Filed 2/10/17 P. v.

Navarrette CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE, C078048

Plaintiff and Respondent, (Super. Ct. No. 14F02793)

v.

JOSE NAVARRETE et al.,

Defendants and Appellants.

After the trial court denied their motion to suppress, defendants Jose Navarrete
and Brenda Salazar each entered a negotiated plea of no contest to possession of heroin
for sale (Health & Saf. Code, 11351) in exchange for dismissal of the remaining counts
(defendant Navarrete - assault with a firearm with personal use of a firearm, assault by
force likely to cause great bodily injury with personal infliction of great bodily injury,
and unlawful possession of a firearm; defendant Salazar - possession of completed
currency with intent to defraud, and battery; both defendants - possession of
methamphetamine, possession of marijuana for sale, and possession of drug

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paraphernalia). The trial court sentenced defendant Navarrete to the midterm of three
years and defendant Salazar to the low term of two years.
Defendants appeal. They contend the trial court erroneously denied their motion
to suppress. The People concede. We agree and will reverse defendants convictions and
remand for further proceedings. In view of our disposition, we need not consider
defendants second contention that there are clerical errors on the sentencing minute
orders.
FACTS1
About 2:46 a.m. on April 24, 2014, Sacramento Police Officer Balwant Jagur went
to 4300 35th Street in response to a 911 call from Ebony Jones claiming she had been
threatened by a male neighbor who pointed a gun at her and who had used his dog to
attack her when she attempted to retrieve her personal property from the residence. Upon
arrival, the officer saw a woman running to a house next door, 4304 35th Street, and
Jones coming out of 4300 35th Street. Jones was excited and crying. She showed the
officer severe puncture-type wounds on both of her arms, which were consistent with dog
bites. Jones claimed that the male neighbor who lived next door at 4304 35th Street had
threatened her with a gun and had ordered his dog to attack her.
Officer Jagur went to the house at 4304 35th Street and knocked on the door.
Defendant Navarrete answered the door. He was sweating and excited. Defendant
Salazar stood behind defendant Navarrete. The officer asked what was going on.
Defendant Navarrete responded that his dog had gotten loose and attacked his next door
neighbor. The officer asked to see the dog. Defendant Navarrete either invited the
officer inside or waved him inside and then escorted the officer to the backyard.

1 The facts are taken from the transcript of the hearing on defendants motion to suppress
the evidence.

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Defendant Salazar waited in the living room. In the backyard, the officer saw a large, pit
bull, lab mix dog. The dog was tied up but was acting very aggressively.
After seeing the dog, the officer followed defendant Navarrete back into the house.
The officer had both defendants as well as another woman and a child who had been in a
bedroom all sit on the sofa. Defendant Navarrete said the house belonged to him, he
lived in the house with his wife, defendant Salazar, and no one present was on
probation or parole. When the officer asked if he could look around, defendant
Navarrete answered in the negative. Both defendants denied that defendant Salazar was
on probation.
Sacramento Police Officer Alexander Giy then entered the house, obtained
defendants names and birthdates, and left to conduct a records search from his patrol car.
Defendant Navarrete was not on probation or parole. Officer Giy determined that
defendant Salazar was on active probation for a drug violation until 2016. Officer Giy
testified that from a probation record, he learned defendant Salazars name, date of birth,
CI&I number, Social Security number, start date of probation, end date of probation, and
her probation officer. Officer Giy confirmed the same on the phone with our records
channel and logged into the car computers application for the probation system which
accessed the latest and the most accurate probation record which also showed the
charge. Officer Giy denied having access to the rap sheet (CLETS printout) for
defendant Salazar.2

2 Defendant Salazars attorney presented a printout of the rap sheet which reflects the
following: in April 2011, defendant Salazar had been convicted of a felony violation of
Health and Safety Code section 11377, subdivision (a) and a section 11350, subdivision
(a) charge had been dismissed; she received a fine and five years probation with
conditions of probation of a firearm restriction and drug treatment placement; and her
conviction was set aside and dismissed pursuant to Penal Code section 1210.1 in
November 2011.

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 Based on Officer Giys information about defendant Salazars probation status, the
home was searched. In a bedroom, they found drug paraphernalia, heroin,
methamphetamine, clonazepam, marijuana, fake $20 bills, $7,000 in cash, and an empty
holster. Papers and other items indicated that the bedroom belonged to defendants. A
scale and a dish with residue were found in the kitchen. Under an ottoman in the living
room, Officer Giy found a loaded revolver in a zippered pouch. The officers seized all
items and arrested defendants.
It was later learned that defendant Salazar was not on probation at the time of the
search; instead, her Proposition 36 probation had been terminated in November 2011. At
the suppression hearing, a probation department clerical support employee testified that
she had failed to enter the data properly into the CJIS database. She claimed it was the
first and only time she had failed to enter the data properly.
Defendant Navarrete testified at the suppression hearing. He claimed that Officer
Jagur knocked on the door, announced Sacramento Police Department, and walked in
the house. Defendant Navarrete denied inviting the officer inside the house. When the
officer stated that he wanted to see the dog that had gotten loose and bit someone next
door, defendant Navarrete took the officer to the backyard where the dog was tied up 20
to 30 feet from the back door. When defendant Navarrete went back inside the house, the
officer followed him inside without being invited. Defendant Navarrete was detained on
the sofa and refused to consent to search. He also informed the officer that no one in the
house was on probation or parole. Defendant Navarrete objected when the officer used
his flashlight to look around and the officer said, Shut the fuck up and sit right there.
Then Officer Giy entered, also uninvited, and asked everyone for identification.
Defendants told the officers that defendant Salazars Proposition 36 probation had
terminated in 2011. Defendant Navarrete claimed that Officer Jagur searched the
ottoman before Officer Giy entered the house.

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 Defendants moved to suppress all evidence seized as a result of the warrantless
detention, search, and seizure.
The People opposed defendants motion, arguing (1) the detention was justified
because Officer Jagur had reasonable suspicion to believe that defendants were involved
in criminal activity; (2) the search was conducted pursuant to a verified belief that
defendant Salazar was on searchable probation; (3) the officers relied in good faith on the
inaccurate information received about defendant Salazars probation status from a records
check and probation information; (4) probation searches include common areas shared by
nonprobationers; and (5) probable cause supported the arrest of both defendants on
multiple controlled substance violations and assault.
In denying defendants motion, the trial court issued a 13-page written ruling. The
court found: (1) the officer told defendant Navarrete that he had to see the dog and
defendant Navarrete either consented to [Officer] Jagur entering the house to look at the
dog, or acquiesced to Jagurs authority to enter to look at the dog; (2) Officer Jagurs
entry into the house was justified by (a) the victims report defendant Navarrete had
attacked her with his dog and threatened her with a gun, (b) the victim knew where
defendant Navarrete lived with his dog, and (c) when defendant Navarrete answered the
door, he admitted his dog had attacked the victim; (3) Officer Jagur had a public safety
duty to inspect the dog to determine if the dog had to be removed from the home,
quarantined, or otherwise inspected for rabies or other illness; (4) when the officer was
speaking to defendant Navarrete at the door, the officer had probable cause to arrest
defendant Navarrete for violating Penal Code section 245; (5) a warrant was not required
to enter defendant Navarretes home based on the officers public safety duty and exigent
circumstances to ensure the dog was not a danger; and (6) Officer Giys record search
included the probation departments data base which disclosed that defendant Salazar
was on searchable probation but (a) defendant Salazars probation had been terminated
in 2011, (b) the probation office clerical worker had failed to enter the information into

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the computerized records of the probation department, and (c) such failure had never
happened before or after as far as the worker knew.
Based on the foregoing findings, the trial court concluded that both defendants had
a reasonable expectation of privacy in the locations which were searched (both
defendants knew that defendant Salazars probation had been terminated over two years
prior to the search). The court found that Officer Giy exercised due diligence in checking
defendant Salazars probation status from the sources available to him at the time of the
search. Based on the officers reasonable subjective belief, they acted in good faith
reliance upon the information and conducted a search of appropriate locations pursuant to
a valid probation search condition pertaining to defendant Salazar. The court rejected
the defendants argument that the arrests inside their home required arrest warrants. The
court concluded that the exclusionary rule did not apply because the erroneous
information provided to the officers by the probation department employee was simple
negligence and not part of systemic error or reckless disregard of constitutional
requirements.
DISCUSSION
The standard of appellate review of a trial courts ruling on a motion to suppress
is well settled. We view the record in the light most favorable to the trial courts ruling
and defer to its findings of historical fact, whether express or implied, if they are
supported by substantial evidence. We then decide for ourselves what legal principles are
relevant, independently apply them to the historical facts, and determine as a matter of
law whether there has been an unreasonable search and/or seizure. (People v. Knight
(2004) 121 Cal.App.4th 1568, 1572; accord, People v. Lenart (2004) 32 Cal.4th 1107,
1119.)
The Fourth Amendment to the federal Constitution guarantees against
unreasonable searches and seizures by law enforcement and other government officials.
(People v. Parson (2008) 44 Cal.4th 332, 345, fn. omitted.) It is a basic principle of

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Fourth Amendment law that searches and seizures inside a home without a warrant are
presumptively unreasonable. (People v. Thompson (2006) 38 Cal.4th 811, 817,
quoting Payton v. New York (1980) 445 U.S. 573, 586 [63 L.Ed.2d 639].) When police
conduct a search or seizure without a warrant, the prosecution has the burden of showing
the officers actions were justified by an exception to the warrant requirement. (People v.
Simon (2016) 1 Cal.5th 98, 120.)
An exception to the warrant requirement is a search conducted pursuant to a
probation search condition. [A] probationer who has been granted the privilege of
probation on condition that he submit at any time to a warrantless search may have no
reasonable expectation of traditional Fourth Amendment protection. (People v. Mason
(1971) 5 Cal.3d 759, 765, fn. omitted.) Thus, when defendant in order to obtain
probation specifically agreed to permit at any time a warrantless search of his person, car
and house, he voluntarily waived whatever claim of privacy he might otherwise have
had. (People v. Ramos (2004) 34 Cal.4th 494, 506; see also People v. Bravo (1987)
43 Cal.3d 600, 607.) The consent is a complete waiver of that probationers Fourth
Amendment rights, save only his right to object to harassment or searches conducted in
an unreasonable manner. (Bravo, at p. 607.)
The People argued the search was conducted pursuant to a belief that defendant
Salazar was on searchable probation and that the officers relied in good faith on the
inaccurate information received about defendant Salazars probation status from a records
check. The evidence adduced at the hearing reflects that at the scene, Officer Giy
determined that defendant Salazar was on active probation until 2016 for a drug violation
which he confirmed based on other records. Based on Officer Giys information about
defendant Salazars probation status, the home was searched. Defendant Salazar was not,
in fact, on probation at the time of the search; her Proposition 36 probation had been
terminated in November 2011. A probation department employee testified that she had
failed to enter the data properly into the database. The trial court determined that based

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on the officers reasonable subjective belief that the probation departments database
disclosed that defendant Salazar was on searchable probation, they acted in good faith
reliance upon the information and conducted a search pursuant to a valid probation
search condition pertaining to defendant Salazar.
While the evidence supports the trial courts finding that Officer Giy relied on
records which disclosed that defendant Salazar had been on probation, defendants
contend that there was not any evidence whatsoever that defendant Salazars probation
included a search condition. The People concede. We agree.
[W]hether a [juvenile or adult probation or an adult parole] search is reasonable
must be determined based upon the circumstances known to the officer when the search is
conducted. (In re Jaime P. (2006) 40 Cal.4th 128, 132-133; see also People v. Sanders
(2003) 31 Cal.4th 318, 332; People v. Robles (2000) 23 Cal.4th 789, 800.) Unlike the
parole context, where the scope of permissible search is imposed by lawand deemed
known to the searching officer from nothing more than the fact that someone is on
parolea probationers expectation of privacy, and hence the reasonableness of a
warrantless search, may vary depending on the scope of advance consent. And in
determining the scope of consent, we must use an objective test, evaluating the terms of
the operative search clause in objective terms, without regard to either the subjective
understanding the probationer might have [citation] or the searching officers subjective
intent in conducting the search [citation]. (People v. Romeo (2015) 240 Cal.App.4th
931, 950, fn. omitted.) A search condition is not necessarily a condition of Proposition
36 probation. (See Pen. Code, 1210.1, subd. (a).)
The trial courts conclusion that the search of the home was conducted based on
the officers belief that defendant Salazar was on searchable probation was not
supported by any evidence. The People did not prove the officers search was justified
by another exception to the warrant requirement. Thus, the search was unlawful and all
evidence seized should have been suppressed. Based on this determination, we need not

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address whether the entries into the home and the detentions were justified. We will
reverse and remand for further proceedings.
DISPOSITION
The trial courts order denying defendants motion to suppress the evidence is
reversed. The case is remanded with directions to vacate defendant Salazars and
defendant Navarretes convictions for possession of heroin for sale.

/s/
Blease, Acting P. J.

We concur:

/s/
Robie, J.

/s/
Mauro, J.