P. v. Newman

Filed 9/24/02 P. v. Newman CA2/4
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES NEWMAN,
Defendant and Appellant.
B155445
(Super. Ct. No. BA214756)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Craig E. Veals, Judge. Affirmed.
David C. Read, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General,
William T. Harter and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff
and Respondent.

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Defendant asks the court to overturn his felony conviction for possession of
a controlled substance, cocaine, in violation of Health and Safety Code section
11350(a), and possession of a concealed weapon in violation of Penal Code section
12020, subdivision (a)(4).1 He argues the trial court erred in failing to grant his
motion to suppress evidence; that the inadvertent destruction of the weapon
requires reversal of the weapons conviction; and that CALJIC 17.41.1 interfered
with jury deliberations, requiring reversal of his conviction. We find no reversible
error and affirm.
FACTUAL SUMMARY
Los Angeles Police Department uniformed officers Malik and Guillen were
on bicycle patrol in downtown Los Angeles on a March, 2001 afternoon. Officer
Malik noticed defendant, who was standing on the sidewalk “holding a small
orange juice container using only two fingers with the rest of his hand closed.”
Officer Malik thought this was strange because “most people hold any type of
container in their hand [with] more than just their two fingers.” Officer Malik
decided to investigate. Officer Guillen followed. They circled back and rode up
onto the sidewalk. Defendant was talking to a friend and eating a sandwich.
Neither officer had seen him before and neither was aware that defendant was on
parole and subject to a search condition.
Officer Malik stopped his bicycle about two feet from the defendant and
asked him “how it was going and what he had in his hand.” Defendant answered,
“I don’t have anything.” Officer Malik asked him again, “a little bit more
forcefully, ‘What do you have in your hand?’” This time defendant answered,
“Man, they’re just crumbs” and opened up his hand. Officer Malik then observed
1 All further statutory references are to the Penal Code, unless otherwise noted.

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“two rock like objects” fall from his hand. Police collected the rock like objects.
Later analysis revealed no illegal substances.
After collecting the objects, Officer Malik asked defendant if he had
anything that might “cut or stick” in a patdown search. Defendant replied that he
had a knife in his waistband. Police found the knife, which was approximately 11
inches long with a seven inch, nonfolding blade. The knife was housed in a
cardboard sheath. Although police registered the knife at the property room, it was
later destroyed. During booking, police also found an object resembling rock
cocaine in defendant’s pocket. This time the substance tested positive for cocaine.
DISCUSSION
Defendant claims his Fourth Amendment rights were violated when police
detained him without justification. The trial court found that the encounter
between defendant and the officers was consensual, and denied defendant’s section
1538.5 motion to exclude evidence found as a result of the encounter. We find the
motion was property denied fro another reason: defendant was subject to a valid
parole search condition. Because of this condition, he lacked a reasonable
expectation of privacy from search by a police officer, and this is true even though
the officer was unaware of his parole condition. In light of this conclusion,
although we regard the detention by itself to be problematic, we need not and do
not decide the issue because defendant was subject to the search condition.
I
Defendant argues that officers should not be permitted to justify an
otherwise unconstitutional search and seizure based on his parole search condition
of which the officers were unaware when the search and seizure occurred. On
appellate review, factual findings of lower courts are upheld if supported by
substantial evidence. But when reviewing questions of law, such as whether a

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search or seizure was reasonable, we exercise independent judgment. (People v.
Camacho (2000) 23 Cal.4th 824, 830.)
A search conducted on an adult parolee, subject to a properly imposed
search condition, does not intrude on any expectation of privacy society is prepared
to recognize as legitimate. (People v. Reyes (1998) 19 Cal.4th 743, 752-754.)
Reyes relies on the holding in In re Tyrell J., supra, 8 Cal.4th 68. In that case, our
Supreme Court held that a peace officer who, without prior justification, searches a
juvenile probationer subject to a search condition does not violate the Fourth
Amendment rights of the minor even if the officer is ignorant of the condition. In
People v. Robles (2000) 23 Cal.4th 789, the Supreme Court refused to extend
Tyrell J. to search of a residence shared by the defendant and a third party
roommate who was subject to a probation search condition. (In re Tyrell, J., supra,
23 Cal.4th at pp. 805-806.) In the same month, the court indicated that it would
reconsider the holding in Tyrell J. (People v. Moss, review granted June 26, 2000,
S087478). The Court later dismissed the grant of review in Moss but ordered
briefing in People v. Sanders (review granted March 25, 2002, S094088) on
whether to reconsider the holding in Tyrell J., and whether, if the Tyrell J. holding
remains viable, it should apply to adult parolees subject to search conditions. We
also note that the Supreme Court recently cited Tyrell J. with approval in In re
Randy G. (2001) 26 Cal.4th 556, 564. Although it appears that the Supreme Court
will ultimately reconsider its decision in Tyrell J. at present, that case remains
binding on this court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)
In People v. Reyes, officers searched the defendant’s shed at the request of
his parole officer who had received a tip that defendant had violated his parole.
Defendant was subject to a valid search condition under his parole release. The
court applied the logic of Tyrell J., which held that a juvenile probationer with a

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valid search condition had a greatly reduced expectation of privacy. (People v.
Reyes, supra, 19 Cal.4th at pp. 753-754; In re Tyrell J., supra, 8 Cal.4th 68, 88.)
The Tyrell J. court reasoned that a probationer who knows he is subject to search
of his person or home without probable cause or a warrant lacks a reasonable
expectation of privacy over his property or person; thus, no greater intrusion into
his privacy occurs when an officer, unaware of the condition, conducts a search.
(In re Tyrell J. supra, 8 Cal.4th at p. 88.) The Court in Reyes reasoned that the
logic of Tyrell J. applies “‘equally, if not more so, to parolees.’” (People v. Reyes,
supra, 19 Cal.4th at p. 751.) Thus, even a suspicionless intrusion by officers is
justified against an individual who is subject to a parole condition the person
searched or detained must first have a reasonable expectation of privacy before
there can be a Fourth Amendment violation. (In re Tyrell J., supra, 8 Cal.4th at
p. 89.)
In this case, no evidence suggests that officers Malik or Guillen knew of the
search condition or defendant’s parole status. But a parolee is obviously on notice
of his own parole condition. Thus, defendant did not have a reasonable
expectation of privacy from search and officers did not violate his Fourth
Amendment rights.
In his reply brief, defendant contends that under section 3067 his is not
subject to a parole search condition. That statute provides, in general, that a prison
inmate who is subject to parole “shall agree in writing” to a search condition of
parole (subd. (a)); failure to agree results in loss of “worktime credit earned”
pursuant to section 2930 et seq. (subd. (b)). This law enacted in 1996, applies only
to inmates who are eligible for parole for an offense committed on or after January
1, 1997 (subd. (c)). Because the offense for which defendant was serving time was
committed in 1993, he argues that section 3067 does not apply to him. It
apparently does not, but it is not the only basis under which the state can require a

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parole search condition. The state may impose any condition reasonably related to
parole supervision that does not constitute harassment. (See § 3053, subd. (a)
[upon granting any parole Board of Prison Terms may impose “any conditions that
it may deem proper”].) If the Legislature had intended section 3067 to prevent
imposition of search conditions on parolees who committed offenses before 1997,
it doubtless would have said so; it did not. Defendant agreed in writing to the
imposed parole search condition.
II
Defendant was convicted of carrying a dirk or dagger, in violation of section
12020, subdivision (a)(4). The prosecution failed to introduce the weapon into
evidence because it had been destroyed after the officers booked it as a property
item. Because the weapon was not introduced at trial, defendant claims the
evidence was insufficient to support his conviction.
“‘The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view
the evidence in the light most favorable to the People and must presume in support
of the judgment the existence of every fact the trier could reasonably deduce from
the evidence. [Citation.]’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, quoting
People v. Jones (1990) 51 Cal.3d 294, 314.)
Section 12020, subdivision (a)(4) makes it illegal for anyone to carry a dirk
or dagger concealed on his or her person. The statute does not require the
introduction of the weapon into evidence; elements of the offense may be
established through witness testimony. Evidence Code section 411 provides that
“[e]xcept where additional evidence is required by statute, the direct evidence of
one witness who is entitled to full credit is sufficient for proof of any fact.” (Evid.
Code, § 411.)

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A rational trier of fact could have believed the testimony of Officers Malik
and Guillen describing the knife and where it was found: that the knife was
concealed under defendant’s shirt, sticking out of his waistband; that it was
approximately 11 inches long with a seven or seven and one-half inch blade that
appeared sharpened on the end; and that it resembled a butcher’s knife with a
nonfolding blade, and that was encased in a cardboard sheath.
This is sufficient evidence to support defendant’s conviction for violation of
section 12020, subdivision (a)(4).
IV
Defendant argues the trial court erred when it instructed the jury using
CALJIC No. 17.41.1.2 Since briefing in this case, the Supreme Court has held that
this instruction should not be given in future criminal trials, but that it does not
infringe upon a defendant's federal or state constitutional right to trial by jury or his
state constitutional right to a unanimous verdict, and does not require reversal of a
defendant’s conviction. (People v. Engelman (2002) 28 Cal.4th 436, 440.)
2 CALJIC No. 17.41.1 states: “The integrity of a trial requires that jurors, at all times
during their deliberations, conduct themselves as required by these instructions.
Accordingly, should it occur that any juror refuses to deliberate or expresses an intention
to disregard the law or to decide the case based on [penalty or punishment, or] any [other]
improper basis, it is the obligation of the other jurors to immediately advise the Court of
the situation.” (CALJIC No. 17.41.1.)

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
EPSTEIN, J.
We concur:
VOGEL (C.S.), P.J.
HASTINGS, J.

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