People v. Varga CA1/5 ( 2020 )

Filed 12/15/20 P. v. Varga CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A157243
v.
ATTILA ALEX VARGA, (Napa County
Super. Ct. No. 18CR001720)
Defendant and Appellant.
Appellant Attila Alex Varga was convicted by jury of possession for sale
of methamphetamine and possession of narcotic paraphernalia. At the
preliminary hearing, he unsuccessfully moved to suppress the evidence, all of
which was confiscated during the search of his bedroom at Capstone Court in
Napa. On appeal, he does not dispute his factual guilt of the charges;
instead, he challenges only the denial of the motion to suppress evidence
(Pen. Code, § 1538.5).1 We affirm.
Undesignated statutory references are to the Penal Code. Appellant
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did not renew his motion pursuant to section 1538.5, subdivision (i), after the
filing of the information, nor did he challenge its denial by way of a motion to
set aside the information pursuant to section 995. Respondent contends
appellant is now precluded from raising the motion on appeal. In the
alternative, appellant raises an ineffective assistance of counsel claim for
failure to preserve the issue. We do not reach these issues, finding instead
that the motion was properly denied.
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FACTUAL AND PROCEDURAL BACKGROUND
On May 18, 2018, Napa Police Officer Thomas Keener conducted a
probation search related to E. Dellagana, whose probation required her to
submit to search of her residence. He consulted both the Napa Police
Department and Napa County law enforcement record systems, which
showed her current address to be Capstone Court.
These record entries were both made in 2016. One was the result of an
encounter with Dellagana at a hospital where her daughter was being treated
as a crime victim. The reporting officer on that occasion asked, “[I]f we need
to get ahold of you where can we find you?” The second was the result of the
service of a search warrant at the Capstone address in December 2016.
Dellagana was a subject of the warrant, was seen leaving the residence, and
possessed keys to the residence.
Keener was also aware that “within recent months [officers] had served
a search warrant at that residence where Miss Dellagana was contacted.”
Keener reviewed Dellagana’s probation order “to see that she was in fact on
searchable probation.” He did not contact anyone at the probation
department or the court to verify her current address.
At the time Dellagana was placed on the relevant probation in early
2018, she gave an address of “Magnolia NSH,” which Keener testified was a
residential treatment program associated with Napa State Hospital that was
not a permanent residence.2 Appellant produced evidence that Dellagana
held a month-to-month lease at the treatment program beginning in
2 Dellagana signed the probation order, and apparently wrote in the
Magnolia address, on January 30, 2018, but it was not signed by the judge
and filed until April 17. It is not clear from the record whether Keener
noticed the Magnolia address when he reviewed the probation order prior to
the search.
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December 2017; she was dismissed from the program a month after the
search in question.3
On the day of the search, officers located Dellagana in a bedroom of the
home on Capstone. Through an open window, they informed her that they
were there to conduct a probation search; she asked if they could come back
later. Appellant opened the front door and told the police Dellagana was in
the bedroom. Dellagana, who was sitting on the bed, informed the officers
that she was unable to walk because of recent medical care. Appellant
helped her into a wheelchair, and they exited the room. It appeared to the
officer that “it was almost impossible” for Dellagana to move without the
wheelchair. The officer did not note whether the room contained a woman’s
belongings: “The room was a mess so I didn’t really pay attention to what
type of belongings were in the room.” Dellagana told the officers that she had
been staying at the residence “off and on.”4
Appellant, not Dellagana, was charged with possession of the
contraband found in the bedroom.
DISCUSSION
As noted, appellant does not dispute his factual guilt of the charges, nor
does he dispute that Dellagana was subject to residential search as a
condition of her probation. He contends only that the trial court erred in
finding that Keener’s belief that Dellagana resided at Capstone was
objectively reasonable. The parties agree that we review that finding for
3 These records were received in evidence but were returned to counsel
at the conclusion of the motion. The record on appeal was not augmented
with them. Their content was not in dispute. We take our description of
them from the discussion of court and counsel.
4Dellagana later told officers she had been staying with appellant for
three weeks.
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substantial evidence. “ ‘[T]he question of whether police officers reasonably
believe an address to be a probationer’s residence is one of fact, and we are
bound by the finding of the trial court, be it express or implied, if substantial
evidence supports it.’ ” (People v. Downey (2011) 198 Cal. App. 4th 652, 658.)
Here, Officer Keener consulted two separate law enforcement
databases that reflected a current address of Capstone Court for Dellagana
as of 2016. The prosecutor demonstrated Dellagana’s connection to the
residence in 2016 was not passing, i.e., in one instance, she gave the address
as a place where she could be located if law enforcement needed to contact
her in regard to her daughter who had been the victim of a crime, and in the
other, she was the subject of a criminal investigation at the property and,
thanks to a set of keys, had complete access to the property.
As against a contention that this information was stale lie the facts
that upon officers going to the residence to conduct the search in May 2018,
Dellagana was present sitting on a bed in a relatively immobilized state
following medical care. She indicated she had been staying there off and on,
and when first informed of the officers’ intention to conduct a probation
search, she did not deny she lived there. Instead, she asked them to come
back later—not the ordinary request of a guest. The recent information that
Dellagana had been present during the service of a search warrant was quite
vague, but in any event, the circumstances surrounding her presence at the
time of the search are compelling.
Appellant relies principally upon the evidence that Dellagana’s
probation order from early 2018 showed the Magnolia address. Although
the court signed and filed that order in April 2018, Dellagana had given the
Magnolia address and signed the document in January 2018. It is not clear
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from the record whether Keener saw this address when he consulted the
order for purposes of verifying her search terms. In reason, we must
impute that knowledge to him. (See People v. Ramirez (1983) 34 Cal. 3d 541,
546–547.)
However, he certainly was not required to accept that address as
accurate or current. Appellant contends Keener should have accepted the
Magnolia address because it was the most recent one. However, the most
recent evidence consisted of the circumstances observed by the officers at the
time of the search. We acknowledge a different result may have followed if
Dellagana had not been present—along with all attendant circumstances—at
the time of the search. It might be suggested that Keener was obligated to
first investigate the currentness of the Magnolia address. Yet, he knew it
was not a permanent residence, and had he contacted the program, he
presumably would have learned that Dellagana had not been staying there
for at least three weeks—the amount of time she later stated she had been
staying on Capstone. In sum, at the time of the search, Keener was faced
with a probationer whose intimate relationship with the residence had
existed and persisted for two years.
Appellant cites no authority for the proposition that the facts as known
by Keener (i.e., a relatively immobile individual staying in a bedroom for an
extended period of time following medical care, who had previously given the
address as her own on more than one occasion and previously been known to
have exercised dominion there) do not establish residence for the purposes of
probation search terms. He also cites no authority that a probationer can
have only one residence for the purposes of probation search terms, namely
the one written on the probation order.
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In Case v. Kitsap County Sheriff’s Dept. (9th Cir. 2001) 249 F.3d 921,
the Ninth Circuit Court of Appeals considered a related question: whether,
for purposes of warrantless entry to arrest, an officer’s belief that the subject
of an arrest warrant resided in the residence in question was reasonable.
There, officers in Washington entered the home of Christopher Russell to
arrest Case on an Oregon warrant. Oregon officers had verified that Case
was living at the address, and Russell confirmed that Case was staying at the
house. Just prior to the entry, officers spoke by phone to Case at the
residence. (Id. at pp. 924–925.) The court concluded: “By all indicia, [Case]
was far more than a mere ‘overnight guest.’ Case presents insufficient
evidence supporting her argument that a reasonable officer would have
investigated her residency further or why further investigation would
preclude a reasonable officer from concluding that she was a co-resident of
the . . . residence.” (Id. at p. 931.)
In reaching this conclusion, the Ninth Circuit relied upon U.S. v. Risse
(8th Cir. 1996) 83 F.3d 212, where officers entered Risse’s home to execute an
arrest warrant for Sandra Rhoads. Within the previous month, Rhoads had
been contacted by officers at the home. She later said she was “ ‘staying’ ”
there and could be contacted there. A reliable informant had confirmed that
Rhoads was living with Risse, and just prior to the arrest, officers verified by
phone that Rhoads was present in the home. To the contrary, officers knew
that Rhoads maintained another address in town that she had given at the
time of an earlier arrest, where the utilities were in her name and where she
received her mail. However, they had not been able to contact her at this
other address before the arrest. (Id. at pp. 214–217.)
The Eighth Circuit Court of Appeals upheld the lower court’s ruling,
finding that the officers’ belief that Rhoads resided with Risse was reasonable
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as a matter of law: “In so holding, we reject Risse’s contention that, because
the officers knew, or should have known, that Rhoads maintained a
permanent residence [elsewhere], they could not have reasonably believed
that Rhoads resided [with Risse]. We have found no authority to support
Risse’s implicit assumption that a person can have only one residence for
Fourth Amendment purposes. Rather, when evaluating Risse’s expectation
of privacy in his home, we are guided by the principle that, so long as Rhoads
possesses common authority over, or some other significant relationship to,
[Risse’s] residence, [citation], that dwelling ‘can certainly be considered [her]
“home” for Fourth Amendment purposes, even if the premises are owned by a
third party and others are living there, and even if [Rhoads] concurrently
maintains a residence elsewhere as well.’ ” (U.S. v. Risse, supra, 83 F.3d at
p. 217.)
To permit a probationer to evade supervision by giving one address at
the time of being placed on probation and living elsewhere seems illogical,
just as illogical as permitting a probationer to simply move about without
fear that the residential search condition will ever be exercised. Nor does
it seem appropriate to require an officer to eliminate all other possible
residences as long as the belief with respect to the residence in question is
reasonable. Indeed, here, had Keener investigated the Magnolia residence as
a possible current residence for Dellagana, the results would only have
confirmed his belief that she was, at that time, residing on Capstone.
In People v. Downey, supra, 198 Cal.App.4th at page 662, the court
upheld the trial court’s conclusion that the officers had an objectively
reasonable belief that the probationer lived in the residence. Appellant
contends that Downey supports his position because, in that case, there was
more substantial evidence to support the officers’ belief. There, the officers
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searched several databases and called various agencies. As a result, they
knew that the probationer had given several different addresses but that the
most recent one, as reflected by utility bills, was the residence in question.
They were also told that, though another individual was currently on the
lease, others were living in the residence as well. (Id. at pp. 655–656.) We
disagree that the factual distinction is meaningful under the standard of
substantial evidence.
Appellant’s reliance on People v. Tidalgo (1981) 123 Cal. App. 3d 301 is
unavailing. There, officers had conflicting information as to whether the
defendant lived at the residence in question. (Id. at pp. 303–306.) Applying
the same standard of review that we employ here, the court simply upheld
the trial court’s finding that the officer’s belief was not reasonable. (Id. at
p. 308.) We conclude that there was substantial evidence to support the trial
court’s finding here that the officer’s belief that Dellagana resided at
Capstone was reasonable.
We conclude the magistrate properly denied the motion to suppress at
the preliminary hearing.
DISPOSITION
The judgment is affirmed.
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_________________________
Reardon, J.*
WE CONCUR:
_________________________
Needham, Acting P. J.
_________________________
Burns, J.
A157243
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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