Filed 2/25/14 P. v. Lundy CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065027
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF138323A)
                   v.

SCOTT DAVID LUNDY,                                                                       OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John S. Somers
and David R. Lampe, Judges.*
         John Steinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*     Judge Lampe ruled on the motion to suppress evidence and quash the search
warrant. Judge Somers presided over the trial.
       A jury convicted appellant Scott David Lundy of lewd or lascivious acts with a
child less than 14 years of age (Pen. Code, § 288, subd. (a)) (all further unspecified
statutory references are to the Penal Code), possession of child pornography (§ 311.11,
subd. (b)), and developing or printing child pornography (§ 311.3). He claims the trial
court erred in denying his motion to suppress evidence and quash the search warrant.
Lundy also contends the trial court erred in imposing concurrent sentences on the two
section 311.3 counts because section 654 requires any punishment be stayed as to these
counts. We reject Lundy’s contentions and affirm the judgment.
                    FACTUAL AND PROCEDURAL SUMMARY
       On April 29, 2010, around 6:30 a.m., Kern County Sheriff’s Deputy John Nobles
was on patrol and came upon a pickup truck with a camper shell stopped in the middle of
the roadway, creating a hazard by blocking traffic from both directions. Nobles stopped
and approached Lundy, who was seated inside the truck, and asked him why he was
parked in the middle of the roadway.
       Lundy told Nobles that people were chasing him and someone inside his truck had
a pistol and was trying to kill him. Lundy also stated he had video evidence in his truck
of child molestation and that he had tried to report the crime to the Bakersfield Police
Department. Nobles checked the truck and found no one inside.
       After checking the truck, Nobles placed Lundy under arrest for being under the
influence of a controlled substance. Regarding the truck, Nobles filled out a storage
form, checked the truck for personal property, and had the truck towed and impounded.
In checking the truck for impound purposes, Nobles spotted a cell phone, camera, iPod,
and some type of storage device for a computer. He turned off the cell phone and while
doing so saw what he believed was a “suspicious photograph.” He sealed all the items
and booked them as property.




                                             2.
         When Lundy tried to retrieve his truck from impound the next day, a deputy told
him the truck had been seized as evidence. Lundy then asked if he could retrieve his
possessions from the truck and the deputy told him no.
         Based upon Lundy’s statements that he had video evidence of child molestation in
his truck, Nobles sought and on May 6, 2010, obtained a search warrant for the vehicle
and contents. The search warrant was to authorize the technical division to search the
electronic devices and download any photographs, pictures, or other information that may
have been on the devices.
         Nobles did not alter any of the devices or their content prior to sealing them, and
he delivered the devices, still sealed, to the technical division after obtaining the search
warrant. The technical division provided Nobles with a CD that contained the
information that had been downloaded from the devices.
         When the devices were examined by a technician, homemade videos were found,
including one that depicted Lundy in a garage with his 13-year-old niece. His niece was
wearing a bathing suit and was unaware Lundy was filming her. At one point in the
video, Lundy pulled down the bottom piece of her bathing suit.
         Also depicted on video was a separate incident where the niece put money into her
bra; Lundy reached into her bra to get the money and touched the girl’s breast.
Additionally, the technician found still photos of child pornography on Lundy’s hard
drive.
         On November 23, 2011, Lundy was charged with one count of lewd or lascivious
acts on a child under 14 years of age (count 1), one count of possession of child
pornography (count 2), and two counts of developing, duplicating, printing, or
exchanging child pornography (counts 3 and 4).
         Suppression Hearing
         Lundy moved to suppress the evidence taken from his truck and to quash the
warrant.

                                               3.
       In the affidavit Nobles submitted to obtain the search warrant, he stated Lundy
told him he had tried to report to the Bakersfield police that his niece had been molested.
Lundy indicated he recorded the molestation and the recording was in his truck. Nobles’s
affidavit further stated that Lundy had a criminal record with two prior convictions for
the sexual exploitation of children, a violation of section 311.3, subdivision (a). Nobles
opined that in his experience “pedophiles and child molesters like to take pictures[] and
videos of their victims.” Finally, Nobles stated that the Bakersfield Police Department
had told him that Lundy’s sister and niece denied that the niece had been molested but
confirmed that Lundy was secretly recording the niece.
       At the hearing on the suppression motion, Nobles testified he arrested Lundy for
being under the influence of a controlled substance. Consequently, Nobles impounded
the truck and collected the personal property from the truck. The personal property was
collected in order to inventory the items and then sealed and secured to protect the items
from loss. Nobles also acknowledged collecting and securing the devices in order to
search the items for evidence of a child molestation that Lundy stated he had evidence of,
which would be done after obtaining a search warrant.
       The trial court denied the suppression motion, finding that the initial search of the
contents of the truck was a valid search incident to Lundy’s arrest and the impoundment
of the truck. The trial court further found that the affidavit in support of the warrant set
forth facts establishing a “fair probability” that the items subject to seizure contained
evidence of child molestation based upon Lundy’s criminal record and his statements to
Nobles.
       Trial
       Trial commenced on April 12, 2012. The jury found Lundy guilty as charged on
all counts. On May 23, 2012, the trial court sentenced Lundy to eight years on count 1, a
consecutive 16 months on count 2, a concurrent 16 months on count 3, and a concurrent
16 months on count 4.

                                              4.
                                       DISCUSSION
        Lundy claims the trial court erred in denying his motion to suppress evidence and
quash the search warrant. He also contends the trial court erred in imposing concurrent
sentences on the two section 311.3 counts because section 654 requires any punishment
be stayed as to these counts.
I.      Motion to Suppress
        On review of a trial court’s denial of a suppression motion, we defer to the trial
court’s factual findings if supported by substantial evidence, but exercise our independent
judgment to determine whether, on the facts found, the search or seizure was reasonable
under the Fourth Amendment. (People v. Camacho (2000) 23 Cal.4th 824, 830;
People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Russell (2000) 81 Cal.App.4th 96,
102.)
        Inventory Search
        Lundy asserts there was no valid basis upon which to conduct a search of his truck
without a warrant. We disagree. Once Lundy was placed under arrest, he was subject to
a search of his person and the area immediately within his control, which included the
cab of the truck, as part of a search incident to arrest. (New York v. Belton (1981) 453
U.S. 454, 460; People v. Stoffle (1991) 1 Cal.App.4th 1671, 1682-1683; In re
Humberto O. (2000) 80 Cal.App.4th 237, 241.)
        Once a vehicle is impounded when the driver is arrested, an inventory search is an
incidental administrative step following impound. (Illinois v. LaFayette (1983) 462 U.S.
640, 643-644.) An inventory search of an impounded vehicle is reasonable under the
Fourth Amendment provided law enforcement has a standardized policy regarding the
impound decision and search. (Colorado v. Bertine (1987) 479 U.S. 367, 374 (Bertine).)
        When an inventory search is conducted based on a decision to impound a vehicle,
appellate courts focus on the purpose of the impound, since an inventory search
conducted pursuant to an unreasonable impound is itself unreasonable. (People v.

                                              5.
Aguilar (1991) 228 Cal.App.3d 1049, 1053.) If an officer is justified in impounding a
vehicle, a warrantless inventory search of the vehicle pursuant to a standardized
procedure is constitutionally reasonable. (South Dakota v. Opperman (1976) 428 U.S.
364, 372 (Opperman); People v. Williams (2006) 145 Cal.App.4th 756, 761.)
       Lundy’s vehicle was impounded at the time of his arrest; the vehicle was in the
middle of the road blocking traffic in both directions. The impoundment of the vehicle
was constitutionally reasonable under the community caretaking doctrine and a police
officer’s duty to prevent Lundy’s vehicle from further creating a hazard to other drivers
or being a target of vandalism. (Miranda v. City of Cornelius (9th Cir. 2005) 429 F.3d
858, 864 (Miranda).)
       Vehicle Code section 22651 also provides standardized criteria governing
vehicular impoundment. (People v. Green (1996) 46 Cal.App.4th 367, 375; People v.
Benites (1992) 9 Cal.App.4th 309, 327; People v. Salcero (1992) 6 Cal.App.4th 720,
723.) In relevant part, Vehicle Code section 22651, subdivision (h)(1) provides that a
peace officer may impound a vehicle when the driver is arrested and taken into custody,
as Lundy was in this case.
       Under either established legal doctrine or Vehicle Code section 22651, the
impoundment of Lundy’s car was constitutionally reasonable. (Miranda, supra, 429 F.3d
at p. 864.)
       Since the impoundment was constitutionally reasonable, it follows that the
inventory search of the vehicle was reasonable if conducted pursuant to standardized
procedures. (Opperman, supra, 428 U.S. at p. 372.) Nobles testified that the Kern
County Sheriff’s Department has a written policy governing inventory of impounded
vehicles. The purpose of the policy is to document any loose or valuable items in a
vehicle to prevent loss. Nobles inventoried the contents of Lundy’s truck in accordance
with the policy.



                                            6.
       The police have a legitimate interest in taking an inventory of the contents,
including closed containers, in vehicles they legally tow and impound. (People v.
Williams (1999) 20 Cal.4th 119, 126.) Inventory searches are thus an exception to the
warrant requirement. (Florida v. Wells (1990) 495 U.S. 1, 4; Bertine, supra, 479 U.S. at
p. 371.) Inventory searches serve to (1) protect an owner’s property while it is in the
custody of the police, (2) insure against claims of lost, stolen, or vandalized property, and
(3) guard the police from danger. (Bertine, at p. 372.)
       We conclude the policy of the Kern County Sheriff’s Department was sufficiently
standardized to satisfy the Fourth Amendment and that in conducting an inventory of
Lundy’s truck—both the contents of the cab and inside the camper shell—Nobles
exercised his discretion in accordance with the standard procedure. (People v. Needham
(2000) 79 Cal.App.4th 260, 267 (Needham).)
       Lundy was placed under arrest for driving under the influence, his truck was
impounded pursuant to Vehicle Code section 22651, subdivision (h)(1), and an inventory
search of the truck was conducted in accordance with standardized procedures of the
Kern County Sheriff’s Department. We conclude the inventory search was reasonable
and not in violation of the Fourth Amendment. (Needham, supra, 79 Cal.App.4th at
pp. 267-268.)
       Seizure and Search of Video Equipment
       The trial court found that Nobles lawfully seized and held separate the electronic
items found in the truck based upon Lundy’s statement to Nobles that he had in his
vehicle a video recording of a sexual assault of his niece pending a search warrant to
search what was recorded in the items. Nobles then obtained a search warrant and the
contents of the electronic equipment were searched.
       Lundy contends that Nobles could not hold the electronic equipment lawfully
pending a search warrant and there was insufficient probable cause to support the search



                                             7.
warrant authorizing a search of the contents of the electronic equipment. We disagree
with both of these contentions.
       An exception often applied to the collection of evidence is probable cause plus
exigent circumstances. An officer may seize a container without a warrant if the officer
has probable cause to believe the container holds contraband or evidence of a crime and
if there are exigent circumstances that require the immediate seizure without a warrant.
(Texas v. Brown (1983) 460 U.S. 730, 749-750 (conc. opn. of Stevens, J.); United
States v. Jacobsen (1984) 466 U.S. 109, 121-122; People v. Robinson (1974) 41
Cal.App.3d 658, 669-670.)
       Nobles had probable cause to believe the electronic equipment contained evidence
of a crime. Lundy told Nobles he had evidence of a crime on a video camera and a
SanDisk card, which were in his truck. Probable cause requires only that the facts
available to the officer would warrant a person of reasonable caution to believe that the
item may contain evidence of a crime; no showing is required that such a belief is correct
or more likely true than false. (People v. Stokes (1990) 224 Cal.App.3d 715, 719.)
       Exigent circumstances also existed. Exigent circumstances are those that would
cause a reasonable officer to believe immediate action is necessary to prevent, among
other things, the destruction of relevant evidence or some other consequence improperly
frustrating legitimate law enforcement efforts. (United States v. Licata (9th Cir. 1985)
761 F.2d 537, 543.) Thus, the threat that evidence will be destroyed or lost before the
officer can obtain a warrant is a valid exigent circumstance justifying the officer’s
immediate seizure of the evidence. (See Segura v. United States (1984) 468 U.S. 796,
808; Cupp v. Murphy (1973) 412 U.S. 291, 296.) Nobles seized the electronic equipment
and secured these items at the sheriff’s substation as possible evidence of a crime, while
the truck and balance of the contents were towed and stored by a local tow company.
Securing the electronic equipment separately while a search warrant was obtained



                                             8.
prevented any destruction or tampering of the possible evidence of a crime, which might
have occurred if the items had been left in the truck.
       We also conclude there was ample probable cause for the issuance of the warrant.
Probable cause to issue a search warrant exists when “the information on which the
warrant is based is such that a reasonable person would believe that what is being sought
will be found in the location to be searched. [Citation.]” (People v. Stanley (1999) 72
Cal.App.4th 1547, 1554.) The burden is on the defendant to establish the invalidity of a
search warrant. (People v. Garcia (2003) 111 Cal.App.4th 715, 720.)
       The affidavit in support of the warrant set forth (1) Lundy stated to Nobles that
Lundy’s niece had been molested; (2) Lundy had video evidence of the molestation;
(3) the evidence was in the video equipment to be found in Lundy’s truck; and
(4) Lundy’s criminal record showed he had two prior convictions for the sexual
exploitation of children. Nobles also stated in the affidavit that the Bakersfield Police
Department had contacted Lundy’s sister and niece, who denied that a specific sexual
assault had occurred, but did acknowledge that Lundy had secretly recorded the niece.
Nobles also opined in the affidavit that based upon his experience “pedophiles and child
molesters like to take pictures[] and videos of their victims.”
       Lundy seems to believe that probable cause to issue the warrant was lacking
because the niece denied any specific sexual assault had occurred. Not so. Lundy’s
statements that (1) he recorded evidence of a molestation and that the recorded evidence
was in the video equipment in his truck, (2) the acknowledgement by the niece that
Lundy had been secretly recording her, (3) Nobles’s experience with child molesters
videotaping their crimes, and (4) Lundy’s prior sexual misconduct with minors all
provided a substantial basis for concluding that there was a fair probability evidence of a
crime would be found in the equipment to be searched. (People v. Deutsch (1996) 44
Cal.App.4th 1224, 1232.)



                                             9.
       The information set forth in Nobles’s affidavit in support of the search warrant
provided “a substantial basis for concluding a fair probability existed that a search would
uncover wrongdoing. [Citations.]” (People v. Kraft (2000) 23 Cal.4th 978, 1040.)
Therefore, the trial court properly denied the motion to suppress.
II.    Sentence
       Lundy contends the trial court erred when it imposed concurrent sentences on the
section 311.3 offenses. He maintains the terms imposed for these two counts should have
been stayed pursuant to section 654 because count 2 comprised the same conduct and a
term was imposed for that count. He is incorrect.
       Lundy was convicted of two counts of violating section 311.3, defined as sexual
exploitation of a child by developing, duplicating, printing or exchanging information,
data, or images of a minor engaged in sexual conduct. The two convictions were based
on two of the recordings Lundy made of his niece.
       One recording showed Lundy and his niece in a garage. The child had just
finished swimming and was wearing a bathing suit. At one point, Lundy pulled down his
niece’s bathing suit, exposing her buttocks. A second video showed an incident where
the niece had been changing in the bathroom and the video showed her genital area. The
recordings were made at two different times.
       The count 2 offense is possession of child pornography. There were multiple still
photos of child pornography recovered from Lundy’s hard drive. The information sets
forth a date of April 29, 2010, for the count 2 offense; the count 3 and 4 offenses are
stated to have occurred between October 1 and 31, 2009.
       “Section 654 precludes multiple punishment for a single act or indivisible course
of conduct punishable under more than one criminal statute. Whether a course of
conduct is divisible and therefore gives rise to more than one act within the meaning of
section 654 depends on the ‘intent and objective’ of the actor. [Citation.] If all of the
offenses are incident to one objective, the court may punish the defendant for any one of

                                             10.
the offenses, but not more than one. [Citation.] If, however, the defendant had multiple
or simultaneous objectives, independent of and not merely incidental to each other, the
defendant may be punished for each violation committed in pursuit of each objective
even though the violations share common acts or were parts of an otherwise indivisible
course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-
268.)
        Whether the defendant possessed multiple objectives and intents within the
meaning of section 654 is a factual question. We will uphold a trial court’s explicit or
implicit finding if it is supported by substantial evidence. The trial court’s determination
is viewed in the light most favorable to the People, and we presume the existence of
every fact that reasonably could be deduced from the evidence. (People v. Jones (2002)
103 Cal.App.4th 1139, 1143.)
        Lundy seems to assume that the count 2 offense is based on the video recordings
that form the bases of counts 3 and 4—rather than on the still photos of child
pornography found on the hard drive. Assuming this is correct, the offense of possession
of child pornography set forth in section 311.11 is distinguishable from the offense of
sexual exploitation of a child set forth in section 311.3. (See People v. Hertzig (2007)
156 Cal.App.4th 398, 403.) Section 311.3 requires the development, duplication,
printing, or exchanging of material depicting the sexual exploitation of a child; section
311.11 requires simply a knowing possession of child pornography; one need not have
developed, printed, or exchanged the material.
        The trial court noted this distinction at sentencing and found that counts 3 and 4
involved the production and development of two separate pieces of material sexually
exploiting a minor. These offenses occurred between October 1 and 31, 2009. The count
2 offense, possession of child pornography, occurred on April 29, 2010. The evidence
and the language of the respective statutes support a finding that the count 3 and 4
offenses, which occurred on two different occasions, necessitated a separate intent and

                                             11.
objective from that required to satisfy the count 2 offense. Thus, we uphold the trial
court’s finding. (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.)
                                     DISPOSITION
       The judgment is affirmed.

                                                                _____________________
                                                                          CORNELL, J.


WE CONCUR:


 _____________________
HILL, P.J.


 _____________________
LEVY, J.




                                            12.
