Opinion
E072391
10-27-2020
THE PEOPLE, Plaintiff and Respondent, v. SHAWN MICHAEL BOOTH, Defendant and Appellant.
Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1801164) OPINION APPEAL from the Superior Court of Riverside County. Randall Donald White and William S. Lebov, Judges. Affirmed with directions. Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
Judge White is a retired Judge of the Riverside Superior Court and Judge Lebov is a retired Judge of the Yolo Superior Court, both assigned by the Chief Justice under article VI, section 6 of the California Constitution.
The trial court denied defendant's motion to suppress evidence against him. Thereafter, defendant pled guilty to the court to being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1), count 1), being a felon in possession of ammunition (Pen. Code, § 30305, subd. (a), count 2), possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, count 3), carrying a loaded firearm by a felon (Pen. Code, § 25850, subd. (c)(1), count 4), being under the influence of a controlled substance while armed with a firearm (Health & Saf. Code, § 11550, subd. (e), count 5), driving a vehicle while under the influence of a drug (Veh. Code, § 23152, subd. (f), count 6), possession of drug paraphernalia (Health & Saf. Code, § 11364, count 7), and being a prohibited person in possession of a stun gun (Pen. Code, § 22610, subd. (a), count 8). Defendant additionally admitted he had suffered three prior prison terms (Pen. Code, § 667.5, subd. (b)) and a prior strike conviction (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). Pursuant to the indicated sentence, the court sentenced defendant to an aggregate term of seven years of imprisonment, including one consecutive term on one of the prior prison term enhancements.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: (1) the trial court erred in denying his motion to suppress; (2) the abstract of judgment and minute order do not properly reflect that the court stayed imposition of various fines and fees; and (3) the imposition of the consecutive one-year enhancement for having suffered a prior prison term must be vacated. The matter is remanded in part and affirmed in all other respects.
I. FACTUAL AND PROCEDURAL BACKGROUND
Our factual recitation is taken from the testimony presented at the hearing on defendant's motion to suppress.
Defendant filed a motion to suppress all of the evidence obtained as a result of the officer's traffic stop of defendant, and the People filed an opposition. On December 19, 2018, the trial court held a hearing on defendant's motion, at which the arresting officer testified. The officer testified that on September 11, 2018, at approximately 8:43 p.m., he pulled defendant over based on his suspicion that defendant was under the influence. Defendant failed to stop at two stop signs and drove on the wrong side of the road at a fast rate of speed.
When first contacted, the officer noticed that defendant was sweating profusely, unable to sit still, experiencing body tremors, and very talkative. Based on his training and experience, the officer believed defendant "was showing signs and symptoms of being under the influence of a central nervous system stimulant."
The officer asked defendant to exit the vehicle so he could conduct standardized field sobriety tests. The officer first checked defendant's resting pulse, which was "112 beats per minute." The normal pulse range is between "60 to 90 beats per minute"; anything above that is considered an elevated pulse, which is indicative of being under the influence of a central nervous system stimulant.
Next, the officer conducted a horizontal gaze nystagmus test, the results of which helped him determine that defendant was possibly under the influence of a controlled substance. The officer then conducted "the one-leg stand test." Defendant was unable to successfully complete the test. Next, the officer directed defendant to walk, heel-to-toe, in a straight line and turn back the way he came in the same manner. Defendant was unable to successfully complete the test.
The officer directed defendant to stand with his heels together, arms at his side, tilt his head backward, and close his eyes while attempting to bring his finger to the tip of his nose. Defendant was unable to successfully complete the test during any of his six attempts. The officer then conducted the "Romberg test," in which defendant was told to stand with his feet together, hands at his side, head tilted back, and eyes closed while attempting to estimate when 30 seconds had elapsed. Defendant presented with moderate eyelid tremors in both eyes and swayed left and right during the test.
During his investigation, the officer noticed defendant had a white coating on his tongue and heat bumps on the back of the tongue, which are commonly caused by heat from inhaling methamphetamine through a glass pipe. He asked defendant when he had last smoked methamphetamine; defendant responded, "'[a]bout two days ago.'" The officer asked defendant if he had smoked marijuana; defendant responded he had smoked marijuana about two hours prior to the traffic stop. While conducting the tests, the officer noted defendant "had a strong odor of marijuana and a chemical smell emitting from his breath and body."
After conducting the tests, the officer believed defendant was under the influence of a central nervous system stimulant and placed him under arrest. He searched defendant and located a small handgun holster in his right front pocket. In another pocket, defendant had "a clear plastic baggie containing a white crystalline substance," which the officer recognized as methamphetamine. He asked defendant if he had a firearm in his vehicle; defendant said he did not know.
The officer conducted an inventory search of defendant's vehicle. He found a loaded, .22-caliber, semiautomatic handgun between the driver's seat and the center console. Inside a backpack on the back passenger seat, the officer found a rubber bong and three pieces of a broken, glass methamphetamine pipe. Along the driver's side door, he located a working Taser.
The officer informed defendant that a blood test would need to be conducted since defendant was a licensed driver who was being arrested for driving under the influence of controlled substances. He told defendant that by providing a blood sample, the sample would be booked into evidence and could be tested later by his defense attorney.
The officer did not inform defendant regarding implied consent. He did not inform defendant that if he did not provide a blood sample, his license could be revoked or suspended. The officer did not tell defendant that he was not required to voluntarily provide a blood sample and that the officer would then have to obtain a warrant.
The officer asked defendant if he would provide a blood sample; defendant said he would. If defendant had said that he would not provide a blood sample, the officer would have applied for a search warrant. He did not do so in this case because defendant had consented. A licensed phlebotomist conducted the blood draw: "At no time when the phlebotomist was at the station, and we were preparing him for the blood test, did he ever say he did not want to do it." If defendant had revoked his consent, the officer would have obtained a search warrant.
Defendant testified that he neither ran a stop sign nor sped. The officer pulled him over and immediately asked to search the vehicle when he approached defendant's door. Defendant declined to allow the officer to search the car, which defendant had borrowed. The officer said, "'You're going to be like that? Well, I think you're under the influence. Step out of the vehicle.'" The officer then arrested and searched defendant.
The officer found "a little lit bit of methamphetamine" and a tool holster on defendant. Defendant told the officer he had smoked methamphetamine a few days before. He also told the officer he had smoked marijuana. The officer's partner searched defendant's vehicle. Defendant did not know there was a gun or a Taser in the car.
The officer told defendant that he had to provide a blood sample because he had been arrested for driving under the influence. Defendant did not know that he could decline to give a blood sample because the officer did not so inform him. Defendant provided the sample because he thought he had to. He never told the officer he did not want to provide a blood sample.
The trial court denied defendant's motion to suppress evidence. Defendant thereafter entered a plea to the sheet, as described ante, after the court gave an indicated sentence of seven years of imprisonment. After the court sentenced defendant to the indicated term, defense counsel requested the court "permanently stay the court fees in this case" pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The court responded, "I'll do that." By minute order dated January 31, 2019, the court "corrected" the order staying all fines and fees pursuant to Dueñas nunc pro tunc; it imposed a restitution fine of $300 pursuant to section 1202.4, subdivision (b); a $300 parole revocation fine pursuant to section 1202.45, subdivision (c); a court operations assessment of $320 ($40 for each conviction); and a $240 criminal conviction assessment ($30 for each conviction).
II. DISCUSSION
A. Motion to Suppress.
Defendant contends the trial court erred in denying defendant's motion to suppress evidence with respect to the results of defendant's blood draw. We disagree.
"'The Fourth Amendment generally requires police to secure a warrant before conducting a search.' [Citations.] Put another way, '[t]he Fourth Amendment demonstrates a "strong preference for searches conducted pursuant to a warrant . . . ."' [Citations.] '[I]t is a cardinal principle that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions."'" (People v. Harris (2015) 234 Cal.App.4th 671, 682-683 (Harris).) "'It is "well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent."'" (Id. at p. 685.)
"California's implied consent law provides that '[a] person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining . . .' the alcoholic or drug content of his or her blood, if he or she is lawfully arrested for DUI of alcohol or a drug. [Citation.] And failure to consent to a chemical test will result in a fine, suspension of the suspect's driver's license, and other serious consequences." (Harris, supra, 234 Cal.App.4th at p. 686.)
"The implied consent law require[s] [officers] to inform defendant[s] that [their] refusal to submit to testing [will] result in a fine, suspension of [their] driver's license[s], and, if . . . convicted of DUI, mandatory imprisonment. [Citation.] The law also require[s] [officers] to inform defendant[s] that a refusal to submit to the test could be used against [them] in a court of law, and that [they] [are] not entitled to have an attorney present when [they] decide[] whether to take the test or during the test." (People v. Lopez (2020) 46 Cal.App.5th 317, 326 (Lopez).)
The concept of implied consent "is a source of confusion" because it conflates an automated, assumed consent based on "implied consent" when actual, expressed consent is constitutionally required. (Harris, supra, 234 Cal.App.4th at p. 686.) "'[T]he implied consent law is explicitly designed to allow the driver, and not the police officer, to make the choice as to whether the driver will give or decline to give actual consent to a blood draw when put to the choice between consent or automatic sanctions. Framed in the terms of "implied consent," choosing the "yes" option affirms the driver's implied consent and constitutes actual consent for the blood draw. Choosing the "no" option acts to withdraw the driver's implied consent and establishes that the driver does not give actual consent.' [Citation.] Therefore, rather than determine whether 'implied consent' to a chemical test satisfies the Fourth Amendment, we must determine whether submission to a chemical test, after advisement under the implied consent law, is freely and voluntarily given and constitutes actual consent." (Ibid.)
"'To be effective, consent must be voluntary. [Citations.]' [Citation.] '[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority. [Citations.]' [Citation.] 'The voluntariness of consent is a question of fact to be determined from the totality of circumstances. [Citations.] If the validity of a consent is challenged, the prosecution must prove it was freely and voluntarily given—i.e., "that it was [not] coerced by threats or force, or granted only in submission to a claim of lawful authority."'" (Harris, supra, 234 Cal.App.4th at pp. 689-690; accord People v. Balov (2018) 23 Cal.App.5th 696, 701 (Balov).)
"'"The . . . voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, 'The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings—whether express or implied—must be upheld if supported by substantial evidence.'"'" (Harris, supra, 234 Cal.App.4th at p. 690; accord People v. Gutierrez (2019) 33 Cal.App.5th Supp. 11, 14 (Gutierrez); accord Balov, supra, 23 Cal.App.5th at p. 700.)
Substantial evidence supports the trial court's implied finding that, under a totality of the circumstances, defendant voluntarily consented to the blood draw. The officer testified that he stopped defendant based on his suspicion defendant was under the influence. Defendant failed to stop at two stop signs and drove on the wrong side of the road at a fast rate of speed. Defendant exhibited symptoms of being under the influence of a central nervous system stimulant during the officer's initial contact with him. The officer conducted several standard field sobriety tests to determine whether defendant was under the influence of an intoxicating substance; defendant failed all of the tests.
During the administration of those tests, the officer detected a strong odor of marijuana and chemicals on defendant. He noticed defendant had a white coating and heat bumps on his tongue, which were indicative of inhaling methamphetamine through a glass pipe. Defendant admitted he had smoked marijuana a few hours before being stopped. He admitted smoking methamphetamine a couple of days earlier. During a search of defendant's pockets, the officer found a bag of methamphetamine. During a search of the vehicle defendant had been driving, the officer found a couple of items of drug paraphernalia.
Here, after all of the previous recited evidence and evidence of recent drug use by defendant, including defendant's own admissions, the officer correctly informed defendant he was required to provide a blood sample. The officer testified that he had obtained defendant's consent. He testified that if defendant had not given him consent, he would have sought a warrant. At no time did defendant object or refuse to undergo the tests. The officer testified that had defendant revoked his consent, the officer would have obtained a warrant. "These facts, seen in light of the implied consent law and the regulatory scheme to prevent drunk driving, are substantial evidence supporting the trial court's determination that, under the totality of the circumstances, defendant consented to [the] blood test." (Lopez, supra, 46 Cal.App.5th at pp. 327-328 [consent to blood draw manifested by officer's instruction that the defendant was required to undergo a blood test and the defendant's failure to object].)
Defendant cites People v. Mason (2016) 8 Cal.App.5th Supp. 11 (Mason), for the proposition that any implied consent is coerced where an officer fails to provide the statutorily mandated advisement that a defendant may refuse a blood draw and the consequences of such a refusal. (Id. at pp. Supp. 21-22, 29, 31-33.) However, even the Mason court acknowledged that a "defendant need not be advised of the right to refuse as a prerequisite to a finding of voluntariness." (Id. at p. Supp. 20.) Moreover, two courts have expressly disagreed with Mason.
In Balov, supra, 23 Cal.App.5th 696, the court expressly disagreed with Mason "that the failure to communicate the consequences of refusing the chemical test necessarily conveys to the driver that refusal to test is not an option." (Balov, at p. 704, fn. 5 [Officer's "failure to communicate the consequences of refusing a chemical test did not make [the officer's] statement any more or less coercive than if the information had been provided."].) The court in Lopez, supra, 46 Cal.App.5th 317, similarly disagreed with Mason, reasoning that the "lack of . . . admonitions did not deny [the defendant] a right to resist the test." (Lopez, at p. 333.) The Lopez court found that by giving implied consent no weight, the Mason court "effectively repeal[ed] the implied consent law based on no constitutional infirmity." (Lopez, at p. 333.) Likewise, the Lopez court found that "despite its use of the totality of the circumstances test," the Mason court improperly "converted the admonitions into a constitutional requirement whenever an officer correctly states that the implied consent law requires motorists to submit to chemical tests if lawfully arrested for driving under the influence." (Lopez, at p. 333; accord People v. Agnew (2015) 242 Cal.App.4th Supp. 1, 16 (Agnew) ["[R]equiring the statutory admonition about the consequences of withdrawing consent in every case, or even treating that as the critical factor, would improperly elevate the admonishment to a constitutional requirement under the Fourth Amendment."].)
We agree with the courts in Harris, Agnew, Lopez, and Balov, that an officer's failure to give the statutorily mandated advisements regarding the implied consent law is only one factor to consider in evaluating whether a defendant voluntarily consented to a blood draw under a totality of the circumstances. As discussed ante, despite the officer's failure to provide such advisements in this case, sufficient evidence supports the trial court's implied determination that defendant consented to the blood draw. Thus, substantial evidence supports the court's denial of defendant's motion to suppress.
B. Fines and Fees.
Defendant contends that the abstract of judgment does not reflect the trial court's order, which stayed the imposition of fines and fees, and he requests that we order the court to strike the nunc pro tunc "correction." The People respond that because the record is silent as to why the court issued the "correction," we should remand the matter for the limited purpose of allowing the court to clarify its order regarding the fees. We agree with the People.
In Dueñas, supra, 30 Cal.App.5th 1157, the court held that court facilities and court operations assessments must be subject to an ability to pay determination despite the statutory preclusion of such a determination with respect to section 1202.4 restitution fines. (Dueñas, at pp. 1164, 1172, rejected by People v. Allen (2019) 41 Cal.App.5th 312, 326-328.) Here, defense counsel moved the trial court to stay court fees in this case pursuant to Dueñas. The court responded, "I'll do that." The minute order reflects that the "Court orders all mandatory fines and fees permanently stayed pursuant to People vs. Dueñas."
However, on January 31, 2019, a new minute order was issued, outside of defense counsel's presence, indicating: "The Court finds that the minute order dated 01/25/2019 does not correctly/clearly reflect the Court order and orders it corrected Nunc Pro Tunc to reflect: 'Previous Court orders permanently staying all mandatory fines and fees pursuant to People v. Dueñas are stricken.'" The new minute order and abstract of judgment reflect the imposition of a $300 restitution fine (§ 1202.4, subd. (b)), a $300 parole revocation fine of $300 (§ 1202.45, subd. (c)), a $320 court operations assessment, and a $240 criminal conviction assessment.
Defendant maintains that because the new minute order and abstract of judgment do not reflect the trial court's order as reflected in the reporter's transcript at sentencing, the court should be directed to "correct" its abstract of judgment and the corrected minute order. The People contend that because it is unknown from the record why the court chose to "correct" the minute order, this court should remand the matter to the trial court to either explain its correction or reinstate its original order staying the imposition of the fines and fees. We agree with the People that the trial court's "correction" is not merely an issue of discrepancies between the reporter's transcript and the minute order. Thus, we shall direct that the matter be remanded to the trial court, in the presence of the parties, to either impose or stay imposition of the fines and fees.
C. Imposition of Sentence on the Prior Prison Terms.
In a supplemental brief, defendant contends the consecutive one-year sentences for his prior prison terms must be stricken based on recent legislation. The People concede the issue. We agree.
"Effective January 1, 2020, the one-year enhancement in Penal Code section 667.5, subdivision (b) [(Stats. 2019, ch. 590, § 1)] applies only if the defendant's prior prison term was 'for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.' [Citation.] The amendment applies retroactively to defendants whose judgments are not yet final." (People v. Herrera (2020) 52 Cal.App.5th 982, 995.)
Here, defendant admitted three prior prison term allegations from convictions for carrying a loaded firearm, stalking, and forgery. None of them were for a sexually violent offense as defined by the statute. On January 25, 2019, the trial court imposed a consecutive term on defendant's prior prison term derived from his conviction for carrying a loaded firearm. The court imposed but stayed punishment on the remaining two prior prison term allegations. Thus, because defendant's judgment is not yet final, the amendment to section 667.5, subdivision (b), applies, and the prior prison enhancement upon which the court imposed a one-year consecutive sentence must also be stricken.
The court stayed the sentence on the prior prison terms, which is an unauthorized sentence. (People v. Langston (2004) 33 Cal.4th 1237, 1242; People v. Lua (2017) 10 Cal.App.5th 1004, 1020-1021.) On remand, we shall order the second and third prior prison terms stricken. --------
III. DISPOSITION
The trial court is directed to hold a hearing at which it may either impose or stay the imposition of the fines and fees, as discussed in this opinion. The two, one-year section 667.5, subdivision (b), prior prison term enhancements, which the court imposed but stayed, are ordered stricken. The third, one-year section 667.5, subdivision (b), prior prison term enhancement, which the court imposed a one-year consecutive term of imprisonment, is also ordered stricken.
The trial court is further directed to amend the abstract of judgment and its minute order of the sentencing hearing to reflect these modifications and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.)
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.