south pasadena couple faces criminal charges for backyard remodeling

7/31/2019 South Pasadena couple faces criminal charges for backyard remodeling

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SUPERIOR COURT OF CALIFORNIACOLINTY OF LOS ANGELES, NORTHEAST DISTRICT

PEOPLE OF THE STATE OF CALIFORNIA,Plaintiff,

M.C. No.Citation No

V l't AMENDEDMISDEMEANOR COMPLAINTMARK L. NANSEN (DOB:02114150) ANDROBERTA NANSEN (DOB : 09/0 6l s 5),Defendant

The undersigned is informed and believes that:COLINT 1

On or about July I ,2OlI, through and including the present, in the above named judicialdistrict, in violation of South Pasadena Municipal Code Section36.640.040(a), a misdemeanor, wascommitted by Mar:k L. Nansen and Roberta Nansen who did unlawfully maintain unpermittedconstruction of retaining walls at the property known as 2145 Hanscom Drive and the vacant lotadjacent to 2145 Hanscom Drive, parcel number 5308-023-008, South Pasadena, California.

COLINT 2On or about July 1, 20II, through and including the present, in the above named judicialdistrict, in violation of South Pasadena Municipal Code Section 103.1, a misdemeanor, wascommitted by Mark L. Nansen and Roberta Nansen who did unlawfully maintain unpermittedgrading at the property known as 2145 Hanscom Drive and the vacant lot adjacentfo 2145Hanscom Drive, parcel number 5308-023-008, South Pasadena, California.

COUNT 3On or about July 1, 2011, through and including the present, n the above named judicialdistrict, in violation of South Pasadena Municipal Code Section 36.640.040(a), a misdemeanor,was committed by Mark L. Nansen and Roberta Nansen who did unlawfully maintainunpermitted construction of a swimming pool at the property known as 2145 Hanscom Drive andthe vacant lot adjacentto 2145 Hanscom Drive, parcel number 5308-023-008, South Pasadena,California.

COMPLAINT1


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COUNT 4On or about July l, 20II, through and including the present, in the above named judicialdistrict, in violation of South Pasadena Municipal Code Section9.2.l, as adopted by Los Angeles

County 80-12, a misdemeanor, was committed by Mark L. Nansen and Roberta Nansen who didunlawfully maintain unpermitted electrical at the property known as 2145 Hanscom Drive andthe vacant lot adjacent to 2145 Hanscom Drive, parcel number 5308-023-008, South Pasadena,California.++J++

coLrNT 5On or about July 1, 2}ll, through and including the present, in the above named judicialdistrict, in violation of South Pasadena Municipal Code Section 9.3, as adopted by Los Angeles

County Plumbing Code Section 101.4.1, a misdemeanor, was committed by Mark L. Nansen andRoberta Nansen who did unlawfully maintain unpermitted plumbing at the property known as2145 Hanscom Drive and the vacant lot adjacent to 2145 Hanscom Drive, parcel number 5308-023-008, South Pasadena, Califomia.COUNT 6

On or about July I ,2011, through and including the present, in the above named judicialdistrict, in violation of South Pasadena Municipal Code Section36.640.040(a), a misdemeanor,was committed by Mark L. Nansen and Roberta Nansen who did unlawfully maintainunpermitted construction of a canopy at the property known as 2145 Hanscom Drive and thevacant lot adjacentto 2145 Hanscom Drive, parcel number 5308-023-008, South Pasadena,California.COLINT 7

On or about July 1, 201I, through and including the present, in the above named judicialdistrict, in violation of South Pasadena Municipal Code Section 36.640.040(a), a misdemeanor,was committed by Mark L. Nansen and Roberta Nansen who did unlawfully maintainunpermitted construction of a covered patio at the property known as 2145 Hanscom Drive andthe vacant lot adjacentto 2145 Hanscom Drive, parcel number 5308-023-008, South Pasadena,California.

COUNT 8On or about July 1, 20II, through and including the present, in the above named judicialdistrict, in violation of South Pasadena Municipal Code Section 103.3, a misdemeanor, wascommitted by Mark L. Nansen who did unlawfully violate the stop work order between March23,2011 and July l,2}ll at the property known as 2145 Hanscom Drive and the vacant lotadjacent to 2145 Hanscom Drive, parcel number 5308-023-008, South Pasadena, California.

COMPLAINT2


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NOTICE TO DEFENDANT AND DEFENDANT'S ATTORNEYPursuant to Penal Code Sections 1054.5.(b), the People are hereby informally requesting thatdefense counsel provide discovery to the People as required by Penal Code Section 1054.3.I DECLARE UNDER PENALTY OF PERJURY THAT TFIE FOREGOING IS TRUE ANDCORRECT AND THAT THIS COMPLAINT CONSISTS OF 8 CO[TNT(S).

Executed at South Pasadena, California on

Declarant and ComplainantJamaar Boyd-Weatherby, City Prosecutor

COMPLAINT-J


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The W Is SufficientIn order to determine if the warrant is sufficient, the Court must determine if "the

affidavit avers competent evidence sufficient to lead a reasonably prudent man to believethat there is a basis for the search." People v. Christian,2T Cal. App. 3d 554,559 (1972)The warrant is to be viewed "in a commonsense way rather than technically." People v.Kesey, 250 Cal.App.2d 669, 67 I (1967).

The defendants assert a number of "challenges" to the warrant. However, none ofthe challenges go to whether there is a "reasonable basis for the search." MarlonRamirez' declaration established that he was a code enforcement officer for SouthPasadena andthaf he personally observed the violations of the municipal code. (DefenseExhibit 1, Declaration of Marlon Ramirez ("Dec. M. Ramirez')n l, lines 3-4 andf[6,lines 14-18). Code Enforcement Officer Ramirez observed "a new pool, concrete deckadjacent to the pool and a walkway leading to the pool that were built on a flat areathatthe Property owners' had graded without a permit." (Defense Exhibit 1, Dec. M.Ramirez fl 6, lines 14-18). The work was done without the required permits. (Id.)Enforcement Off,rcer Ramirez also noted that the property owner had built a structure toconceal the "illegal work" from being observed from the public right of way. (Def. Exh.l, Dec. M. Ramirez,fl'/,lines 19-22.)

As demonstrated by the declaration, Code Enforcement Officer Ramirez directlyobserved the violations of the South Pasadena Municipal Code. Based upon hisobservation, the code enforcement officer provided the court with sufficient informationto "lead a reasonably prudent man to believe that there is a basis for the search."Christian,2T Cal. App. 3d at 559. It is unclear what additional information the defenseseeking to determine the existence of a crime. As such, it must be determined that thewarrant is sufficient and the motion should be denied.

aOPPOSITION TO MOTION TO SUPPRESS AND QUASH EVIDENCE


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The Nansens Had Notice of theC 's Desire to Insnect the PronertvOne of the many collateral attacks that the Defense made against the warrant was

that the City failed to request an inspection of the property prior to June 24,2011. TheDefendant's submitted declarations stating"that at no time did anyone from the City ofSouth Pasadena seek my personal consent to inspect my residential property prior to June24,2011." ( Defense's Penal Code 1538.5 Motion, Declaration of Mark Nansen fl 4,Lines ll-12 and Declaration of Roberta Nansen fl 4, Lines 9-10.) While the attack onthe motion is decidedly beyond the "four corners of the waffat", the People mustaddress this claim. It must be emphasizedthatthe statements that were made within thedeclarations are false. Evidence Code section 452(d) allows the Court to take judicialnotice of any record of a court within this state. The People request that the court takejudicial notice of the letter that was attached as an exhibit from the Defense's January 19,2012 "Motion to Dismiss Mark Nansen For Due Process Violations." The defenseincluded a copy of the March 23,2011 "Stop Work Order" frorn the City of SouthPasadena to the Nansens as Exhibit 1. Within the Stop Work Order, the City stated, in allrelevant parts "in order to bring your properties into compliance, the following must becompleted: ... 2. Schedule a preapproval inspection prior to item no 3." (January 19,2012 "Motion to Dismiss Mark Nansen For Due Process Violations, Exhibit 1t.; InShort, the Stop Work Order requested an inspection of the property on March 23, 20II.The Nansens' statements to the contrary was flatly contradicted by the letter that theyincluded within this motion and the motion that was submitted on January 19,2012. Infact, the defense acknowledges that the City requested an inspection. (Defense's Motion,p. 6, lines 13-18.) However, the defense attempts to excuse the fact that the Nansensignored the City's request by stating that "prosecutor Iamaar Boyd-Weatherby in ameeting on May 3, 2011 [said] that the Nansens would never get such permit anyway."Given the defense's recognition that the City requested an inspection, it is strange that the' The March23,2011 letter was included in the Inspection Warrant application. As such, it wasattached as an exhibit to the Defense's Penal Code section 1538.5.-3-

OPPOSITION TO MOTION TO SUPPRESS AND QUASH EVIDENCE


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defense would submit a declaration stating under penalty of perjury that they were neverasked for an inspection and claim that the "homeowners were never given notice so theymay consent or refuse the inspection." Defense's Motion, p. 4, lines 25-26.Nevertheless, the Nansens were provided notice of the City's request for an inspection.

The Defense also asserts that the City made "false or misleading" statements whenMichael Do stated that "the property owners expressly denied the City's request for aninspection. Please refer to the Declaration of Marlon Ramirez." (Defense Exhibit l, p. 3,lines 22-23). In order for the court to determine whether to grant an inspection warrant,the court must review the aff,rdavits submitted by the requesting agency. Civ. Proc. $1822.51 ("the affidavit shall contain either a statement that consent to inspect has beensought and refused or facts or circumstances reasonably justifying the failure to seek suchconsent."); See also, People v. Camarella,54 Cal. 3d 592,600-601(1991) quoting lllinoisv. Gates, 462U.5. at 238."[t]he task of the issuing magistrate is simply to make apractical, commonsense decision whether, given all the circumstances set forth in theaffidavit before him, including the'veracity' and'basis of knowledge'of personssupplying hearsay information, there is a fair probability that contraband or evidence of acrime will be found in a particular place."

Michael Do's statement is a part of an application; not an aff,rdavit. The onlyaffidavit that is included with the application was from Code Enforcement OfficerRamirez. (See, Defense Motion, Exhibit 1.) The statement that the defense is takingissue with is a "non-sworn" statement that was made by an attorney in an attempt tosummarize the facts. As such, it cannot serve as the basis for issuing the warrant. See,Civ. Pro. $ 1822.5 l; People v. Barajas, 145 CaL App. 3d 804, 809 (1983) (Arguments bycounsel does not serve as evidence.) Code Enforcement Officer Ramirez (the actualaffiant) stated that "subsequent to and based upon what I had observed on March 17,2011 wherein the City requested a scheduled inspection of the Property. .. The City gaveProperty owners until April25,2011 to schedule the inspection. To this date, the

-4-OPPOSITION TO MOTION TO SUPPRESS AND QUASH EVIDENCE


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Property owners have not made any attempt whatsoever at allowing the City to inspectthe Property." (Defense Exhibit 1, M. Ramirez Dec. fl 9, lines 27-3.) Ramirez also statedthat "the property owners and their attorney have failed to contact the city prior to theJune 6, 20Il deadline that had been agreed upon during the May 3,2011 conference."(Defense Exhibit l, M. Ramirez Dec. fl 12, lines ll-12.) While it is unclear what thedefense means that these statements do not pass "constitutional muster," the statementsestablish that the Nansens willfully failed to respond to repeated request for inspection.Thus, the inspection warrant was in compliance with the Code of Civil Procedure section1822.5r.

It must also be noted that Mr. Do's statement was accurate. As established by therecord, the Nansens were asked multiple times for an inspection of their property.(Defense Exhibit 1, M. Ramirez Dec. '1f 9, lines 27-3 and fl 12, lines II-12.) They nevergranted or even responded to the repeated request. Their failure to respond to the requestamounted to a refusal to allow the City to inspect the property.

There Were No Fourth Amendment ViolationsThe defense also atternpts to argue that the City violated Nansens' Fourth

Amendment Right against unlawful search and seizures by viewing their property from aneighbor's property. In order for the defense's argument to be true, it would first have tobe established that they have a reasonable expectation of privacy for buildings andstructures that could be seen from a neighbor's property. However, they did not cite anyauthority to support this position. Further, the defense's position would be contrary toestablished principles of law. Evidence obtained following a warrantless search isadmissible if it was "fully disclosed to the eye and hand of an officer who has a right tobewherehe is. ..." Peoplev. Claeys,97 Cal. App.4th 55,58 (2002) quoting Dillonv.Superor Court, T Cal.3d 305, 310 (1972).

Code Enforcement Ramirez was allowed onto one of the defendant's neighbor'sproperty where he was able to see that the Nansens had built "a new pool, concrete deck



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adjacent to the pool and a walkway leading to the pool that were built on a flat areathatthe Property owners' had graded without a permit." (Defense Exhibit l, M. RamirezDec. !f 6, Lines 14-18.) The fact that the Code Enforcement Officer could witness theviolations from the neighbor's property established that the defendant did not have a"reasonable expectation of privacy." Dillion, T Cal.3d at 3 1 1. Further, even if it wasassumed that the City illegally gained entry onto the neighbor's property, the defendantdoes not have areasonable expectation of privacy. Claeys,97 Cal. App. 4tn at 59 (TheCourt rejected the argument that a defendant's Fourth Amendment rights were violatedby observations made by off,rcers that illegally entered onto a neighbor's property.) Evenif it is assumed that the defense illegally entered the neighbor's property, the City did notviolate the Nansens' Fourth Amendment rights by making observations from aneighbor's property.

ConclusionFor the aforementioned reasons, the defense's motion should be denied.

DATED: April 16,2012 Respectfully submitted,fd.

M. BOYD WEATHERBYDeputy City Prosecutor for South Pasadena



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PROOF OF SERVICESTATE OF CALIFORNIA, COUNTY OF ORANGE

I am employed in the County of Orange, State of California. I am over the age of 18 andnot a party to the within action. My business address is 3777 North Harbor Boulevard, Fullerton,California 92835.

On Aoul-!-20-lZ, I served the foregoing document described asopposTfioN-roMorroN To SUP?RESS AND QUASH EVIDENCEPURSUANT TO PENAL CODE 1538.5, on each interested arty, as followsMarvin L. Rudnick, Esq.Law Offices of Marvin L. Rudnick42F. Colorado Blvd., 2nd FloorPasadena, CA 91 105PH: 626-796-7799FAX: [email protected]

,/ (VIA MAIL) I deposited such envelope, with postage thereon fully prepaid, in the mailat La Habr a, C al ifornia.(OVERNITE EXPRESS) I deposited such envelope in the depository at Fullerton,California to ensure next day delivery.

I am readily familiar with the Law Offices of Jones & Mayer practice for collection andprocessing of correspondence for mailing with the United States Postal Service. Under thatractice, it would b deposited with the United States Postal Service on that same day withostage thereon fully prepaid atLa Habra, California, in the ordinary course of business. I amware that on motion of the parties served, service is presumed invalid if postal cancellationdate or postage meter date is more than one day after date of deposit for mailing affidavit._(VIA PERSONAL SERVICE) I caused to be delivered such envelope by hand to theoffices of the addressees.

/ (VIA FACSIMILE) I caused the within documents to be transmitted to telephonicfacsimile to the addressees.I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and conect.Executed on April 16. 2012 , at Fullerton, California.MAzuLYN TALLEFF r'


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Marvin L. Rudnick (Bar No.: 141648)LAW OFFICES MARVIN L. RUDNICK42EasT. Colorado Blvd., Second FloorPasadena, Califomia 9 1 1 05Telephone: (626) 796-77 99Facsimile: (626) 7 9 6-2029Attor-ney for MARK NANSEN A,iD ROBERTA NANSEN

SUPERIOR COTIRT OF THE STATE OF CALIFORNIAFOR THE COTINTY OF LOS ANGELES

NORTI{EAST JUDICIAL DISTzuCTTHE PEOPLE OF THE STATE OFCALIFORNIA, CASE NO. lWA11810

Plaintiil" REPLY BRIEF TO CITY'SOPPOSITION TO DDFENDANTS' PC$ 1538.5 MOTION; REQUEST FORCONTINUANCE; DECLARATION OFMARVIN L. RUDNICKMARK NANSEN; ROBBRTANANSEN (PC S 1538.5, 1539 &.1s40)

Defendants Date: J|;fay 15, 2012Time: 8:30 AMDept. 4HON. Jared Moses

REPLY BRIEIF'AI,SE STATEIVIENTS MADE BY CITY PECTIOR TO SECIIRE WARRANT MUST

VS

))))))))))))))))

SUPPRESS WARRANT OR OTHERWISE CONVENE EVIDENTIARY HEARINGNothing in the City Attorney's Opposition contradicts that City Inspector Marlon Ramirez

submitted a false affidavit and a key rnaterial misrepresentation to Judge Uranga when he said theIepiy to Opposition to Motion to Sr,rppress per pc $ 1538.5 (Nansens)1


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Defendants, residents at2145 Hanscom Drive, South Pasadena expressly denied access to theirhome. Moreover, no declaration accompanied City's Opposition to refute Defendants' contention.Clearly, the City's use of a false affidavit claiming that the Defendant Nansens expressly deniedaccess to their properly is so egregious that nothing left in the warrant can justify its enforcement. .

The U.S. Supreme Court has specifically prohibited such searches. Cantcu"a v. lvltmicipnlCourt,387 U.S. 523,549 (1967).("(S)uch warants should nonnally be sor"rght only aftel entry isrefused." ) See generally, Levenson, California Criminal Procedure, $ 5:55, p. 300, f.n. 5. Ratherthan admitting to the perjurious statement, the City's Opposition seeks to cover it up through the useof an obscure reference in an earlier City Stop Work Order r.vhich they say placed the burden on theDefepdants to "schedule a preapproval inspection" as part of their compliance.. This does uot negatethat IVI. Ramirez' lied to get the warrant from Judge Uranga. As such, Defendants contend thatthey made a substantial showing as provided tn Franks v. Delaware, 438 U.S. 154 (1978) thatwould permit the courl to commence an evidentiary hearing to detennine whether there is apreponderance of evidence that the City submitted false or reckless statements to Judge lJrangajustifying their excision from the Wananl. People v. Braclfurd (1997) 15 Cal.4th 1229, 1297 , crfrngFranks.)

Finally, City attempts to distinguish between Inspector Ramirez' (false) declaration and CityAttomey Do's misrepresentation in his Application that "(T)he Property owners have expresslydenied the City's request for an inspection. Please refer to Declaration of Marlon Ramirez") Appl.p. 3:22-23. But where the City specifically referred to a declaration that did not contain the veryiformation needed to obtain the warrant, City prosecutors must be held accountable for thisconstitntional breach - or should have read Mr. Ramirez' declaration before presenting it to Jr,rdgeUranga. Now, for the City to excuse this misconduct under the guise of a buried pluase in a self-serving stop work order, that itself, was issued by Inspector Ramirez, is shameful. if lnspector

Reply to Opposition to Motion to Suppress per pc $ 1538.5 (Nansens)2


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Ramirez kner,v he was relying upon that buried phrase, he should have said it his afhdavit to secnrethe warrant, not argue it now to save tt.

REOUEST FOR CONTINUANCE OF SUPPRESSION HEARINGTOS EMENT M ON TO SS

Finally, in the past two weeks Defendants have received new and exculpatory evidencefi.om their March Ig,2012 Public records Request. On September 13, 2011 Defendants' counselserved a pC $ 1054 reqr.rest for discovery upon City of South Pasadena prosecutors. In that reqllest,on page 2,line 12, emails were sought that were in the care, custody and controi of the City,incltrdingitsprosecutors,underthedefinitionof"Document";and onpage6,linelT, "exculpatoryevidence" was requested of police and zoning officials regarding the City's case against theNansens. From that $ 1054 request, and only after a meet and confer, the City provided two e-mailsone of which was that of the Defendants' counsel'

On March Ig,2012, independently from this case, the Nansens filed a Public Recordsrequest to the South pasadena City Clerk which beginning in micl-Aprrl,2012, after the Nansensfrled their Motion to Suppress, the City Clerk, not the City prosecutor provided dozens more,. Someof the e-mails are exculpatory or otherwise related to the City's inspection of the Nansen residence,evidence that is highly relevant and material to the instant Motion to Suppress. Clearly andcontrary to their obligations under Bracly and PC S 1054, City Attorney held bacl< numerous e-tnails(See Exhib it,,Z,,). As is shown in Exhibit "2", some of these e-mails are entitled "Inspectionswithout permission", "Complaint from Roberta Nansen"; "Nansen" and"2145 Hanscom Drive",and clearly relevant to the Nansen defense. Other e-mails admit illegal searches on the Nansenproperly which is relevant to the instant motion to suppress to show that the probabie cause for theinstant search is evidence of the fruit of the poisonons tree. Combined the withheld e-rnails exhibita cultule of constitutional abuse by the City of South Pasadena building permit department that was

Reply to Opposition to Motion to Suppress per pc $ 1538 5 (Nansens)a-)


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CLARATION MARVIN L. IUDI\II, Marvin L. Rudnick, hereby declare as follows:

1 . I am over the age of 18 and have personai lcnowledge as to all facts set forth helein alrd ifcalled as a witness to testify thereto I could and would competently do so.

2. I am the attorney for Defendant MARK and ROBERTA NANSEN in Case #14HO3330.The Declaration is brought to secure a continuance of 30 days to evaluate new evidence receivedfrom the City of South Pasadena..

3. Except as otherwise stated, this declaration is based on my personal knowledge and ifcalled upon as a witness I could and wor,rld competently testify to the matters contained herein.

4. On September 13, 2011 I served a PC $ 1054 (See a true and cotrect copy of said Request asExhibit "1") request for discovery upon City of South Pasadena prosecutors. In that request, onpage 2,line 12,I requested any emails in possession of the City under the definition of "Doctunent";and on page 6, \ne 17 ,I asked for all "exculpatory evidence" in possession by the prosecutor or'zoningofficials regarding the case against the Nansens'

5. From that $1054 request, City attomey plovided two e-mails, one of r,vhich was tnine.However, in discovery provided to the Nansens by the City Clerk commencing on April 70,2012,there was included nurnerous e-rnails including true and correct copies received fi-om my Clientswhich are attached as Exhibit "2". Some of these are entitled "Lrspections without Permission",,,Complaint frorn Roberta Nansen; :Nansen" and "2145 Hanscom Drive". Some admit illegalsearches on the Nansen property which is relevant to the instant motion to suppress.

6. Attacirecl as Exhibit "3" are true and correct copies of emails sent to rne by my Client fromthe South pasadena City Clerk who said that lnspector Ramirez is reviewing hundreds of e-mailsrelated to the case. In the e-mail of April Il,2012 at 7 :16 AM, City Clerk states that the CityAttomey, the prosecutor in this case "did revier,v materials iast Tr-resday dicl OI( sorre."

Reply to Opposrtion to Motion to S_uppress pel pc $ 1538.5 (Nansens)5


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I declare under penaity of perjury under the laws of the State of California that the foregoingis true and correct. Executed at Pasadena, califomia on NIay I,2012.

Marvin L. Ruclnicl

south pasadena couple faces criminal charges for backyard remodeling

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