Filed 12/3/14 P. v. Pineda CA4/2

                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FOURTH APPELLATE DISTRICT

                                                  DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059941

v.                                                                       (Super.Ct.No. RIF1300655)

DAVID OVANDO PINEDA,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge.

Affirmed.

         Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina, and

Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.




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                                              I

                                   INTRODUCTION

       On January 28, 2013, a complaint charged defendant and appellant David Ovando

Pineda with cultivating marijuana under Health and Safety Code section 11358 (count 1);

possession of marijuana for sale under Health and Safety Code section 11359 (count 2);

and theft of utilities over $950 under Penal Code section 498, subdivision (d) (count 3).

       On April 30, 2013, the trial court denied defendant’s motion to suppress evidence

under Penal Code section 1538.5. Defendant filed a writ of mandamus which we

summarily denied.

       On May 14, 2013, the People filed an information with the same charges as the

complaint. Defendant filed a motion to set aside the information on the same ground as

the motion to suppress. The trial court denied the motion. Defendant filed a writ of

mandamus which we denied.

       On August 26, 2013, defendant pled guilty to all charges. The trial court found

that there was a factual basis for the plea. On September 23, 2013, the court sentenced

defendant to an aggregate term of two years in prison, as follows: one year and four

months (count 1); stayed concurrent term of one year and four months (count 2); and

consecutive term of eight months (count 3).

       On October 30, 2013, defendant filed a timely notice of appeal, challenging the

denial of his motion to suppress. Defendant requested a certificate of probable cause,

which the court granted. For the reasons set forth below, we find that the trial court

properly denied defendant’s motion to suppress.

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                                              II

                               STATEMENT OF FACTS1

       On December 13, 2012, in Perris, California, the Riverside County Sheriff’s

Department responded to a report that two subjects were breaking into a residence on

Akina Avenue. When deputies arrived, there were no suspects at the residence.

However, during a security sweep, the deputies discovered a fully operational

hydroponics marijuana grow house. Deputy Pentel executed a search warrant for the

Akina Avenue home. In a search of the home, Deputy Pentel seized “marijuana plants

and other evidence.” The deputy also discovered rental receipts for the Akina Avenue

house and a house on Bearberry Drive in Moreno Valley. The receipts were attached to

each other, and defendant’s name appeared on the Bearberry Drive receipt as the payor.

Although Deputy Pentel knew that a female named Jeanette lived at the Akina Avenue

house, he discovered male clothing in one of the closets. The discovery of the clothes, in

addition to the rental receipts, led the deputy to believe that defendant lived at both

homes.

       Riverside County Sheriff’s Department Investigator Joshua Parker is a part of the

Special Investigations Bureau Marijuana Eradication Team. He has significant

experience investigating narcotics-related crimes, and is familiar with the modes of

operation of marijuana growers. He has conducted over 100 investigations involving the


       1      Since defendant pled guilty, the statement of facts is derived from the
evidentiary hearing on the motion to suppress, the search warrant affidavit, and the
probation report.

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indoor cultivation of marijuana. Based on his training and experience, he believes that

people who are known to operate one grow house will often also operate other grow

houses. He is also able to identify marijuana.

       After learning about the rent receipts, Investigator Parker twice visited the

Bearberry Drive home. He testified that it was “a single-story tract home.” The front of

the house was unfenced and did not have a “No Trespassing” sign. The driveway of the

house was the length of a car, and ran from the garage to the sidewalk. Although there

were windows at the top of the garage door, a passerby could not see through the garage

windows from the street.

       On December 18, 2012, at approximately 8:00 p.m., Investigator Parker

approached the house on foot. As soon as he stepped onto the driveway, he heard the

sound of air conditioning fans. Investigator Parker continued to walk up the driveway

until he was close enough to touch the garage door. Investigator Parker was able to stand

on the tips of his toes and see through the windows at the top of the garage door. When

he did, he saw that construction was underway on the interior walls within the garage.

While standing next to the garage door, he could also smell marijuana. The investigator

testified that it was a cold night on December 18, and that there was no need for an air

conditioner to be running. He explained that marijuana grow houses frequently run air

conditioning regardless of the outside climate because the lights used to grow marijuana

generate heat. Investigator Parker also testified that operators of grow houses will often

construct interior walls, such as those found in the Bearberry Drive home.



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       On January 11, 2013, at 5:30 a.m., Investigator Parker returned to the Bearberry

Drive home. As he neared the garage, he again heard the sound of air conditioning fans

and detected the odor of marijuana.

       Investigator Parker explained that he was not attempting to make contact with

defendant on either December 18 or January 11. He never knocked on the front door.

On both occasions, he was investigating the potential grow house and did not want to

alert defendant.

       Based on the constant sound of air conditioning fans, the odor of marijuana, and

that the rent receipt for the Bearberry Drive house was found in the Akina Avenue grow

house, Investigator Parker obtained a search warrant for the Bearberry house.

       When the search warrant was executed, defendant was home with his seventeen-

year-old son. Investigators found 603 marijuana plants. Three bedrooms had been

converted to hydroponic grow rooms, with light hoods, ballasts, air conditioning units,

fans, and electric switch timers. Another room had been specially configured to foster

the growth of immature marijuana plants. Two other rooms had been designed to care for

mature marijuana plants. The garage was used to grow clones, and contained an electric

bypass, installed below the electric meter, to allow for theft of electricity. Southern

California Edison Revenue Protection Investigator Pat Shepherd estimated theft of

$5,400 of electricity.

       Defendant, after given his rights under Miranda, admitted that the marijuana

inside the residence belonged to him and he obtained the installation of the electric



                                              5
bypass to save money on his electric bill. He expected to sell the marijuana for $1,500

per pound.

       Defendant was subsequently arrested and charged.

                                             III

                                        ANALYSIS

       On appeal, defendant contends that the trial court erred in denying his motion to

suppress on the ground that Investigator Parker violated his Fourth Amendment rights by

searching the grounds of his home without a warrant. We disagree.

       A. The Fourth Amendment

       “The Fourth Amendment provides ‘[t]he right of the people to be secure in their

persons, houses, papers and effects, against unreasonable searches and seizures, shall not

be violated . . . .’ (U.S. Const., 4th Amend.) This guarantee has been incorporated into

the Fourteenth Amendment to the federal Constitution and is applicable to the states.

[Citation.] A similar guarantee against unreasonable government searches is set forth in

the state Constitution (Cal. Const., art. I, § 13) but, since voter approval of Proposition 8

in June 1982, state and federal claims relating to exclusion of evidence on grounds of

unreasonable search and seizure are measured by the same standard. [Citations.] ‘Our

state Constitution thus forbids the courts to order the exclusion of evidence at trial as a

remedy for an unreasonable search and seizure unless that remedy is required by the

federal Constitution as interpreted by the United States Supreme Court.’” (People v.

Camacho (2000) 23 Cal.4th 824, 829-830 (Camacho).)



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       “In reviewing the trial court’s ruling on the suppression motion, we uphold any

factual finding, express or implied, that is supported by substantial evidence, but we

independently assess, as a matter of law, whether the challenged search or seizure

conforms to constitutional standards of reasonableness.” (People v. Hughes (2002) 27

Cal.4th 287, 327.)

       “The ‘ultimate standard set forth in the Fourth Amendment is reasonableness’

[citation], and, after Katz v. United States (1967) 389 U.S. 347 . . . , we ask two threshold

questions. First, did the defendant exhibit a subjective expectation of privacy? Second,

is such an expectation objectively reasonable, that is, is the expectation [one that] society

is willing to recognize as reasonable?” (Camacho, supra, 23 Cal.4th at pp. 830-831.)

       B. The Driveway Is Not Within the Home’s Curtilage

       Defendant contends, in a conclusory fashion, that defendant’s driveway was

within the home’s curtilage, and thus, protected by the Fourth Amendment from searches.

We disagree.

       Curtilage is the area “so intimately tied to the home itself that it should be placed

under the home’s ‘umbrella’ of Fourth Amendment protection.” (United States v. Dunn

(1987) 480 U.S. 294, 301 (Dunn).) In identifying the extent of the curtilage, four factors

are considered: “the proximity of the area claimed to be curtilage to the home, whether

the area is included within an enclosure surrounding the home, the nature of the uses to

which the area is put, and the steps taken by the resident to protect the area from

observation by people passing by.” (Ibid.)



                                              7
       In this case, as to the first factor, the proximity of the driveway to the home was

one car length, and abutted both the garage and the sidewalk. Although the driveway is

relatively close to the home, it is the same distance to the sidewalk – a public space. As

to the second factor, “whether the area is included within an enclosure surrounding the

home” (Dunn, supra, 480 U.S. at p. 301), we note that the driveway was not included

within an enclosure. There was no fence or anything surrounding the home. The third

factor, “the nature of the uses to which the area is put,” (Ibid.), weighs against the

driveway being considered curtilage. The driveway was put to its ordinary use. The

driveway is the path up to the home, the path which Investigator Parker, and members of

the public, walked to gain access to the home. These things are done in the public eye, in

full view of neighbors and passersby. Finally, the fourth factor to be considered, “the

steps taken by the resident to protect the area from observation by people passing by”

(Ibid.), also weighs against a finding that the driveway was curtilage. Defendant took no

steps whatsoever to protect this area from the observation of people passing by. There

was not a “No Trespassing” sign, and there was no fencing. Moreover, there were large

windows set into the garage door, exposing the activity inside the garage to those

standing on the driveway.

       The court of appeal decision in People v. Lieng (2010) 190 Cal.App.4th 1213, is

instructive. There, the court found that entrance onto a long driveway did not intrude

upon the curtilage of the defendant’s home. (Id. at p. 1227.) In Lieng, an officer

approached the property in question via a private driveway at 4:30 a.m. (Id. at pp. 1218-

1220.) There was no gate obstructing access to the driveway, although there may have

                                              8
been a “Private Road No Trespassing Keep Out” sign posted near the entrance of the

driveway, which the officer did not see. (Ibid.) It took ten to fifteen minutes for the

officer to walk down the driveway to the Lieng residence, but at no time did he leave the

driveway and walk around the property. (Ibid.) Additionally, a wire fence at least

partially enclosed the Lieng property, and there was an open gate at one part of the

driveway. (Ibid.) The officer was using night vision goggles and observed smells and

sounds associated with a marijuana growing operation. (Ibid.)

       Even though the Liengs’ driveway went deep into private property, had signage

warding off trespassers, and at places was fenced, the court held that the driveway was

outside the curtilage of the residence. (Lieng, supra, 190 Cal.App.4th at pp. 1223-1227.)

The court noted that it was important that the officer never left the driveway, any gate the

driveway may have had was open, and the defendant had a low expectation of privacy in

the driveway because it was accessible to the general public. (Ibid.)

       Compared to Lieng, supra, 190 Cal.App.4th 1213, defendant’s driveway enjoyed

less privacy – there were no signs posted warning of privacy and there were no gates to

enclose the driveway. The short driveway was open and adjacent to a public sidewalk

and street. The investigator, while on the driveway, noticed the smell of marijuana and

heard the sound of the air conditioner – something any person who walked up the

driveway could have observed.

       In sum, the driveway was not part of the curtilage, and so was not protected by the

Fourth Amendment. (See United States v. McIver (9th Cir. 1999) 186 F.3d 1119, 1123



                                             9
[driveway in front of the garage of a residence is outside the home’s curtilage], cited in

People v. Zichwic (2001) 94 Cal.App.4th 944, 955-956.)

       C. There Was No Objectively Reasonable Expectation of Privacy in the Driveway

       Assuming arguendo that the driveway was curtilage, defendant’s constitutional

rights were not violated because there was no objectively reasonable expectation of

privacy in the driveway.

       The presence of an officer within the curtilage of a residence does not

automatically amount to an unconstitutional invasion of privacy. It must be determined

under the facts of each case just how private the particular observation point actually is.

Police with legitimate business may enter areas of the curtilage that are impliedly open,

such as access routes to the house. In doing so, they are free to keep their eyes open. An

officer is permitted the same license to intrude as a reasonably respectful citizen. A

substantial and unreasonable departure from such an area, or a particularly intrusive

method of viewing, however, will exceed the scope of the implied invitation and intrude

upon a constitutionally protected expectation of privacy. What is reasonable cannot be

determined by a fixed formula. Rather, it must be based on the facts and circumstances

of each case. (People v. Thompson (1990) 221 Cal.App.3d 923, 943.)

       The Fourth Amendment protection of the home never has been extended to require

law enforcement officers to shield their eyes when passing by a home on a public street.

Nor does the mere fact that an individual has taken measures to restrict some views of his

activities preclude an officer’s observations from a public vantage point where he has a

right to be and which renders the activities clearly visible. What a person knowingly

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exposes to the public, even in his own home, is not a subject of Fourth Amendment

protection. (Camacho, supra, 23 Cal.4th at pp. 829-831.)

       In this case, defendant’s driveway was exposed to the public. It abutted to the

public sidewalk and was the path up to the home. There was no fence around the

driveway, there were no walls, and there were no signs. The difference, according to the

investigator, between being able to hear sounds of air conditioning and not, was simply

one step off the public sidewalk. Defendant also knowingly exposed the occurrences

within the garage to the public by virtue of the windows in the garage door. From these

facts, it cannot be said that defendant had any subjective expectation of privacy in the

sights, sounds, and smells observable from his driveway. (California v. Ciraolo (1986)

476 U.S. 207, 215 [“it is unreasonable for respondent to expect that his marijuana plants

were constitutionally protected from being observed with the naked eye from an altitude

of 1,000 feet”].)

       Moreover, even if defendant did have a subjective expectation of privacy, it is not

one which society is prepared to recognize as reasonable. Defendant’s driveway, like

many other suburban driveways, was easily visible and accessible to the public. Any

guest – invited or not – would have smelled marijuana or heard the air conditioning fans.

A police officer cannot be said to have been “standing upon trespassed property” where

any other member of the public would have been impliedly invited or allowed to enter.

(Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 641.)

       Both parties have cited extensively to a recent United States Supreme Court case,

Florida v. Jardines (2013) __ U.S. __, 133 S.Ct. 1409 (Jardines). Jardines, however, is

                                             11
not relevant to this case. In that case, the Supreme Court considered “whether using a

drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a

‘search’ within the meaning of the Fourth Amendment.” (Id. at p. 1413.) In Jardines,

two detectives, one of whom was a trained canine handler with a drug-sniffing dog,

approached the defendant’s home. As the dog approached the defendant’s front porch,

“he apparently sensed one of the odors he had been trained to detect, and began

energetically exploring the area for the strongest point source of that odor.” (Ibid.) After

the dog actively displayed signs of detecting odors associated with drugs, he sat down at

the base of the front door, “trained behavior upon discovering the odor’s strongest point.”

(Ibid.) Based on this, the detective applied for and received a warrant to search the

defendant’s residence. After the warrant was executed, the defendant attempted to flee

and was arrested. The detectives found marijuana plants. The defendant was charged

with trafficking in cannabis. (Ibid.)

       The Jardines court reaffirmed a previous United States Supreme Court holding

that “there is no doubt that the officers entered [the home’s curtilage]: The front porch is

the classic exemplar of an area adjacent to the home and ‘to which the activity of home

life extends.’” (Jardines, supra, __ U.S. __, 133 S.Ct. at p. 1415, quoting Oliver v.

United States (1984) 466 U.S. 170, 182.) Our case is distinguishable. Here, the officer

never went to the front porch of defendant’s home. The officer smelled the marijuana

and heard the air conditioning unit as he stepped onto the driveway.

       Thereafter, in Jardines, the court analyzed whether the detectives violated the

defendant’s fourth amendment rights by searching on his front porch. The court

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acknowledged that the courts “have accordingly recognized that ‘the knocker on the front

door is treated as an invitation or license to attempt an entry, justifying ingress to the

home by solicitors, hawkers and peddlers of all kinds.’ [Citation.] This implicit license

typically permits the visitor to approach the home by the front path, knock promptly, wait

briefly to be received, and then (absent invitation to linger longer) leave. Complying

with the terms of that traditional invitation does not require fine-grained legal knowledge;

it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.

[Footnote omitted.] Thus, a police officer not armed with a warrant may approach a

home and knock, precisely because that is ‘no more than any private citizen might do.’

[Citation.]” (Jardines, supra, __ U.S. __, 133 S.Ct. at pp. 1415-1416.) However, the

court noted that by “introducing a trained police dog to explore the area around the home

in hopes of discovering incriminating evidence is something else. There is no customary

invitation to do that.” (Id. at p. 1416.) The court concluded: “The government’s use of

trained police dogs to investigate the home and its immediate surroundings is a ‘search’

within the meaning of the Fourth Amendment.” (Id. at pp. 1417-1418.)

       Again, the facts in this case are distinguishable. Here, there was no drug-sniffing

dog; Investigator Parker entered the driveway as a licensee and his use of ordinary senses

did not exceed the scope of that license. Therefore, we find Jardines, supra, __ U.S. __,

133 S.Ct. at pp. 1415-1416, to be inapplicable to the case at hand.

       In summary, we agree with defendant’s appellate counsel that this case “was an

easy call that might have been an example from a first year criminal procedure class.”

However, “[w]ith all due respect to [counsel],” we find, in this “easy” analysis, that the

                                              13
trial court properly denied defendant’s motion to suppress. Here, defendant’s driveway

was exposed to the public. He had no reasonable expectation in the sounds and smells

emanating from his home and detectable by human senses from his driveway. Therefore,

we find Investigator Parker’s actions comported with the requirements of the Fourth

Amendment.

                                          IV

                                    DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                             RICHLI
                                                                                         J.

We concur:


HOLLENHORST
          Acting P. J.


KING
                         J.




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