Case Name: People v.
Nishi , District: 1 DCA , Division: 1 , Case #: A129724
Opinion Date: 7/13/2012
, DAR #: 9687
Case Holding:
A warrantless search of a campsite does not violate the Fourth Amendment when a person is not
legitimately on the premises and is aware
that occupying the premises without consent is illegal. In 2010, appellant sent e-mails to the Department of
Defense complaining that Department of
Fish and Game personnel had unlawfully shot protected mountain lions and
that he was armed and would fire on all
sheriffs and Fish and Game personnel. The
e-mail was forwarded to local agencies who advised their staff to
take precautions. A deputy sheriff
located appellant on a preserve and arrested him. Appellant's campsite was searched and
shotgun shells were located and seized
from a tarp surrounding the tent. The warrantless search did not violate
the Fourth Amendment. Appellant had no
reasonable expectation of privacy because he
was not lawfully or legitimately on the premises. Camping on the
preserve was prohibited without a
permit and appellant did not have one. Because he previously had been cited for illegal
camping and evicted from other campsites
in the preserve, he was conscious of the illegality. Appellant was not
in a position to legitimately consider
the campsite as a place society recognized as
private to him.
Substantial evidence supports a Penal Code section 69 (resisting an executive officer)
conviction when a person e-mails a
threatening message with the intent to deter officials from performing
their duties and it may be inferred
that he intended that the message would be conveyed to the intended targets. Appellant was
convicted of section 69, with the
conduct in question being the e-mail he sent to the Department of
Defense. The appellate court, observing
that appellant had not raised a First Amendment argument, evaluated the conviction under a
substantial evidence test, and found
that it was supported by the evidence. Penal Code section 69 sets forth
two ways the offense can be committed;
the first is by threats to prevent an officer from performing a duty imposed by law, also known
as attempting to deter, and the second
is by resisting an officer by force or violence in the performance of his duty. Here, the case against appellant was
based on the first form of violation of
section 69. The evidence demonstrated that appellant intended to deter officials from patrolling or otherwise
performing duties in the preserve by
threatening to "fire on" them if they appeared. Appellant
essentially acknowledged this when he
told a sheriff's deputy that the e-mail "worked" by keeping officers off the preserve. Section
69 does not require that the threat be
transmitted separately or directly to the intended victim or that
defendant have the present ability to
carry it out, only that it deterred performance of a duty. The inference may be drawn that
appellant intended that the threatening
message would be conveyed from the Department of Defense to the intended
law enforcement targets.
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