Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF124801B Michael G. Bush and John R. Brownlee, Judges.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Victor Manuel Sandoval, a passenger in a car found with 15 bricks of methamphetamine in a hidden compartment, appeals his conviction for transporting methamphetamine. He contends the trial court erred in denying his motion to suppress evidence and in concluding it did not have the discretion to impose a drug-quantity sentence enhancement as a concurrent term.
We conclude the trial court correctly denied the motion to suppress, and Penal Code section 1170.1, subdivision (d) requires the sentence enhancement to be imposed as a consecutive term.
The judgment will be affirmed.
PROCEDURAL HISTORY
On November 26, 2008, defendant was charged by information with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 1), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 2), using a false compartment in the act of transportation (Health & Saf. Code, § 11366.8, subd. (a); count 3), and conspiring to transport methamphetamine (Pen. Code, § 182; count 4). All four counts included an enhancement allegation that the methamphetamine exceeded four kilograms in weight (Health & Saf. Code, § 11370.4, subd. (b)(2)).
Defendant filed a motion to suppress evidence. The court conducted a hearing on March 10, 2009, and issued an order denying the motion nine days later.
The case was tried to a jury in August 2009. The jury found defendant guilty of counts 1 and 3, found the drug-quantity enhancement true, and failed to reach a verdict on the possession for sale charge (count 2). The trial court had dismissed the conspiracy charge (count 4) for lack of evidence.
In September 2009, the trial court imposed a total term of imprisonment of eight years eight months, which consisted of the three-year middle term on the transportation count, a five-year drug-quantity enhancement under Health and Safety Code section 11370.4, subdivision (b)(2), and one-third of the two-year middle term on the false compartment count.
FACTS
During the afternoon of February 15, 2008, Detective Michael Hale of the Bakersfield Police Department requested patrol officers to follow a 2004 Nissan Altima and, if a traffic violation occurred, stop the vehicle. Hale informed the officers that the vehicle was suspected of being involved in drug trafficking. The patrol officers followed the car and observed it following another vehicle too closely and exceeding the speed limit by approximately five miles per hour. Based on their observations, the patrol officers stopped the Nissan.
Officer Eli Brown approached the driver’s side of the Nissan and Officer Michael Johns approached the passenger’s side of the car. Defendant was a passenger when the stop occurred.
Officer Brown asked the driver for his license and the driver, Victor Jimenez Avila, said he did not have one. Officer Brown checked with the department’s communications center and confirmed that Avila did not have a valid driver’s license. At that point, Officer Brown arrested Avila for the misdemeanor violation of driving without a license and placed him in the rear of the patrol car.
Officer Brown testified that before he conducted an inventory search of the Nissan, the officers asked defendant to be seated in the rear of the patrol vehicle because it was safer than having him stand at the side of the heavily traveled road. During the inventory search, Officer Brown found two rolls of plastic wrap in the trunk but did not find any clothes, suitcases, or briefcases. He also noticed the center section of the dashboard was popped up and looked like it had been manipulated and not replaced properly. Consequently, Officer Brown called an officer to bring a dog trained to alert to the scent of illegal drugs. The officer requested that the Nissan be taken to the police station where the dog could perform a better search and would not be affected by the large amount of traffic at the location of the stop.
The officers impounded the vehicle and took it to the police station. At the station, the dog sniffed around the car and also entered the front seat area where it alerted to a section of the dashboard. Based on the dog’s reaction, the officers removed the center portion of the dashboard and saw a brick wrapped in plastic like the plastic found in the trunk. Upon further investigation, the officers located 15 bricks that they suspected were methamphetamine.
Each brick weighed from 436 grams to 442 grams, which is slightly less than one pound each. The total weight of the bricks, without packaging material, was 6.599 kilograms. A criminalist employed by the Kern County Regional Crime Lab tested the bricks. She performed a series of color screening tests followed by microcrystalline tests and an instrumental analysis. The instrumental analysis involved running a sample through a gas chromatograph/mass spectrometer. Based on the tests performed, the criminalist concluded that the bricks were methamphetamine.
DISCUSSION
I. Motion to Suppress
A. Standard of Review
When a trial court rules on a motion to suppress, it considers and resolves three questions: (1) What are the historical facts? (2) What is the applicable rule of law? (3) When the rule of law is applied to the historical facts, was there a violation of law that justifies suppression of the evidence? (People v. Ayala (2000) 23 Cal.4th 225, 255.) Appellate courts review the trial court’s resolution of the first inquiry, which involves questions of fact, under the deferential substantial evidence standard. (Ibid.) In contrast, the standard of independent review is used by appellate courts scrutinizing the trial court’s decision on the second inquiry, which is a pure question of law, and the third inquiry, which is a mixed question of fact and law but predominantly one of law. (People v. Ayala, supra, at p. 255.)
B. Defendant’s Claims of Error
Defendant contends that there are two reasons why his motion to suppress should have been granted.
First, he contends, there was insufficient cause to detain or hold him and therefore the officers were required by law to release him at the scene of the traffic stop. (See Brendlin v. California (2007) 551 U.S. 249 [traffic stop subjects passengers of vehicle to Fourth Amendment seizure].) Defendant asserts that when the officers placed him in the patrol car they violated his constitutional rights, triggering a duty for the trial court to suppress the evidence subsequently discovered.
Second, defendant contends, the warrantless search was excessive in scope because the traffic stop did not justify a search behind the dashboard. Further, he contends, the search using a dog and the partial dismantling of the car cannot be justified as part of a search incident to arrest or as part of an inventory search.
C. Causal Link Between Defendant’s Detention and Discovery of Drugs
In People v. Brendlin (2008) 45 Cal.4th 262, the California Supreme Court stated that the exclusion of evidence is not justified by the mere fact that the constitutional violation was a but-for cause of obtaining the evidence in question. (Id. at p. 268.) In other words, something more than but-for causation is required to suppress evidence. Therefore, when there is no but-for causal link between the alleged constitutional violation and the discovery of the evidence, the evidence obtained need not be suppressed.
In this case, it appears that the trial court found the allegedly illegal detention of defendant was not a but-for cause of the search of Avila’s car that led to the discovery of the bricks of methamphetamine. We conclude the trial court’s implied finding of fact regarding causation is supported by substantial evidence.
The record shows that the car was searched because Avila was arrested for a traffic violation and because the vehicle was suspected of being involved in moving drugs. The record shows no connection between the way officers treated defendant after the traffic stop—that is, his detention—and the search of the car. In other words, the car would have been searched and the drugs would have been found even had the officers told defendant he was free to leave immediately after they stopped the car. Thus, it cannot be said that the officers obtained the evidence by exploiting an illegality in the detention of defendant. (People v. Brendlin, 45 Cal.4th at p. 270.) As a result, the methamphetamine and other evidence obtained from the car are not “fruit of the poisonous tree” of the allegedly illegal detention of defendant.
D. Was the Scope of the Search Excessive?
Defendant argues that the car search was excessive in scope because no adequate cause was shown for searching for a hidden compartment behind the dashboard.
The People argue, among other things, that the search was justified as an inventory search of a lawfully impounded vehicle and because the police had probable cause to suspect that there was contraband hidden inside the vehicle.
1. Inventory search
If a car is lawfully impounded by the police, a warrantless inventory search of the vehicle pursuant to a standardized procedure is a constitutionally reasonable search. (South Dakota v. Opperman (1976) 428 U.S. 364, 372; see generally, 3 LaFave, Search and Seizure (4th ed. 2004) § 7.4(a), pp. 632-658 [inventory search of impounded vehicle].)
In this case, the inventory search (which, by definition, is the search done in accordance with a standardized procedure) did not include the use of a trained dog to sniff the inside of the vehicle or the removal of the dashboard.
At the hearing on the motion to suppress, Officer Eli Brown was asked if it was part of his department’s procedure for an inventory search to have a dog sniff for drugs. Officer Brown responded: “It’s not part of the procedure, but we can do that whenever we feel necessary.” Also at the hearing, the parties stipulated that “the removal of the dash was beyond the inventory search.”
In view of Officer Brown’s testimony and the stipulation, the use of the dog and the removal of the dashboard were beyond the scope of the inventory search. In other words, those components of the overall search were investigatory in nature and cannot be upheld under the inventory search exception to the probable cause requirement.
Based on the foregoing and our review of the transcript from the hearing on the motion to suppress, we do not consider the trial court’s statement that defense counsel took the position that “the inventory search is fine” as indicating that defense counsel conceded that the aspects of the search that went beyond a standard inventory search were constitutional. The trial court did not interpret defense counsel’s arguments in this manner and neither shall we.
2. Probable cause
The so-called automobile exception to the Fourth Amendment’s warrant requirement permits the warrantless search of a vehicle by police if there is probable cause to believe that the vehicle contains evidence of a crime, even though there are no exigent circumstances that preclude obtaining a search warrant. (Maryland v. Dyson (1999) 527 U.S. 465, 466-467; Michigan v. Thomas (1982) 458 U.S. 259 [exigent circumstances need not be present to justify warrantless investigatory search of vehicle in police custody].)
To apply this rule of law to the facts of this case, we will examine (1) whether the police officers had probable cause to use a trained dog to search Avila’s car and (2) whether they had probable cause to remove and search behind the dashboard. In applying the probable cause standard to the facts of each search, we note that warrantless searches are presumed unreasonable and the prosecution has the burden of proving a warrantless search was constitutional. (People v. Williams (1999) 20 Cal.4th 119, 128.)
a. Use of trained dog to search vehicle’s interior
The obvious reason that the police officers used a trained dog to sniff the interior of the car was the belief that drugs might be present in the vehicle. Therefore, we will examine whether the police had sufficient information about the presence of drugs to justify the use of the dog. Based on the following facts, we conclude that the police had probable cause to use a trained dog to perform an investigatory search of the interior of the car after they completed the inventory search.
Michael Hale, a detective assigned to the narcotics unit of the Bakersfield Police Department testified at the hearing on the motion to suppress. Hale testified that on February 15, 2008, he was working with members of the Southgate Police Department in their investigation of Nicholas Gaona. As the result of a wiretap, the Southgate Police Department had obtained information that Gaona was a courier of narcotics who moved large quantities and that he was to be transporting a large shipment to somewhere in Bakersfield. They followed Gaona to an address in Bakersfield. Gaona approached the location very slowly and was waved into a garage by two men who shut the garage after Gaona had entered it. The vehicle was not in the garage for very long before the garage door was opened and Gaona backed out and left. Later, a Nissan Altima left from the same garage. Detectives followed the Nissan and contacted patrol officers with instructions to watch for a traffic violation that would justify stopping the vehicle. The detectives shared with the patrol officers their suspicions about the possibility the vehicle was being used to transport drugs.
During the course of the traffic stop, officers learned that Avila did not have a driver’s license and arrested him. The inventory search of the Nissan revealed rolls of plastic wrap in the trunk as well as a dashboard that had not been replaced properly.
Based on the foregoing, the officers had probable cause to use the trained dog to perform an investigatory search of the Nissan.
b. Removal of the dashboard
The only additional piece of information available to the officers when they decided to remove the center portion of the dashboard was the fact that the dog had alerted to that portion of the dash when it was in the front seat area of the Nissan.
We conclude that the additional information obtained from the dog’s search of the vehicle, when considered with the information previously available to the officers, was sufficient to create probable cause that contraband was hidden behind the dash and justified the officers’ removal of the dash and a search of the area behind it.
In summary, we independently determine that the officers had probable cause for the investigatory search of the vehicle that they conducted after the completion of the inventory search. Therefore, the trial court correctly denied the motion to suppress.
II. Drug Quantity Enhancement as a Concurrent Term
A. Contentions of the Parties and Standard of Review
Defendant contends that trial courts have the discretion to impose the drug quantity enhancements in Health and Safety Code section 11370.4 as concurrent terms or as consecutive terms. He argues that the trial court thought it was required to impose the enhancement as a consecutive term and, therefore, this court should remand so that the trial court can exercise its discretion.
The Attorney General’s Office contends the trial court correctly interpreted and applied the statute. It contends the question is resolved by Penal Code section 1170.1, subdivision (d), which sets forth the general rule that enhancements are imposed as consecutive terms.
The contentions of the parties regarding the trial court’s discretion or mandatory duty present this court with an issue of statutory construction. It is well established that questions of statutory construction are pure matters of law upon which an appellate court exercises its independent judgment. (Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1546.)
B. Statutory Provisions
The statutory provisions relevant to the resolution of the issue presented by the parties are contained in Health and Safety Code section 11370.4 and Penal Code section 1170.1, subdivision (d).
Health and Safety Code section 11370.4, subdivision (b) provides that any person convicted of certain offenses involving methamphetamine “shall receive an additional term as follows: [¶] … [¶] (2) Where the substance exceeds four kilograms by weight, … the person shall receive an additional term of five years.” Subsequent provisions in section 11370.4 provide:
“(d) The additional terms provided in this section shall be in addition to any other punishment provided by law.
“(e) Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.”
Penal Code section 1170.1, subdivision (d) provides that “[w]hen the court imposes a prison sentence for a felony pursuant to [California’s Determinate Sentencing Law], the court shall also impose, in addition and consecutive to the offense of which the person has been convicted, the additional terms provided for any applicable enhancements.”
C. Analysis
We recognize that Health and Safety Code section 11370.4 uses the phrase “shall receive an additional term” and that some other enhancement statutes provide for “an additional and consecutive term.” (See Pen. Code, §§ 12022.5, subd. (b), 12022.53, subd. (c), italics added.) Nonetheless, Health and Safety Code section 11370.4’s description of the enhancement term as “additional, ” instead of “additional and consecutive, ” does not compel the conclusion that the trial court has the discretion to impose that enhancement as a concurrent term. Instead, any ambiguity concerning the imposition of the drug quantity enhancement as a concurrent term is resolved by the clear language of Penal Code section 1170.1, subdivision (d). That provision applies to “any applicable enhancements, ” and the drug quantity enhancement contained in Health and Safety Code section 11370.4 qualifies as an applicable enhancement. Therefore, the mandatory language of Penal Code section 1170.1, subdivision (d) requires trial courts to impose the additional term of the drug quantity enhancement as a consecutive term. (Cf. People v. Savedra (1993) 15 Cal.App.4th 738, 747-748 [trial court erred by imposing one-year enhancement for prior prison conviction concurrently].)
A number of courts have addressed the question of the trial court’s discretion under Health and Safety Code section 11370.4 by stating that the court only has the discretion to impose or strike the enhancement, and if the court chooses to strike the enhancement it must state its reasons as required by subdivision (e) of Health and Safety Code section 11370.4. (People v. Ruiz (1992) 3 Cal.App.4th 1251; People v. Vergara (1991) 230 Cal.App.3d 1564; People v. Cattaneo (1990) 217 Cal.App.3d 1577 [order staying enhancement illegal].) Our statutory interpretation comports with this view of the trial court’s discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., GOMES, J.