Opinion
E031613.
7-15-2003
THE PEOPLE, Plaintiff and Respondent, v. RICHARD TERRENCE CHANNING, Defendant and Appellant.
John E. Roth, Public Defender, and Michael J. Kennedy, Deputy Public Defender, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lynne G. McGinnis and Erika Hiramatsu, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Richard Terrence Channing (hereafter, defendant) appeals from the trial courts order denying his motion under Penal Code section 995 to set aside the felony information charging him with cultivating marijuana in violation of Health and Safety Code section 11358. This is the third appeal in this case. The District Attorney of San Bernardino County filed the two prior appeals after the trial court granted defendants motion to suppress evidence and dismissed the marijuana cultivation charges. In the first appeal (E022765) the district attorney challenged the trial courts order denying a motion under section 871.5 to reinstate the complaint. We reversed the trial courts order. On remand the trial court granted the district attorneys motion and ordered the felony complaint reinstated. Defendant then filed a motion for reconsideration of the order reinstating the felony complaint, which the trial court granted and as a result vacated the order reinstating the complaint. The District Attorney filed another motion to reinstate the complaint and when the trial court denied that motion, the district attorney filed a second appeal (E026018).
That second appeal resulted in a published opinion, People v. Channing (2000) 81 Cal.App.4th 985, in which we reversed the trial courts orders suppressing the evidence and denying the district attorneys motion to reinstate the felony complaint. We directed the trial court to reinstate the complaint and resume the preliminary hearing, which had been terminated when the trial court dismissed the charges.
When the preliminary hearing resumed the trial court, over the prosecutors objection, allowed defendant to present additional testimony to support his claim that law enforcement had obtained the evidence against him in a search that violated the Fourth Amendment. Based on that additional evidence, which consisted of defendants testimony, defendant moved to set aside the information under section 995. The trial court denied that motion. Defendant then entered a plea of nolo contendere, pursuant to a plea agreement with the district attorney, to two counts of unlawfully cultivating marijuana.
In this appeal, defendant challenges the trial courts order denying his motion under section 995 to set aside the information. Defendant contends as he did in his original motion to suppress evidence and in his motion to set aside the information that the deputy sheriff who spotted the marijuana plants was on defendants property unlawfully. We disagree and therefore will affirm.
DISCUSSION
Our resolution of this appeal is governed by our earlier decision in People v. Channing, supra, 81 Cal.App.4th 985. In that case we held that the deputy sheriff who had observed marijuana plants growing under a green tarp behind defendants trailer located in a remote mountainous area known as Bowen Ranch had not violated defendants Fourth Amendment right to be free of unreasonable searches and seizures. The deputy sheriff went to Bowen Ranch after receiving a tip from a confidential informant that marijuana was being grown at that location. The deputy had trespassed over defendants property and was within 20 to 30 feet of several trailers when he spotted a green tarp and the marijuana plants. When the deputy contacted defendant, who was standing in front of one of the trailers, defendant asserted that he had a constitutional right to grow marijuana.
At the original hearing on defendants motion to suppress evidence, the parties stipulated that the area where the marijuana plants were growing was within the curtilage of defendants property and that in order to get to a point where he could see those plants, the deputy had trespassed over defendants property by about 200 or 300 feet through a lot of trees and rocks. The parties further stipulated that the point from which the deputy observed the marijuana plants was outside the curtilage. (People v. Channing, supra, 81 Cal.App.4th at p. 989.) Because the deputy was outside the curtilage, we held his observations of the marijuana plants within the curtilage of defendants property did not violate the Fourth Amendment, even though the deputy had to trespass to get to a location where he could see the plants. (Id. at pp. 990-991, citing United States v. Dunn (1987) 480 U.S. 294 [107 S. Ct. 1134, 94 L. Ed. 2d 326]; Oliver v. United States (1984) 466 U.S. 170 [104 S. Ct. 1735, 80 L. Ed. 2d 214]; and California v. Ciraolo (1986) 476 U.S. 207 [106 S. Ct. 1809, 90 L. Ed. 2d 210].)
In this appeal, defendant contends the deputy was within the curtilage. He bases that claim on his testimony, which the trial court allowed on remand, that the latrine area he and his family used was about 200 to 300 feet southeast from the green tarp under which the marijuana plants were located. According to defendant, the deputys observation point would have been between the trailer and the latrine. Therefore, defendant argued in the trial court that the deputy was within the curtilage of defendants property when he spotted the marijuana and that fact in turn renders the search unlawful under the Fourth Amendment.
The issue we must resolve in this appeal is whether defendants testimony regarding the location of the latrine requires us to conclude the deputy was within the curtilage and therefore that his observation of the marijuana plants violated the Fourth Amendment. For reasons we now explain defendants testimony does not require such a conclusion.
Although framed as a section 995 motion to set aside the information, defendant effectively moved on remand to suppress the deputys observations of the marijuana plants. Therefore, we review the trial courts ruling on that motion according to the standards pertinent to motions to suppress evidence and begin with the established principle that in reviewing a ruling on such a motion, "we are bound by the trial courts factual findings, whether express or implied, if they are supported by substantial evidence. However, we review questions of law independently to determine whether the challenged seizure meets constitutional standards of reasonableness." (People v. Boissard (1992) 5 Cal.App.4th 972, 977, citing People v. Loewen (1983) 35 Cal.3d 117, 123, 196 Cal. Rptr. 846, 672 P.2d 436; and People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal. Rptr. 867, 629 P.2d 961.)
Despite defendants testimony regarding the location of the latrine the trial court denied defendants motion to set aside the information. We must construe the trial courts ruling as including an implied finding that defendants testimony was not credible and therefore was not sufficient to overcome defendants original stipulation that the deputys vantage point was not within the curtilage. On appeal, we are bound by the trial courts resolution of the credibility issue. (People v. Boissard , supra, 5 Cal.App.4th at p. 977.) Because the trial court did not believe defendants testimony, the trial court impliedly found that the deputy was not within the curtilage. As we held in People v. Channing, supra, 81 Cal.App.4th 985, such a search is lawful.
Defendant also argues that observations of items within the curtilage, even if made from a lawful vantage point, violate the Fourth Amendment according to the Supreme Court s decision in People v. Camacho (2000) 23 Cal.4th 824, decided a month after we decided People v. Channing. Defendants understanding of Camacho is wrong.
In Camacho two police officers walked around the side of the defendants house at 11 p.m. and looked into the defendants bedroom through an uncovered window. Because observations made by law enforcement officers standing in a place where they otherwise have the right to be do not violate the Fourth Amendment (People v. Camacho, supra, 23 Cal.4th at pp. 831-832, citing California v. Ciraolo, supra, 476 U.S. at p. 213), the issue in Camacho, broadly stated, was whether the officers "were legally entitled, under all the circumstances, to be in defendants side yard." (People v. Camacho , supra, 23 Cal.4th at p. 832.) That is the issue we addressed in People v. Channing,supra , and Camacho does not alter our resolution of that issue, defendants contrary claim notwithstanding.
In summary, in denying defendants motion to dismiss, the trial court impliedly found the deputy was not within the curtilage because the trial court did not believe defendants testimony on that point. We are bound by the trial courts implied findings and therefore must conclude that the trial court properly denied defendants motion. Whether the deputy may have trespassed across open fields in order to get to his observation point is irrelevant. (People v. Camacho, supra, 23 Cal.4th at p. 836.)
DISPOSITION
The judgment is affirmed.
We concur: Ward,J., and Gaut, J. --------------- Notes: All further statutory references are to the Penal Code unless indicated otherwise.