audio cited the drug and other
evidence discovered at 760 Audio and the Lauris’ home on November 8, 2005.3 The
affidavit also included information that a Detective Doug Wolfe of the “Sheriff’s Intel
Division” had eavesdropped on a December 13, 2005 phone call between a high security
jailed Aryan Brotherhood gang member named Joseph Hayes and a person identified as
Sackett. In the phone call, Hayes advised Sackett that Jaysun sold drugs from 760 Audio.
Hayes provided an address and described Jaysun’s car, a black Dodge Viper. Hayes
stated another “guy in the business [] packed” a gun and told Sackett there was a false
floor under a television stand. Hayes also stated there was a “rumor that Lauri had a
large stash at his residence.” Hayes suggested Sackett follow Jaysun home from 760
Audio, “jump” Jaysun and torture him until he disclosed where he kept his stash. Based
on the discovery of methamphetamine and weapons at 760 Audio on November 8, 2005,
and Hayes’s assertion on December 13 that Jaysun was dealing drugs from 760 Audio,
we agree with the court there was sufficient probable cause to search 760 Audio on
December 14, 2005.
C. The Trial Court Did Not Err in Denying Annalisa’s Motion to Suppress Evidence
Found in the Search of the Lauris’ Home on December 14, 2005
Annalisa moved to quash the warrant authorizing the search of the Lauris’
San Bernardino home (SBSW05-0797) on December 14, 2005, and to suppress evidence
uncovered during the search. Jaysun joined in Annalisa’s motion. On July 29, 2010, the
3
On May 4, 2010, the trial court granted a defense motion to unseal Mello’s
affidavits. The court had earlier denied a motion to unseal these affidavits on April 12,
2006. In his opening brief, Jaysun incorrectly asserts the April 2006 sealing order related
to the November 8, 2005 affidavits.
8
court granted the motion to quash, finding the affidavit lacked probable cause. But on
August 6, 2010, the court denied a motion to suppress evidence seized from the Lauris’
home, finding the good faith exception to the warrant requirement applied.
Deputy Mello supplied an identical affidavit, described in the section
above, to obtain the residential warrant. Mello testified at the suppression hearing on
August 6, 2010, he had been a sworn officer for 14 years, and he had conducted
numerous narcotics investigations during his four years as a narcotics detective. Mello
stated drug dealers keep the drugs in more than one location to prevent “anybody from
ripping them off.” Mello explained Hayes was a high-ranking member of the Ayran
prison gang, Hayes’s information was consistent with the discovery of drugs and
weapons at Jaysun’s business and home on November 8, 2005, drug dealers often
continue to deal even after an arrest, and Mello believed the warrant affidavit provided
probable cause to search. The trial court found it was not “unreasonable for [the officers]
to rely on the granting of the warrant” and denied the suppression motion.
In United States v. Leon, supra, 468 U.S. 897 (Leon), the court held the
Fourth Amendment exclusionary rule does not “‘bar the use in the prosecution’s case in
chief of evidence obtained by officers acting in reasonable reliance on a search warrant
issued by a detached and neutral magistrate but ultimately found to be unsupported by
probable cause.’” (People v. Camarella (1991) 54 Cal. 3d 592, 596 (Camarella).) “‘[A]
warrant issued by a magistrate normally suffices to establish’” an officer’s good faith
belief. (Leon, supra, 468 U.S. at p. 922.) In some circumstances, however, the officer
will have no reasonable grounds for relying on the magistrate. (Id. at pp. 922-923.)
Review is limited to an objective examination of whether a “‘reasonably well trained
officer would have known that the search was illegal despite the magistrate’s
authorization.’” (Camarella, supra, 54 Cal.3d at pp. 602-603.) Leon noted four
situations in which the good faith exception to the exclusionary rule would not apply: (1)
where the affiant misled the magistrate with information the affiant knew was false or
9
would have known but for the affiant’s reckless disregard; (2) where the magistrate
wholly abandoned his judicial role; (3) where the affidavit was “‘so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable’”; or (4)
where the warrant itself is facially deficient in particularizing the place and items to be
searched. (Leon, supra, 468 U.S. at p. 923.) In Camarella, the court held that the
relevant inquiry for the good faith exception is not whether further investigation would
have been reasonable, but whether a reasonable officer would have known that the
affidavit in support of the search warrant was legally insufficient, and that he should not
have applied for the warrant. (Camarella, supra, 54 Cal.3d at p. 606.)
Here, defendants argue the Leon exception does not apply because the
affidavit’s lack of probable cause rendered official belief in its existence entirely
unreasonable. Based on the methamphetamine, scales, baggies and weapons found at
760 Audio on November 8, 2005, and the marijuana and weapons found at the Lauris’
home the same evening, Hayes’s information on December 13, 2005, that Jaysun was
dealing drugs, and Mello’s experience that dealers hide drugs at more than one location
and often continue to deal in drugs after an arrest, we cannot say the affidavit’s lack of
probable cause rendered official belief in its existence as entirely unreasonable. If
anything, the affidavit supports a probable cause finding. The trial court did not err in
relying on Leon to deny the suppression motion.
D. The Trial Court Did Not Err in Denying Jaysun’s Motion to Suppress Evidence
Obtained from Search of the Briefcase on December 26, 2005
On April 12, 2010, Jaysun moved to suppress evidence obtained from the
search of the briefcase found during the vehicle stop on the evening of December 26,
2005. Jaysun was a passenger in a Chevrolet driven by Michael Caywood. San
Bernardino deputies stopped the car for speeding. Caywood made erratic movements
10
inside the vehicle before stopping, and told the investigating officers his license had been
suspended. After confirming the license suspension, the officers decided to impound the
vehicle (Veh. Code, § 22651, subd. (p)), directed the occupants out, and began an
inventory search. An officer opened the briefcase, which had been on the floorboard
between Jaysun’s legs, and discovered methamphetamine and a scale. Lauri claimed the
briefcase belonged to his attorney, Don Ferguson.
Jaysun moved to suppress the evidence found in the briefcase. Although
Jaysun’s trial counsel claimed the “briefcase belonged to [] Lauri’s attorney,” he argued
Jaysun had a possessory interest in suppressing the contents of the briefcase because the
prosecution established standing by charging Lauri with possession of the drugs found
inside the attaché. The trial court found Jaysun’s disclaimer of ownership at the time of
the search defeated his legitimate expectation of privacy in the briefcase’s contents. On
appeal Jaysun argues he “possessed the briefcase; he had the right to exclude others; he
expected it would be free from governmental invasion; and he took normal precautions to
keep the briefcase private, sitting between his legs in the car.”
The Supreme Court in Rakas v. Illinois (1978) 439 U.S. 128, 140,
examined the requirement a defendant show standing to claim a Fourth Amendment
violation, The Court explained, “the question is whether the challenged search and
seizure violated the Fourth Amendment rights of a criminal defendant who seeks to
exclude the evidence obtained during it. That inquiry in turn requires a determination of
whether the disputed search and seizure has infringed an interest of the defendant which
the Fourth Amendment was designed to protect.” (Id. at p. 140.) This depends on
whether the claimant has a legitimate expectation of privacy in the invaded place. (Id. at
p. 143.) Defendant has the burden of proving he or she has a legitimate expectation of
privacy in the area or item searched. (Rawlings v. Kentucky (1980) 448 U.S. 98, 104.)
The court looks to the totality of the circumstances to ascertain whether the defendant
made a sufficient showing. When deciding whether a defendant has a sufficient
11
expectation of privacy in the article at the time of the search, the reviewing court will
consider the preliminary statements of ownership asserted by the defendant.
In United States v. Hawkins (11th Cir. 1982) 681 F.2d 1343, 1344-1345,
the defendant denied ownership of a suitcase and any knowledge of the woman carrying
it just before law enforcement officials opened it and found heroin. (Ibid.) At the
suppression hearing, however, the defendant asserted he owned the suitcase and the
heroin. The appellate court held defendant’s affirmative disclaimer at the time of the
search defeated his Fourth Amendment claim. (Id. at p. 1346; see People v.
Dasilva (1989) 207 Cal. App. 3d 43 [the defendant lacked standing to suppress evidence
because he disavowed ownership of containers in the trunk of the car he was driving at
the time of the warrantless search]; People v. Stanislawski (1986) 180 Cal. App. 3d 748,
757 [defendant lacked standing to suppress evidence because he denied having a
possessory or proprietary interest in the property seized].)
Based on the foregoing authorities, we conclude Jaysun lacks standing to
challenge the search of the briefcase because he denied having a possessory interest in it
at the time of the search. Jaysun “ha[d] in effect given the authorities the green light to
proceed insofar as his [] own Fourth Amendment rights are concerned.” (People v. Dees
(1990) 221 Cal. App. 3d 588, 595; see also United States v. Salvucci (1980) 448 U.S. 83,
88, 90 [court abandoned rule of “automatic standing” for defendants charged with crimes
of possession; under substantive Fourth Amendment principles “a prosecutor may
simultaneously maintain that a defendant criminally possessed the seized good, but was
not subject to a Fourth Amendment deprivation, without legal contradiction.”].)
E. Annalisa’s Probation Conditions
The trial court suspended execution of a five-year, four-month prison term
and placed Annalisa on probation under various terms and conditions, including service
of a 365-day jail term. She complains several of the other probation conditions are vague
or overbroad.
12
Section 1203.1, subdivision (a), authorizes the court to place a defendant on
probation “upon those terms and conditions as it shall determine.” The discretion to
determine proper terms and conditions has limits, however. (People v. Garcia (1993)
19 Cal. App. 4th 97, 101.) “[A] condition of probation which requires or forbids conduct
which is not itself criminal is valid if that conduct is reasonably related to the crime of
which the defendant was convicted or to future criminality.” (People v. Lent (1975)
15 Cal. 3d 481, 486.) “[E]ven if a condition of probation has no relationship to the crime
of which a defendant was convicted and involves conduct that is not itself criminal, the
condition is valid as long as the condition is reasonably related to preventing future
criminality. [Citation.]” (People v. Olguin (2008) 45 Cal. 4th 375, 380.)4
Trial courts must fashion precise probation conditions so the probationer
knows what is required. (Sheena K., supra, 40 Cal.4th at p. 890.) A condition is invalid
if it is “ ’ ” ’so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application.’”‘“ (People v. Quiroz (2011) 199 Cal. App. 4th
1123, 1128 (Quiroz).) Nor may a court impose overbroad probation conditions. Where a
condition impinges on a constitutional right, it must be carefully tailored and reasonably
related to the compelling state interest in reformation and rehabilitation. (Quiroz, supra,
at p. 1128; Sheena K., supra, 40 Cal.4th at p. 890.) A “court may leave to the discretion
4
Annalisa did not object to the probation conditions imposed at the
sentencing hearing. The forfeiture rule bars a defendant from raising an appellate
challenge to a probation condition when the defendant failed to object on that ground in
the trial court. (People v. Welch (1993) 5 Cal. 4th 228, 234-238; see In re Sheena K.
(2007) 40 Cal. 4th 875, 882 (Sheena K.) [“an adult probationer who elects to receive
probation in lieu of incarceration fairly may be charged with the need to timely challenge
any conditions imposed and that application of the forfeiture doctrine would deter the
promulgation of invalid conditions in the trial court and decrease the number of appeals
contesting such conditions”].) But a defendant may raise on appeal, without having
objected in the trial court, an appellate claim amounting to a “‘facial challenge’” based on
a constitutional defect that does not require scrutiny of individual facts and
circumstances. (Id. at p. 885.)
13
of the probation officer the specification of the many details that invariably are necessary
to implement the terms of probation. However, the court’s order cannot be entirely open-
ended.” (People v. O’Neil (2008) 165 Cal. App. 4th 1351, 1358-1359 [probation condition
forbidding defendant from associating with all persons designated by his probation
officer was “overbroad and permit[ted] an unconstitutional infringement on defendant’s
right of association”].)
Probation condition No. 8 requires Annalisa to “Keep the probation officer
informed of place of residence and cohabitants and give written notice to the probation
officer . . . (24) hours prior to any changes. Prior to any move provide written
authorization to the Post Office to forward mail to the new address.” Annalisa suggests
the condition is vague because she should not “be required to give 24 hours notice of
something if she does not know it is about to happen.” She also states the condition
“appears overly broad in that it would . . . prohibit any move to a new residence – a
constitutionally guaranteed right of travel – until she has an opportunity to inform her
probation officer and then wait 24 hours.” The Attorney General responds, “[i]t is
unlikely that a probationer would not be aware that she was changing residences within
24 hours of such a change” and “a probation condition should not be interpreted to
presume a probation officer would act irrationally or capriciously.” But the Attorney
General does not oppose Annalisa’s proposed modification. Accordingly, we modify the
condition as follows: Annalisa must “Keep the probation officer informed of her place of
residence and cohabitants and give written notice to the probation officer twenty-four
(24) hours before any move or change in cohabitants, or as soon as she reasonably
becomes aware of a move or change, but no later than 24 hours after the move or change.
Before any move provide written authorization to the Post Office to forward mail to the
new address.”
Probation condition No. 9 provides Annalisa must, “Permit visits and
searches of places of residence by agents of the Probation Dept. and/or law enforcement
14
for the purpose of ensuring compliance with the terms and conditions of probation; not to
do anything to interfere with this requirement, or deter officers from fulfilling this
requirement, such as erecting any locked fences/gates that would deny access to
probation officers, or have any animals on the premises that would reasonably deter,
threaten the safety of, or interfere with, officers enforcing this term.” Annalisa contends
the condition is vague and should be modified to prohibit her from knowingly deterring or
interfering with probation or police officers. She explains, “Without knowing she was
doing so, [she] could inadvertently do something that deters officers from visiting and
searching her” residence “such as locking doors when she leaves . . . or locking a gate for
her own or her family’s safety. It is virtually impossible to know what might deter a
given officer.” She also complains that restriction on animals is vague because an
“officer might be terrified of any dog [or other animal], regardless of size or
temperament” and the restriction impinges on her right to own property. The Attorney
General responds “rather than a knowledge requirement, . . . [m]odifying this condition to
add a willful[ness] requirement would provide adequate specificity without requiring the
probation condition to list every potential problematic circumstance, an impossible task.”
The Attorney General’s suggested modification, however, is implicit in all probation
cases because a court generally cannot find a defendant violated a probation condition
without determining the violation was willful. (People v. Galvan (2007) 155
Cal. App. 4th 978, 983.)
“Proper supervision includes the ability to make unscheduled visits and to
conduct unannounced searches of the probationer’s residence. Probation officer safety
during these visits and searches is essential to the effective supervision of the probationer
and thus assists in preventing future criminality.” (People v. Olguin (2008) 45 Cal. 4th
375, 381 (Olguin).) This is especially true where the defendant’s underlying offense was
possession of controlled substances. Officers must have ready access to the probationer’s
residence to verify the probationer’s compliance and prevent the disposal of illegal
15
substances. Of course, locked gates and fences, and potentially dangerous animals create
unreasonable obstacles to monitoring probationers. (Id. at p. 381 [“[a]nimals can be
unpredictable and potentially dangerous when faced with a stranger in their territory, and
some pose a great or even life-threatening hazard to persons in these circumstances”].)
Here, the condition does not prohibit Annalisa from locking her doors. It
only prohibits locked fences and gates, impediments beyond the house that might delay
access to the residence. Annalisa’s legitimate interests in security and in owning animals
can be balanced with the probation officer’s interests in ensuring she complies with the
terms of her probation. We therefore will modify the condition to require Annalisa to
notify the probation officer of any animals at her residence, and to comply with the
probation officer’s reasonable requests concerning animals. (Id. at p. 381 [condition
requiring probationer to notify probation officer of the presence of pets is reasonably
related to future criminality].) Annalisa also must notify the probation officer of any
locked gates and fences, and provide the probation officer with the means to access her
residence without having her unlock a gate or fence (for example, by supplying the
officer with a key to the gate or fence). We modify probation condition No. 9 as follows:
“Permit visits and searches of places of residence by Probation Department or law
enforcement agents to ensure compliance with the terms and conditions of probation;
probationer shall notify the probation officer of any animals at her residence, and comply
with the probation officer’s reasonable requests concerning animals; probationer shall
notify the probation officer of any locked gates and fences, and provide the probation
officer with the means to access probationer’s residence without having probationer
unlock a gate or fence (for example, by supplying the probation officer with a key to the
gate or fence).”
Probation condition No. 10 provides Annalisa must “[n]either possess nor
have under [her] control any dangerous or deadly weapons or explosive devices or
materials to make explosive devices.” She complains the phrase “dangerous or deadly
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weapon” can include common items, like kitchen knives or screwdrivers that are used to
inflict serious injury on another. She also complains the condition is vague because it
does not require possession to be personal and knowing. The Attorney General agrees
the phrase is overbroad and suggests modifying the condition to prohibit possession of
firearms and items designed for use as a weapon. We agree. Accordingly, we modify
probation condition No. 10 as follows: “Neither possess nor have under your control any
firearm or item designed for use as a weapon.”
We also agree with the Attorney General an express knowledge
requirement is unnecessary because knowledge is an implicit element in the concept of
possession. (People v. Kim (2011) 193 Cal. App. 4th 836, 846.) This also applies to
Annalisa’s complaint concerning probation condition No. 12, which provides “Neither
use nor possess any controlled substance without medical prescription. A physician’s
written notice is to be given to the probation officer.”
Condition No. 14 provides, “Not possess any type of drug paraphernalia, as
defined in” Health and Safety Code section 11364.5, subdivision (d). In addition to
complaining about the absence of a knowledge requirement, Annalisa argues section
11364.5 prohibits “possessing a significant number of items that have both drug-related
and common uses.” The Attorney General responds “it appears that the reference to the
statute’s list of items of drug paraphernalia is the best that can be done to describe the
items appellant is prohibited from possessing” and the court “should assume that the
probation officer and trial court in the case of a revocation hearing would review the
context and circumstances of the possession of any item believed to be drug
paraphernalia so as not to punish [her] for the possession of items unrelated to the use of
illegal drugs.” We note the statute qualifies the various items listed with the phrase
“intended for use or designed for use” in various processes associated with illicit drugs.
Thus, possession of “[b]lenders, bowls, containers, spoons, and mixing devices” are not
prohibited unless the devices are “intended for use or designed for use in compounding
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controlled substances.” (Health & Saf. Code, § 11364.5, subd. (d).) Annalisa would not
violate the condition unless she possessed a specified item designed for use with
controlled substances, or that she intended to use for that purpose. But the condition is
overbroad to the extent it prohibits possession of devices used with medically prescribed
controlled substances. There is no rehabilitative interest in preventing a defendant from
using instruments necessary for taking prescription medication. We hereby modify
condition No. 14 to read: “Not possess any type of drug paraphernalia, as defined in
Health & Safety Code section 11364.5, subdivision (d), except for any item used to
administer a medication defendant was medically prescribed.”
Condition No. 15 provides, “Neither possess nor consume any alcoholic
beverages nor enter places where such beverages are the chief item of sale, and submit to
tests at the direction of the probation officer.” She complains she could be violated for
“constructive possession of alcoholic beverages not known to her. She could also be
violated for consuming beverages – a holiday punch, for example – that, unknown to her,
contained alcohol.” As noted above, possession requires knowledge, and probation
violations must be willful. But the Attorney General agrees condition No. 15 should be
modified to prohibit “knowing entry into any place for the purpose of consuming
alcohol.” We hereby modify condition No. 15 to provide: “Neither possess nor consume
any alcoholic beverages nor knowingly enter a place for the purpose of consuming
alcohol.”
Finally, condition No. 18 provides, “Not associate with persons known to
defendant to be convicted felons or anyone actively engaged in criminal activity, or the
co-defendants (except those involved in recovery).” Annalisa contends the condition is
overbroad because it prohibits her from associating with codefendant Jaysun, a convicted
felon, who is her husband and the father of their children (who have since been adopted
by her mother-in-law). The Attorney General agrees “the condition should be modified
to exclude association with Jaysun Lauri as part of the prohibited conduct.” We hereby
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modify condition No. 18 to provide: “Not associate with persons known to defendant to
be convicted felons or anyone actively engaged in criminal activity, except Jaysun
Lauri.”
F. Substantial Evidence Does Not Support Jaysun’s Conviction for Transportation of
Methamphetamine
As noted above, on December 26, 2005, police stopped a car and found
methamphetamine in a briefcase Jaysun straddled between his legs while a passenger in
the rear seat. The jury convicted Jaysun of possession of the methamphetamine (Health
& Saf. Code, § 11377; count 14) as a lesser included offense of possession for sale
(Health & Saf. Code, § 11378). The jury also convicted Jaysun of transportation of
methamphetamine (Health & Saf. Code, § 11379; count 15). The jury expressly found he
“[t]ransported [the] methamphetamine for the purposes of personal use.”
Section 11379 provides in relevant part, “every person who transports,
imports into this state, sells, furnishes, administers, or gives away, or offers to transport,
import into this state, sell, furnish, administer, or give away, or attempts to import into
this state or transport any controlled substance [including methamphetamine] . . . shall be
punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal
Code for a period of two, three, or four years.” Courts have upheld convictions for
transportation of controlled substances “whether or not the evidence disclosed that the
contraband was intended for sale or distribution.” (People v. Rogers (1971) 5 Cal. 3d 129,
135.) But effective January 1, 2014, the Legislature added subdivision (c) to section
11379, which provides, “For purposes of this section, ‘transports’ means to transport for
sale.”
The Attorney General concedes the amended statute applies in this case and
requires reversal of Jaysun’s conviction for transportation of methamphetamine and the
associated enhancements. (People v. Rossi (1976) 18 Cal. 3d 295, 299-302 [defendant
entitled to benefit of change in law that decriminalizes acts forming the basis of his
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conviction]; In re Estrada, supra, 63 Cal. 2d 740 [when the Legislature acts to lessen
punishment for a crime it is inferred in the absence of evidence to the contrary the
Legislature intended the new statute to apply to all nonfinal cases].) Here, the jury
expressly found Jaysun transported methamphetamine as charged in count 15 for
personal use. Consequently, we must reverse Count 15 and the section 11370.2,
subdivision (c) enhancements attached to that count must be reversed and remand for
resentencing. (See People v. Navarro (2007) 40 Cal. 4th 668 [remand for a full
resentencing as to all counts is appropriate, so the trial court can exercise its sentencing
discretion in light of the changed circumstances]; People v. Burbine (2003) 106
Cal. App. 4th 1250, 1259 [“upon remand for resentencing after the reversal of one or more
subordinate counts of a felony conviction, the trial court has jurisdiction to modify every
aspect of the defendant’s sentence on the counts that were affirmed”].)
III
DISPOSITION
Annalisa’s probation conditions are modified (§ 1260) as indicated above.
The trial court is directed to prepare an amended sentencing minute order incorporating
the modifications and to provide a copy to the parties and the San Bernardino probation
department. Jaysun’s conviction under Health and Safety Code section 11379,
subdivision (a) as charged in count 15 of the second amended information is reversed, as
are the Health and Safety Code section 11370.2, subdivision (c) enhancements associated
with count 15. The matter is remanded to the trial court, which is directed to resentence
Jaysun. In all other respects, the judgment is affirmed.
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ARONSON, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
FYBEL, J.
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