Filed 11/19/13 P. v. Pickett CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,

v.

RICKY ANDR E PICKETT,
Defendant and Appellant. B241373
(Los Angeles County Super. Ct. No. BA389843)

APPEAL from an order and a judgment of the Superior Court of Los Angeles County, Gail Ruderman Feuer, Judge. Affirmed. Donna L. Jones, unde r appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne and Seth P. McCutcheon, Deputy Attorn eys General, for Plaintiff and Respondent.2

Appellant Ricky Andre Pickett appeals the judgment resulting from his conviction for carrying a concealed dirk or dagger in violation of former Penal Code section 12020, subdivision (a)(4). He contends the trial court erred in finding he did not have standing to challenge the warrantless search of a garage which ultimately led to the discovery of
his concealed knife. He also contends section 12020 violates the Second Amendment to
the U nited S tates Constitut ion. We affirm the order denying the suppression motion and
the judgment of conviction.

FACTS 1

On October 20, 2011, Los Angeles Police Officer Richard Fox, his partner Officer David Acee, and other officers conducted a trespass investigation at a prope rty on Flower Street. The property was surrounded by a fence and had either a “ No Trespassing ” or

“ Closed to the Public ” sign on it. The residence on the property was vacant, with boarded up windows. The officers did not have a warrant.
The officers we nt to the garages at the rear of the property. Through an open door in one of the garages at the rear of the property, Officer Fox saw four individuals sitting next to objects which appeared to be cocaine pipes. All four of these individuals were
detaine d. One of these individuals was Andre Boatwright, who acted as a quasi

- caretaker of the property. Appellant and La

- Toya Augustine were found in the adjacent connected garage, and were detained. A pat

- down search of appellant revealed a knife in an open and locked position in his pocket.

1 The facts are taken from the hearing on appellant ’ s motion to suppress.3 DISCUSSION 1. Motion to suppress evidence

Appellant contends he was an invited guest on the searched property and so the trial court erred in ruling he lacked standing to challenge the warrantless search of t he garage. He further contends his motion should have been granted on the merits, as there was no legitimate exception to the warrant requirement. We see no error in the trial court’s ruling concerning standing. Because appellant lack ed standing, we do not address whether a warrant was required

.

a. Standard of review

“In ruling on a motion to suppress, the trial court judges the credibility of the witnesses, resolves any conflicts in the testimony, weighs the evidence, and draws factual inferences.” ( People v. Williams (2006) 145 Cal.App.4th 756, 761.) “[O] n appeal from the denial of a suppression motion, we review the evidence in a light favorable to the trial

court ’ s ruling, adopt those express and implied findings of fact that are supported by

su bstantial evidence, and independently determine whether those findings support the

court ’ s legal conclusion . . . .” ( People v. Hoeninghaus (2004) 120 Cal.App.4th 1180,
1197

- 1198.)

b. Standing requires a reasonable expectation of privacy in the place s earched

“[I] n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has ‘ a source outside of the F ourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. ’” ( Minnesota v. Carter (1998) 525 U.S. 83, 88 quoting Rakas v. Illinois (1978) 439 U.S. 128, 134 .)4

“There is no set formula for determining whether a person has a reasonable expectation of privacy in the place searched, but the totality of the circumstances are considered.” ( In re Rudy F. (2004) 117 Cal.App.4th 1124, 1132, citation omitted.) 2 Generally, how ever, a person does not have a reasonable or legitimate expectation of privacy in a place if he has no legal right to be in that place. “[T] he United States Supreme Court [has] held that ‘ a “ legitimate ” expectation of privacy by definition means
more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as “ legitimate. ” ’ [Citation .] The same principle applies to auto thieves [citations]; and trespassers. [Citation.]” ( People v. Satz (1998) 61 Cal.App.4th 322, 325

- 326.)

“ A defendant has the burden at trial of establishing a legitimate expectation of privacy in the place searched o r the thing seized. [Citations.]” ( People v. Jenkins (2000) 22 Cal.4th 900, 972.)

c. The court did not err in finding appellant lacked standing.

The trial court found appellant was not an invited guest on the property. We defer to the court’s finding , which is supported by substantial evidence. It was undisputed appellant was not the owner of the property, nor did he pay rent to Parvish Bananan, the owner of the property. Officers Fox and Acee testified that, according to Bananan, no one had been gi ven permission to be on the property, with the

2 Factors indicating an expectation of privacy include “ whether a defendant asserted a property or possessory interest in the area s earched or the property seized [citation], whether a defendant has a right to exclude others from access to the searched premises [citation], whether a defendant is legitimately on the premises [citation], whether a defendant has entered into an arrangemen t indicating ‘ joint control and supervision of the place searched ’ [citation], whether a defendant had a subjective expectation that the item seized or the place searched would remain free from governmental intrusion, and whether a defendant took normal pr ecautions to maintain his or her privacy [citation].” ( People v. Madrid (1992) 7 Cal.App.4th 1888, 1896.)5

possible exception of Boatwright, who might have been authorized to “watch over” the property. Appellant testified he did have permission to be on the property. He testified he heard Bananan give Boatwright and Augustine permission to be on the property, and he in turn received permission from Boatwright and Augustine to be on the property. The trial court found appellant’s testimony not credible. It was the trial court’s job to assess credibility and re solve t he conflicts in the
evidence. The trial court found appellant’s testimony not credible. We defer to the court’s finding. Appellant is a convicted felon and there were some inconsistencies in his testimony. The condition of the property itself ca st doubt on appellant’s claim that the owner invited people to enter the property. Absent appellant’s testimony, there was no evidence he was legally on the property. Since appellant was not an invited guest on the property, the trial court correctly
ruled appellant had no standing to challenge the search of the property. Appellant relies on three federal cases involving searches of tents to argue he has standing even if he was in the garage illegally. ( U.S. v. Sandoval (9th Cir. 2000) 200 F.3d 659, 661; U.S. v. Gooch (9 th Cir. 1993) 6 F.3d 673; La Duke v. Nelson (9 th Cir. 1985) 762 F.2d 1318.) This reliance is misplaced. In Gooch and La Duke , there is nothing to indicate the tents were illegally placed. In Sandoval it was uncertain whether
the defendan t needed permission to camp on public lands. In any event, “camping on public land, even without permission, is far different from squatting in a private residence. A private residence is easily identifiable and clearly off

- limits, whereas public
land is often unmarked and may appear open to camping.” ( U.S. v. Sandoval
, supra , 200 F.3d p. 661; see Zimmerman v. Bishop Estate (9th Cir.1994) 25 F.3d 784, 787

- 7 88 [ squatter in residential home did not have objectively reasonable expectation of privacy ],
super seded by statute on other grounds as stated in Margolis v. Ryan (9 th Cir. 1998) 140 F.3d 850, 854

- 855.) Appellant’s reliance on People v. Ro m an (1991) 227 Cal.App.3d 674 is also misplaced. That case simply holds that absent abandonment of or eviction fro m a rented6

garage, the tenants’ failure to pay the full amount of rent for the rental period did not give the landlord authority to allow police to search the garage. ( Id . at p. 677.) Appellant did not enter the property with the owner’s permission initia lly and did not pay any rent, so
Ro m an does not assist him. Since appellant was not legitimately in the garage, he had no reasonable expectation of privacy, and no standing to challenge the police entry into the garage. Appellant does have standing to cha llenge the pat

- down search of his person, but he does not make any independent argument that the pat

- down search was unreasonable.

2. Constitutionality of former section 12020

Appellant was convicted under former section 12020, subdivision (a)(4), whic h
bar red a person from carrying “concealed upon his or her person any dirk or dagger.” Appellant contends his conviction must be reversed because this statute wa s unconstitutional on its face under the Second Amendment to the United States
Constitution. Specifically, he contends interpreting former section 12020 to prohibit possession of a concealed switchblade knife, pocket knife, steak knife or butter knife in one’s home makes the statute constitutionally overbroad. 3 Respondent contends appellant has forfeited this claim by failing to raise it in the trial court. Appellant contends if any forfeiture resulted from his counsel’s inaction, he
received ineffective assistance of counsel.

3 On January 1, 2012, section 12020 was repealed and replaced with section 21310. Respondent contends appellant’s claim is not moot because section 21310 is very similar to former 12020. Although technically correct (see Northeastern Fla. Chapter v. City of Jacksonville (1993) 508 U.S. 656, 662, fn. 3), respondent misses a more fundamental reason that the claim is not moot: repeal of the law did not vacate appellant’s felony conviction and five year jail sentence.7 a. Appellant’s claim is forfeited

Appellant forfeited this argu ment by failing to raise it below. A criminal defendant who fails to assert the violation of a right below forfeits his or her right to raise that claim on appeal. ( People v. Yarbrough (2008) 169 Cal.App.4th 303, 310.) Appellant offers no reason for his failure to raise this issue below apart from ineffective assistance of counsel. The relevant United States Supreme Court decisions regarding the right to bear arms were both decided prior to the charges being filed against appellant. ( District of Columb ia v. Heller (2008) 554 U.S. 570 [128 S.Ct. 2783, 171 L.Ed.2d 637] ( Heller ) and McDonald v. City of Chicago, Ill . (2010) 561 U.S. __ [130 S.Ct. 3020, 177 L.Ed.2d 894].)

b. Appellant did not receive ineffective assistance of counsel

In order to establis h a claim of ineffective assistance of counsel, appellant must show his counsel’s performance fell below an objective standard of reasonableness, and that, but for counsel’s error, a different result would have been reasonably probable. ( Strickland v. Was hington (1984) 466 U.S. 668, 687

- 688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216

- 218.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ( Strickland v. Washington
, supra , 466 U.S. at

p. 694.) “When a cla im of ineffective assistance is made on direct appeal, and the record does not show the reason for the counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” ( People

v. Anderson (2001 ) 25 Cal.4th 543, 569.) Here, there is nothing to show appellant’s counsel was asked for an explanation. Appellant contends there could be no satisfactory reason for his counsel’s failure to raise the Second Amendment claim. As we discuss below, there is no merit to appellant’s claim and thus no reasonable probability appellant would have received a more favorable8

outcome if his counsel had raised this issue below. Thus, appellant’s claim of ineffective
assistance fails.

c. Former section 12020 wa s not unconstitutional on its face.

Statutes are presumed to be constitutional. ( United States v. Morrison (2000) 529 U.S. 598, 608.) A facial challenge to the constitutional validity of a statute considers only the text of the statute itself, not its applic ation to the particular circumstances of an individual. ( Sturgeon v. Bratton (2009) 174 Cal.App.4th 1407, 1418.) To prevail on a facial challenge to the constitutionality of a statute, a litigant must show that no set of
circumstances exists under which the statute would be valid. ( United States v. Benevento (D. Nev.2009) 633 F.Supp.2d 1170, 1193.) When evaluating the constitutionality of a statute, the level of scrutiny applied depends on the nature of the right affected by the statute and the manner in which the right is impacted. ( District of Columbia v. Heller , supra, 554 U.S. at p. 628.) Where, as here, the statute regulates but does not completely ban the possession of a knife, it is analyzed under the intermediate scrutiny standard. ( People v. M itchell (2012) 209 Cal.App.4 th 1364, 1374

- 1375 [applying intermediate scrutiny standard to claim that former section 12020 violates the Second Amendment].) “Under the intermediate scrutiny test, the statute must serve an important government al interest an d there should be a reasonable fit between the regulation and the governmental objective [Citation.] The regulation need not be the least restrictive means of serving the governmental interest, but it should be narrowly tailored to serve the interest
, . . . and should leave open ample alternative means of exercising the protected right.” ( Ibid .) The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” ( District of Columbia v. Heller
, supra , 554 U.S. at p. 577.) The Second Amendment guarantees an individual’s right to bear arms, and specifically to possess and9

carry weapons in case of confrontation. ( Id . at p. 595; People v. Flores (2008) 169 Cal.App.4th 568, 573.) The Second Amendment is violated by a statute which absolutely prohibits holding and using handguns for self

- defense in the home and also prohibits rendering any lawful firearm in the home operable for the purpose of imm ediate self

- defense. ( District of Columbia v. Heller
, supra , 554 U.S. at p. 635; People v. Flores
, supra , 169 Cal.App.4th at p. 573.) These bans amount to a prohibition of an entire class of “arms.” ( District of Columbia v. Heller
, supra , 554 U.S. at pp . 628 & fn. 27, 634; People v. Flores
, supra , 169 Cal.App.4th at pp. 573

- 574.) However, there are limits to the right to keep and carry arms. The majority of the 19th

- century courts held prohibitions on carrying concealed weapons lawful under the Second Amendment. ( District of Columbia

v. Heller
, supra , 554 U.S. at pp. 626

- 627.)
Based on Heller ’s express approval of statutory proscriptions against carrying concealed weapons, appellate courts have found statutes restricting the carrying of
concealed firea rms do not violate the Second Amendment. ( People v. Ellison (2011) 196 Cal.App.4th 1342, 1348

- 1351; People v. Flores
, supra , 169 Cal.App.4th at pp. 574

- 577; People v. Yarborough
, supra , 169 Cal.App.4th at pp. 311

- 314.) The Sixth District Court of Appeal has hel d former section 12020 did not violate the Second Amendment. ( People v. Mitchell, supra
, 209 Cal.App.4th at p. 1375.) We reach the same conclusion. Unlike the absolute prohibition of handguns found unconstitutional in Heller
, former section 12020 d id not absolutely ban dirks or daggers. Former subdivision (a)(7)
allow ed dirks or daggers to be openly carried on the waist in a sheath, and former subdivision (a)(4) allow ed the concealed carrying of non

- locking folding knives, a folding knife that wa s not a switchblade, or a pocketknife so long as the blade of the knife

wa s not exposed and locked into an open position. Thus, former section 12020 provide d

a reasonable means for carrying a knife for self

- defense.
Heller was also concerned with a prohi bition of arms in the home. But, f ormer section 12020 d id not ban unc oncealed knives in any location and d id not expressly ban concealed knives in the home. ( People v

. Mitchell
, supra , 209 Cal.App.4th at p. 137610

[former section 12020 “ [ d id] not contain a ny express restriction on concealment of weapons on the person at home, and to the extent it [was] capable of being applied improperly in the home context [], any overbreadth [could have been] cured on a case

- by

case basis.”].) In this case, former sectio n 12020 was not interpreted to bar concealed weapons in a home

. Former section 12020, subdivision (a)(4), did not violate the Second Amendment to the United States Constitution. Appellant’s argument s to the contrary are rejected.

DISPOSITION
The order de nying the suppression motion and the judgment are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KUMAR, J. *

I concur:

KRIEGLER, J.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.1

MOSK, J., Concurring

I concur. I agree with the court in Woode n v. United States (D.C. Cir. 2010) 6 A.3d 833,
which said as follows: “ All this said, the discourse in [ District of Columbia v. ] Heller [(2008) 554 U.S. 570 (Heller)] is focused exclusively on ‘arms’ or ‘weapons,’ meaning
firearms when read in context. Indeed, Heller acknowledged the handgun as ‘the quintessential self

- defense weapon.’ Furthermore, in citing the Oregon case [ State v.
Kessler (1980) 614 P.2d 94], the Supreme Court only indirectly recognized the possible Second Amendment protection for kn ives in common use at the time; the Court did not
elevate to Heller’s text, and thus give express endorsement to, the list of colonial arms mentioned by the Oregon court and the secondary sources it cited. [¶] Perhaps a detailed
Heller

- type analysis woul d result in a conclusion that some kinds of knives today

-- perhaps ordinary pocket knives or key chain knives, if not switchblades

-- are analogous to arms ‘typically possessed by law

- abiding citizens for lawful purposes’ in colonial days, even though ‘no t in existence at the time of the founding.’ If so, such knives may qualify for Second Amendment protection. But if Heller ‘error’ there be, we cannot find it ‘plain’

– ‘clear’ or ‘obvious’

-- that the Heller Court would extend its ruling to knives
carrie d exclusively for use as a dangerous weapon in self

- defense. Absent the kind of historical analysis the Court applied to guns, Heller does not give us the assurance necessary to find plain error in the CDW instructions as applied to knives. ” ( Id. at
pp. 839

- 840, fns. omitted.)

MOSK, Acting P. J.