Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS091922.
Mihara, J.
Defendant Adriaan Daniel Knox appeals from a judgment of conviction entered after a jury found him guilty of possession of a controlled substance for sale (Health & Saf. Code, § 11378 - count 1), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a) - count 2), possession of a controlled substance without a prescription (Bus. & Prof. Code, § 4060 - count 3), and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a) - count 4). Defendant also admitted that a prior narcotics conviction enhancement allegation (Health & Saf. Code, 11370.2, subd. (c)) in connection with count 1 was true. The trial court sentenced defendant to state prison for a term of two years. On appeal, defendant contends: (1) the trial court erred in denying his motion to suppress evidence; (2) he was penalized for exercising his right to trial by jury; and (3) he was entitled to additional conduct credits pursuant to Penal Code section 4019. We find no error and affirm the judgment.
The trial court initially sentenced defendant to state prison for a five-year term. However, the prosecutor later learned that the enhancement allegation did not apply. The trial court then struck the allegation and reduced the sentence to two years.
All further statutory references are to the Penal Code.
I. Statement of Facts
The police responded to a call regarding a medical emergency and Officer Ian Parsons was led into the residence where he found a deceased body in a downstairs bedroom. The officer conducted a protective sweep of the residence to secure it for the arrival of medical and fire personnel. In an upstairs bedroom, the officer saw a prescription pill bottle with bindles and a white substance that appeared to be methamphetamine or cocaine. A criminalist later confirmed that the white substance was 4.77 grams of methamphetamine. Officer Parsons also saw a rolled up $100 bill, a digital scale, Ziploc bags, and bindles. After obtaining a search warrant, the officer found defendant’s driver’s license and a court notice addressed to defendant in the bedroom. He also found more packaging materials, a pipe, several cell phones, and six pages of pay-owe sheets.
When defendant arrived at the residence, he stated that everything in the upstairs bedroom was his. Officer Parsons arrested him, and found $3,449 in cash in his pocket. Defendant later told him that he was “probably going to get about three years for this.”
Detective Rob Winningham testified as expert in the area of drug possession for sale. He gave his opinion that defendant possessed the methamphetamine for sale based on the amount of cash involved, the digital scale, the packaging material, the pay-owe sheets, and the multiple cell phones.
II. Discussion
A. Motion to Suppress Evidence
Defendant does not challenge the lawfulness of the officer’s entry into the front bedroom. However, he contends that the trial court should have granted his suppression motion because the officer could not lawfully enter his bedroom under the protective sweep doctrine.
1. Background
At about 8:30 p.m. on August 11, 2009, Officer Parsons was dispatched to a house for a medical emergency. As he approached the house, he encountered several males. Some had just walked out of the house, while one was standing in front of it. When asked if anybody else was in the house, the response was “we don’t know.” One of the men told Officer Parsons that his deceased father was in the front bedroom and invited him into the house.
When Officer Parsons entered the house, he discovered that there was no electricity. Using his flashlight, the officer followed the man to the front bedroom. He did not need to enter any other bedrooms or bathrooms to reach the bedroom with the deceased in it. He noticed that the house was “very unkempt” with “a lot of clothing on the floor, very little usable furniture in the bedrooms.” The deceased 49-year-old male was facing down and lying on his right side on a bed. The signs of levidity were obvious, and thus the officer did not attempt to render any aid. Officer Parsons also could not determine whether the death was due to a homicide, suicide, or natural causes, and he had no information about whether there were any suspects or other victims in the house.
Officer Parsons consulted with one of the sergeants who was at the scene, and the decision was made to “to secure the scene for fire and ambulance[, ] a protective sweep to determine if anybody else, either suspect, victim, or unknown persons, were inside the residence.” Officer Parsons then used his flashlight to check the other rooms. He did not open cupboards. In an upstairs bedroom, he found an amber-colored prescription bottle, some packaging materials, and a scale on a desk. The officer did not seize these items. He backed out of the room, spoke to his supervisor, and decided to obtain a search warrant. While he was conducting the protective sweep, Officer Parsons did not feel personally threatened.
The trial court denied the motion to suppress evidence after concluding that “a combination of protective sweep... with the caretaker function” justified the search of the house.
2. Standard of Review
“ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]’ ” (People v. Weaver (2001) 26 Cal.4th 876, 924, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.)
3. Protective Sweep
The federal and state Constitutions prohibit unreasonable searches and seizures. (U.S. Const., 4th & 14th Amends.; Cal. Const., art. I, § 13.) A warrantless search inside a home is presumptively unreasonable. (Payton v. New York (1980) 445 U.S. 573, 587.) In the case of a warrantless search of a home, the prosecution bears the burden of establishing that the search “was justified by some exception to the warrant requirement.” (People v. Camacho (2000) 23 Cal.4th 824, 830.) One recognized exception to this requirement is a protective sweep, which “is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” (Maryland v. Buie (1990) 494 U.S. 325, 327 (Buie).) In order to conduct a protective sweep, “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” (Buie, at p. 334.)
However, the protective sweep doctrine is not limited to situations in which there has been an arrest. A protective sweep incident to a probation search was upheld in People v. Ledesma (2003) 106 Cal.App.4th 857 (Ledesma). As Ledesma observed: “Buie, supra, 494 U.S. 325, involved a protective sweep in the context of an arrest. Subsequent cases, however, have clarified that its holding is not limited to arrest situations. (U.S. v. Taylor (6th Cir. 2001) 248 F.3d 506, 513 [officer left behind to secure residence while search warrant is obtained may conduct protective sweep]; Drohan v. Vaughn (1st Cir. 1999) 176 F.3d 17, 22 [officers executing search warrant may conduct protective sweep]; U.S. v. Patrick (D.C. Cir. 1992) 959 F.2d 991, 996-997 [police may conduct protective sweep of bedroom after lessee has given consent to search other parts of apartment].) Furthermore, a respected treatise notes that when officers are rendering aid, they may conduct a protective sweep of the premises so long as the requirements of Buie are met. (3 LaFave, Search and Seizure (3d ed. 1996) § 6.6(a), pp. 401-402.)” (Ledesma, at p. 864.)
Applying the Buie standard to the present case, we conclude that the protective sweep was justified. Before the officer entered the house in response to a medical emergency, he was told by individuals leaving the house that they did not know if others were present inside. Their equivocal response would justify a reasonable suspicion by a prudent officer that, in fact, others were there. The officer was then led by one of the men into an unkempt house in which there was no electricity. Using his flashlight, he found a deceased 49-year-old man in the front bedroom. The officer could not determine whether the death was due to a homicide, suicide, or natural causes. He also did not know whether there were any other victims or suspects in the house. Based on these circumstances, a prudent officer could reasonably conclude that the house might harbor a person who could cause harm to him or emergency personnel who were en route. Since the protective sweep was permissible, the trial court properly denied the motion to suppress evidence.
The present case is distinguishable from those in which the officer has no information that a dangerous individual is present in the residence and the officer attempts to justify the protective sweep of a home based on the possibility that such an individual might be present. (People v. Celis (2004) 33 Cal.4th 667, 679 [“[W]hen they entered the house to conduct a protective sweep, they did so without ‘any information as to whether anyone was inside the house.’ ”]; People v. Ormonde (2006) 143 Cal.App.4th 282, 294 [The People argued protective sweep was justified by officer’s past experiences in domestic violence cases, rather than that there were “any grounds for suspecting” someone was in the residence.].
B. Sentencing Error
Defendant argues that he was penalized for exercising his right to a jury trial because his two-year prison term was more severe than the pretrial offer of probation by the prosecutor.
Before trial, the prosecutor stated that the “offer had been for felony probation for the possession for sales as well as admitting the prior, which would expose him to potentially six years in prison if he were to violate probation.” Defendant then indicated that he wanted a jury trial. Following his conviction, the trial court sentenced defendant to two years in prison after the prior conviction allegation was found to be inapplicable. At no time did the trial court indicate that it was penalizing defendant for exercising his right to a jury trial.
A defendant’s right to due process is violated if he is punished for exercising his right to a trial. (In re Lewallen (1979) 23 Cal.3d 274, 278.) Thus, a trial court “ ‘may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right.’ [Citation.]” (Id. at pp. 278-279.) However, “a trial court’s discretion in imposing sentence is in no way limited by the terms of any negotiated pleas or sentences offered by the prosecution. The imposition of sentence within the legislatively prescribed limits is exclusively a judicial function. [Citation.]... Legitimate facts may come to the court’s attention either through the personal observations of the judge during the trial [citation], or through the presentence report by the probation department, to induce the court to impose a sentence in excess of any recommended by the prosecution. Thus it is clear that under appropriate circumstances a defendant may receive a more severe sentence following trial than he would have received had he pleaded guilty.... [Citation.]” (Id. at p. 281, fn. omitted.)
Here, the trial court denied probation “based on [his] track record and the nature of the offenses....” Defendant argues that his criminal history was “fully known to the court before trial began” because the information alleged that he had a prior conviction for a violation of Health and Safety Code section 11352, subdivision (a). However, the probation report provided additional information about defendant’s criminal history. Defendant was convicted of a misdemeanor violation of section 148, subdivision (a)(1). He was also arrested for possession of cocaine and narcotics sales. While on both court and formal drug diversion probation, “he violated all grants by failing to obey all laws, failing to attend treatment programs, and/or testing positive for drug usage.” However, he eventually completed probation and both drug cases were ultimately dismissed. Based on this record, the probation officer recommended a state prison commitment. That the jury found defendant guilty of all, rather than only two, charges, and his prior criminal history constituted legitimate facts upon which the trial court could base its sentence in excess of that offered by the prosecutor prior to trial. Accordingly, defendant has failed to show that he was deprived of due process.
C. Amended Section 4019
Defendant also contends that he is entitled to additional presentence conduct credits pursuant to amended section 4019.
This issue is currently before the California Supreme Court in People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.
A defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody prior to sentencing. (§ 2900.5, subd. (a).) A defendant may also earn additional presentence credit for satisfactory performance of assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). “ ‘Conduct credit’ collectively refers to worktime credit pursuant to section 4019, subdivision (b), and to good behavior credit pursuant to section 4019, subdivision (c). [Citation.]” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Under the former version of section 4019, a defendant earned two days of conduct credit for every four actual days served in local custody. (Former § 4019, subds. (b), (c).) However, in October 2009, Senate Bill No. 18 was enacted. Among other things, amended section 4019 increased conduct credits for defendants who have no current or prior convictions for serious or violent felonies and who are not required to register as sex offenders. (§ 4019, subds. (b)(1), (c)(1).) These defendants are now eligible to earn two days of conduct credits for every two days of actual custody. (§ 4019, subds. (b)(1), (c)(1).)
Our references to section 4019 or amended section 4019 are to the version of section 4019 which took effect on January 25, 2010. Section 4019 has since been revised yet again, effective on September 28, 2010. None of our references are to this current version of section 4019.
Here, defendant was awarded 60 days of work and conduct credits based on 120 days in actual custody. These presentence credits were awarded under former section 4019.
Section 3 states that no part of the Penal Code is “retroactive, unless expressly so declared.” The California Supreme Court has interpreted section 3 “to mean ‘[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]’ ” (People v. Alford (2007) 42 Cal.4th 749, 753 (Alford).) “[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209 (Evangelatos).)
The Legislature did not expressly state which version of section 4019 should apply to cases not yet final as of its effective date. Thus, we must determine whether the Legislature’s intent is “very clear from extrinsic sources.” (Evangelatos, supra, 44 Cal.3d at p. 1209.)
There is an exception to the general rule of prospective application. “[A]bsent a saving clause, a defendant is entitled to the benefit of a more recent statute which mitigates the punishment for the offense or decriminalizes the conduct altogether. [Citations.]” (People v. Babylon (1985) 39 Cal.3d 719, 722.) This rule was first articulated in In re Estrada (1965) 63 Cal.2d 740 (Estrada). In that case, the California Supreme Court reasoned that “[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (Id. at p. 745.)
At issue then is whether a statute that increases presentence credits lessens punishment within the meaning of Estrada. People v. Hunter (1977) 68 Cal.App.3d 389 (Hunter) addressed this issue in connection with custody credits. In 1976, the Legislature amended section 2900.5 to provide that a defendant was entitled to custody credits against a county jail sentence imposed as a condition of probation. (Hunter, at p. 392.) Applying Estrada, Hunter held that the amendment to section 2900.5 “must be construed as one lessening punishment, ” and thus applied the amended statute retroactively. (Hunter, at p. 393.)
People v. Doganiere (1978) 86 Cal.App.3d 237 (Doganiere) considered whether amended section 2900.5 that entitled a defendant to conduct credits while in custody pursuant to a probation order applied retroactively. (Doganiere, at pp. 238-239.) The court rejected the People’s argument that custody credits were distinguishable from conduct credits because conduct credits are “designed to control future prison inmate behavior, encourage future cooperation in prison programs, and foster future inmate self-improvement.” (Id. at p. 239.) Doganiere concluded that “[u]nder Estrada, it must be presumed that the Legislature thought the prior system of not allowing credit for good behavior was too severe.” (Id. at p. 240.) We disagree with the reasoning in Doganiere. In enacting legislation to authorize conduct credits, the Legislature is not seeking to lessen punishment. Rather, “conduct credits are designed to ensure the smooth running of a custodial facility by encouraging prisoners to do required work and to obey the rules and regulations of the facility.” (People v. Silva (2003) 114 Cal.App.4th 122, 128.)
In In re Stinnette (1979) 94 Cal.App.3d 800 (Stinnette), the court considered whether prospective application of the conduct credit statutes of the recently enacted Determinate Sentencing Act violated petitioner’s equal protection rights. Stinnette rejected the equal protection challenge, reasoning that the purpose of the statutes was “motivating good conduct among prisoners so as to maintain discipline and minimize threats to prison security. Reason dictates that it is impossible to influence behavior after it has occurred.” (Stinnette, at p. 806; People v. Guzman (1995) 40 Cal.App.4th 691, 695 [“The purpose of Penal Code section 4019 is to encourage good behavior by incarcerated defendants prior to sentencing.”].) Similarly, here, retroactive application of amended section 4019 could have no affect on a defendant’s past behavior.
Since there is no “ ‘compelling implication that the Legislature intended otherwise’ ” (Alford, supra, 42 Cal.4th at p. 753), we conclude that amended section 4019 applies prospectively.
Defendant also argues that prospective application of amended section 4019 violates his equal protection rights.
Both the federal and state Constitutions guarantee the right to equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) “ ‘ “The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” ’ [Citation.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Since the amendments to section 4019 do not involve a “ ‘ “ ‘suspect classification’ ” ’ ” or a “ ‘ “ ‘fundamental interest’ ” ’ ” courts apply the rational basis test to determine whether the “distinction drawn by the challenged statute bears some rational relationship to a conceivable legitimate state purpose.” (Stinnette, supra, 94 Cal.App.3d at p. 805.) Here, as previously discussed, the state has a legitimate purpose in encouraging good behavior by inmates. Since “it is impossible to influence behavior after it has occurred” (id. at p. 806), awarding conduct credits as of the effective date of the statute was rationally related to a legitimate state interest. Accordingly, the prospective application of amended section 4019 does not violate defendant’s equal protection rights.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J.Duffy, J.