Opinion
2d Crim. B309156
02-23-2022
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JESSE ANGEL CONTRERAS, Defendant and Appellant.
Olivia Meme, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Rene Judkiewicz, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 20CR04372 James K. Voysey, Judge
Olivia Meme, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Rene Judkiewicz, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Jesse Angel Contreras appeals the judgment entered after he pleaded no contest to being a felon in possession of a firearm and ammunition (Pen. Code, §§ 29800, subd. (a)(1), 30305, subd. (a)). The trial court imposed a three-year state prison sentence, suspended its execution, and placed appellant on three years of probation with terms and conditions including that he serve 150 days in county jail. Appellant contends the court erred in denying his motion to suppress the firearm and ammunition 1 under the good faith exception to the Fourth Amendment's exclusionary rule. He also contends that his term of probation must be reduced to two years pursuant to section 1203.1 as amended effective January 1, 2021. We agree with the latter contention and we shall order the judgment so modified. Otherwise, we affirm.
All statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
The relevant facts are derived from the transcript of the hearing on appellant's suppression motion. At approximately 7:00 p.m. on May 3, 2020, Santa Maria Police Officer Ruben Peinado was on patrol when he saw a vehicle parked in a handicapped-accessible parking space without a visible placard. Officer Peinado approached the vehicle and contacted appellant, who was sitting in the driver's seat. The officer asked appellant for his driver's license, which appellant gave him, and returned to his patrol car to conduct a records check.
The police dispatcher, Megan Boland, told Officer Peinado over the radio that appellant was on "probation" in Kern County with "general search terms" for being a felon in possession of a firearm (§ 29800, subd. (a)(1)). Officer Peinado asked Boland "to clarify what general search terms meant and . . . get more specifics." Boland subsequently told the officer she had verified with "somebody" in Kern County that appellant "was on PRCS (post-release community supervision) . . . with full search [terms]."
Officer Peinado returned to appellant's vehicle and said he was going to search the vehicle because appellant was on PRCS. Appellant repeatedly insisted that although he had been on PRCS, he was no longer on PRCS or any other form of supervision with search terms. After appellant was removed 2 from the vehicle, Officer Peinado searched the interior and found a firearm and ammunition under the center console.
After appellant was arrested and transported to the police station, Officer Peinado called the Kern County Probation Department "to basically do another check and just make sure everything was correct." The officer was unable to reach anyone until a couple of days later, when he was told that appellant had been on PRCS for being a felon in possession of a firearm but was no longer on PRCS or any other form of supervision. After the search and arrest, Officer Peinado also reviewed a printout from dispatch erroneously stating that appellant was on PRCS until January 1, 2050. Appellant's PRCS had actually been successfully terminated on December 17, 2018. Prior to the instant matter, Officer Peinado had never received incorrect information through a records check during his six years as a police officer.
At the conclusion of the hearing, the trial court agreed with the People that the warrantless search of appellant's vehicle was valid under the good faith exception to the exclusionary rule and denied the motion to suppress. The court found that Officer Peinado relied in good faith on the information provided to him by dispatch that appellant was currently on PRCS, and that the error was the result of simple negligence rather than systemic negligence or a reckless disregard for constitutional rights, as set forth in Herring v. United States (2009) 555 U.S. 135 (Herring). 3
DISCUSSION
Motion To Suppress
Appellant contends the trial court erred in denying his motion to suppress the firearm and ammunition under the good faith exception to the exclusionary rule. We are not persuaded.
Under the Fourth Amendment to the United States Constitution, searches and seizures conducted without a warrant are presumptively unreasonable. "When a defendant raises a challenge to the legality of a warrantless search or seizure, the People are obligated to produce proof sufficient to show, by a preponderance of the evidence, that the search fell within one of the recognized exceptions to the warrant requirement. [Citations.] A probation search is one of those exceptions." (People v. Romeo (2015) 240 Cal.App.4th 931, 939.)
Where such a search is subsequently found to be invalid, "a Fourth Amendment violation is shown and the question . . . becomes whether such constitutional violation is appropriately remedied by application of the judicially created exclusionary rule which prohibits the admission at trial of the evidence obtained during the unlawful search." (People v. Downing (1995) 33 Cal.App.4th 1641, 1650-1651 (Downing ), citing United States v. Leon (1984) 468 U.S. 897, 906 (Leon).) Exclusion of the evidence is compelled "only where it '"result[s] in appreciable deterrence."'" (Herring, supra, 555 U.S. at p. 141.) The Supreme Court has recognized that "exclusion 'has always been our last resort, not our first impulse,' [citation] and our precedents establish important principles that constrain application of the exclusionary rule." (Id. at p. 140.)
"To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, 4 and sufficiently culpable that such deterrence is worth the price paid by the justice system. . . . [T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." (Herring, supra, 555 U.S. at p. 144.) "[W]hen police mistakes are the result of negligence . . . rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not 'pay its way.' [Citation.] In such a case, the criminal should not 'go free because the constable has blundered.' [Citation.]" (Id. at pp. 147-148.)
"'In reviewing a suppression ruling, "we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, [but] we exercise our independent judgment in determining the legality of a search on the facts so found."' [Citation.]" (People v. Tully (2012) 54 Cal.4th 952, 979.) "'As the finder of fact . . . the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable.' [Citation.] We review its factual findings '"'under the deferential substantial-evidence standard.'"' [Citation.] Accordingly, '[w]e view the evidence in a light most favorable to the [trial court's] order[, ] . . .' and '[a]ny conflicts in the evidence are resolved in favor of the superior court ruling' [citation]. Moreover, the reviewing court 'must accept the trial court's resolution of disputed facts and its assessment of credibility.'" (Ibid.)
The search of appellant's vehicle was warrantless and was thus presumptively unreasonable. (People v. Williams (1999) 20 Cal.4th 119, 127.) Officer Peinado conducted the search based on 5 erroneous information conveyed to him by Boland, i.e., that appellant was on PRCS and subject to full search terms. The issue is thus whether the officer acted in objectively reasonable good faith on the information provided to him. (Herring, supra, 555 U.S. at pp. 140, 142.) The "'good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal' in light of 'all of the circumstances.'" (Id. at p. 145, quoting Leon, supra, 468 U.S. at p. 922.)
Based on the record, we cannot conclude that an objectively reasonable officer would or should have known that the information provided by Boland was erroneous. Officer Peinado testified that he had never received erroneous information through a records check during his six years as a police officer. That the officer could have taken additional steps to verify appellant's PRCS status does not undermine our conclusion that the officer acted reasonably based on the information he had when he acted. (People v. Downey (2011) 198 Cal.App.4th 652, 660.)
Appellant contends that People v. Willis (2002) 28 Cal.4th 22 (Willis) compels the conclusion that the good faith exception to the exclusionary rule did not apply here. In Willis, a parole record indicated the defendant was on parole when he had actually been discharged from parole months earlier. (Id. at pp. 26-28.) Although the defendant denied being on parole and presented documentation to the officers that he had been discharged from parole, a parole officer and a police officer searched his motel room and found illegal drug and related paraphernalia. (Id. at p. 27.) The source of the error in the defendant's parole record was unclear, but it was either the fault 6 of the parole officer who directed the search, or a parole system data-entry clerk who was responsible for maintaining accurate parole records. (Id. at p. 35.)
In reversing the denial of the defendant's motion to suppress, the California Supreme Court held the good-faith exception to the exclusionary rule had not been established. (Willis, supra, 28 Cal.4th at p. 25.) The court found that the officers' reliance on the erroneous parole record was not objectively reasonable because neither officer made any attempt to verify the defendant's parole status by other means prior to conducting the search. (Id. at p. 43.) The court further found the error was attributable to the entire "law enforcement team," which included the parole officer and the data-entry clerk, as adjuncts to law enforcement. (Id. at pp. 44.) Thus, the fact that the defendant had been discharged from parole prior to the search was within the collective knowledge of the law-enforcement team, which precluded application of the good-faith exception. (Id. at p. 40.)
Appellant's reliance on Willis is misplaced. Among other things, the officers in that case ignored the defendant's parole-discharge papers showing he was no longer subject to search. Here, Officer Peinado was not presented with any such evidence. Moreover, after Willis was decided the United States Supreme Court refined the parameters of the good faith exception in Herring, supra, 555 U.S. 135. If the exception did not previously apply to errors in law-enforcement recordkeeping (Willis, supra, 28 Cal.4th at p. 48), in light of Herring the exception plainly applies where such errors are "the result of negligence . . . rather than systemic error or reckless disregard of constitutional requirements." (Herring, at p. 147.) 7
In Herring, officers in one county arrested defendant Herring based on a warrant listed in a neighboring county's computer database. Herring was searched incident to arrest, and the officers found drugs and a gun. (Herring, supra, 555 U.S. at p. 137.) It was subsequently discovered that the warrant had been recalled months earlier but the information was never entered into the county's database. (Id. at pp. 137-138.) Herring was indicted on federal gun and drug possession charges and filed a motion to suppress, which was denied. (Id. at p. 138.) His suppression motion was denied. (Ibid.)
After acknowledging that the subject errors were due to negligent police recordkeeping, the United States Supreme Court upheld the denial of the suppression motion. (Herring, supra, 555 U.S. at p. 147.) The court concluded that "[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." (Id. at p. 144.) When "police mistakes are the result of negligence . . . rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not 'pay its way.' [Citation.] In such a case, the criminal should not 'go free because the constable has blundered.'" (Id. at pp. 147-148.)
Because the officers who arrested Herring "did nothing improper" and the error in failing to update the database to reflect recall of the warrant was only negligent rather than reckless or deliberate, the error was not enough "by itself to require 'the extreme sanction of exclusion.'" (Herring, supra, 555 U.S. at p. 140.) 8 The court in Herring reasoned that the result would be different if the police "have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests." (Id. at p. 146.) Further, "where systemic errors were demonstrated, it might be reckless for officers to rely on an unreliable warrant system." (Ibid.) The conduct at issue in Herring, however, "was not so objectively culpable as to require exclusion." (Ibid.)
Here, the trial court did not err in concluding that the erroneous information that appellant was still on PRCS was the "result of isolated negligence attenuated from the arrest." (Herring, supra, 555 U.S. at p. 137.) Nothing in the record demonstrates that law enforcement officials acted with a "deliberate, reckless, or grossly negligent" disregard for appellant's Fourth Amendment rights. (Id. at p. 144.)
In asserting otherwise, appellant claims that both Officer Peinado and dispatcher Boland relied on a report (which is not included in the record on appeal) that was "grossly erroneous on its face, showing that appellant was on PRCS-which has a statutory maximum term of three years-until 2050." But the record does not demonstrate that either Officer Peinado or Boland relied on the erroneous information regarding the expiration date of appellant's PRCS. As Officer Peinado made clear in his testimony at the suppression hearing, Boland did not convey this erroneous information to him over the radio and he did not actually review the report until after the search was conducted. The trial court implicitly found this testimony credible and we have no authority to reject that finding. (People v. Tully, supra, 54 Cal.4th at p. 979.) The record further reflects that at Officer Peinado's request, Boland followed up on the 9 information she had by verifying with "somebody" in Kern County that appellant was on active PRCS.
While we do not dispute it is the prosecution's burden to establish the good faith exception applies-i.e., that the police mistake was the result of negligence rather than systemic error or reckless disregard of constitutional requirements-Herring does not require the prosecution to disprove a negative. In Herring, the testimony of the officer and dispatchers that they personally had not experienced any problems with the system was deemed sufficient to demonstrate an absence of widespread errors. (Herring, supra, 555 U.S. at pp. 146-147.) Here, Officer Peinado testified that in his six years as an officer he had never had a records check come back incorrect. Although the prosecution did not call Boland to testify, Officer Peinado's unchallenged testimony on the issue supports the finding that the subject recordkeeping error-which was attenuated from the arrest-was an isolated act of negligence. Contrary to appellant's claim, the issue is not whether Officer Peinado sought out all available information about appellant's alleged probationary status prior to conducting the search, but whether his decision to conduct the search was objectively reasonable in light of the knowledge he had. (See People v. Douglas (2015) 240 Cal.App.4th 855, 871-872 [officer had objectively reasonable belief that defendant was on PRCS, and his failure to run computer check to verify the defendant's current PRCS status did not render the officer's action objectively unreasonable].) Here, as in Herring, Officer Peinado's conduct was not so objectively culpable as to require exclusion. (Herring, at p. 146.)
In light of all of the circumstances, substantial evidence supports a finding that Officer Peinado acted in objectively 10 reasonable reliance on the information provided to him by Boland. The evidence is also sufficient to demonstrate that the error was an isolated act of negligence rather than a systemic error or an instance of gross negligence or reckless disregard for appellant's constitutional rights. Pursuant to Herring, the "marginal deterrence" of applying the exclusionary rule in this context "does not 'pay its way.'" (Herring, supra, 555 U.S. at pp. 147-148.) The court thus did not err in denying appellant's motion to suppress.
Probationary Term (§ 1203.1)
Effective January 1, 2021, section 1203a and 1203.1 were amended by Assembly Bill (AB) 1950 to limit the maximum term of probation a trial court is authorized to impose for most felony offenses to two years and most misdemeanor offenses to one year. (§§ 1203a, subd. (a), 1203.1, subds. (a) & (m)), as amended by Stats. 2020, ch. 328, §§ 1, 2.) "[T]he . . . limitation[s] on . . . probation set forth in . . . [AB] 1950 [are] ameliorative change[s] to the criminal law that [are] subject to the [In re] Estrada [(1965) 63 Cal.2d 740] presumption of retroactivity." (People v. Sims (2021) 59 Cal.App.5th 943, 964.) Accordingly, the subject amendments apply to all cases not final on January 1, 2021. (Estrada, at p. 742.)
Appellant's case was not final on January 1, 2021, and he was sentenced to a three-year term of probation. Appellant is thus entitled to the benefit of AB 1950. Although the People urge us to remand the matter, they fail to persuade us that a remand is necessary. Accordingly, we shall simply order that appellant's term of probation is reduced from three years to two years. (People v. Quinn (2021) 59 Cal.App.5th 874, 885.) 11
DISPOSITION
The order granting probation is modified and reduced to two years. In all other respects, the judgment is affirmed.
We concur: GILBERT, P. J., YEGAN, J. 12