Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CR023155
RAYE, J.After his motion to suppress evidence pursuant to Penal Code section 1538.5 was denied, defendant Michael Setrack Saroian pled guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and admitted he had two prior convictions pursuant to Health and Safety Code section 11370.2, subd. (a). Sentenced to eight years in prison, he appeals. He contends the procedures used by the trial court in considering evidence relating to a confidential informant violated his constitutional rights. He also contends his motion to suppress evidence should have been granted. We shall modify defendant’s custody credits and otherwise affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
Sergeant David Martin of the Lassen County Narcotics Task Force was taking part in an investigation involving suspicious “short-term traffic” at defendant’s house. Such traffic is often an indication that narcotics are being sold at a residence, and Martin was aware that defendant was both a user and seller of methamphetamine. Several months into the investigation, a confidential informant told Martin that defendant was planning a trip to Crescent City to pick up a large quantity of methamphetamine. This confidential informant had previously provided information to Martin that had proved accurate. The confidential informant provided details of the upcoming trip, including with whom defendant would be traveling, the truck they would be driving (including the license plate number), and where and when they would be making the trip. The information was corroborated by “technological means.”
On January 3, 2006, while positioned to observe the reported trip, Martin saw defendant and the person with whom he was to be traveling returning to the Susanville area in the previously identified truck. In order to protect the informant’s identity by creating a “wall” between the narcotics officers and the stop of the truck, Martin contacted Lassen County Deputy Sheriff Donald Watson, described the truck and its location, and requested Watson make a traffic stop of the truck if he could establish probable cause. Martin and his partner, Agent Jeff Schwagerl, continued to follow the truck.
After Deputy Watson began following the truck, he paced the truck at 36 miles per hour in a 30-mile-per-hour zone. Agent Schwagerl also noted that the truck was traveling at 35 miles per hour in a 30-mile-per-hour zone. Watson initiated a traffic stop for speeding. The driver of the truck did not immediately yield. Instead, he slowed and traveled about another mile before pulling over. During that time, defendant was observed making furtive movements in the passenger seat.
Watson’s partner, Deputy Dave Woginrich, also stated that the truck appeared to be speeding, but he did not check the speedometer to verify the speed.
When Deputy Watson contacted the driver, he noticed signs that indicated the driver was under the influence of a controlled substance. After receiving the driver’s consent, Watson searched the truck and found in the center console a glass methamphetamine pipe with white residue. He also noticed a suspicious odor in the truck. At this point, Watson called for assistance from the narcotics task force. Martin and Schwagerl arrived and confirmed that the driver was under the influence of a controlled substance. After speaking with defendant, Schwagerl noticed signs indicating defendant was also under the influence and, after an evaluation, determined defendant was under the influence of a central nervous system stimulant. Both the driver and defendant were taken into custody. A canine unit was summoned because of the strong chemical odor emanating from the glove box.
A plastic bag containing methamphetamine fell out of defendant’s pants during booking at the jail. A subsequent search of defendant’s home uncovered a gun, 42 white pills, and pay-owe sheets. The confidential informant was not mentioned in the request for a search warrant for defendant’s house.
Defendant moved to suppress all the evidence uncovered by the officers on the ground that his detention and search had been illegal. In opposition, the prosecution responded that the stop was justified based on the speed of the truck and, as a separate justification, on the ground that the officers had a reasonable suspicion that the occupants were transporting methamphetamine. Once the truck was stopped, the officers had legal cause to detain and subsequently arrest defendant.
At the suppression hearing, the prosecution invoked its governmental privilege of nondisclosure of the informant’s identity under Evidence Code section 1040. All evidence and testimony having a tendency to reveal the informant’s identity, including the “technological means” by which the officers corroborated information provided, were taken in camera outside the presence of defendant and his attorney. At the conclusion of the hearing, the trial court denied defendant’s motion to suppress, finding the stop was supported by probable cause because the truck was speeding.
DISCUSSION
I. In Camera Hearing
Defendant contends the trial court’s use of the in camera hearing to consider evidence relating to the confidential informant violated his constitutional rights.
Pursuant to Evidence Code section 915, subdivision (b) and People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), the trial court heard, in camera, the testimony of Agent Schwagerl regarding information obtained from a confidential informant. Thereafter, the court determined the privilege asserted for nondisclosure of the confidential informant was well-founded. After hearing further evidence on the motion to suppress evidence, the trial court denied the motion.
In Hobbs, supra, 7 Cal.4th at page 959, the California Supreme Court held that where a defendant seeks to discover an informant’s identity in connection with a challenge to the legality of a search based on information furnished by the informant, the identity of the informant who has supplied probable cause for the issuance of a search warrant need not be disclosed where such disclosure is sought merely to aid in attacking probable cause. Hobbs articulated a procedure by which a trial court reviews in camera a defendant’s motion to quash and traverse a warrant when the identity of an informant and the substance of the information provided have been sealed to determine if sufficient grounds exist for maintaining the confidentiality of the informant’s identity and, if so, whether the extent of the sealing is necessary to avoid revealing the informant’s identity. The trial court then reviews the entire warrant (including the sealed portions) to determine whether probable cause exists. (Id. at pp. 971-975.) An appellate court, in turn, examines the same record in its review of the trial court’s ruling. (Id. at p. 975.)
Defendant did not move to quash and traverse a warrant. He acknowledges that the in camera review was analogous to the Hobbs procedures and does not contend the trial court’s actions failed to comport with Hobbs procedures. Rather, he contends the use of the procedures set forth in Hobbs violated his federal constitutional rights to due process, a fair trial, and effective assistance of counsel. The People reply that defendant has forfeited these constitutional claims because he did not raise them below. We agree with the People. (People v. Rudd (1998) 63 Cal.App.4th 620, 628; People v. Saunders (1993) 5 Cal.4th 580, 589-590; People v. Feagin (1995) 34 Cal.App.4th 1427, 1438.)
The procedure for in camera review of confidential informant information claimed to be privileged is also set forth in Evidence Code section 915, subdivision (b).
We consider defendant’s challenge only as it is directed to the legality of the search, as any challenge to the trial court’s decision not to disclose the identity of the informant as it relates to defendant’s guilt has been waived by his guilty plea. (Hobbs, supra, 7 Cal.4th at pp. 955-957.)
Defendant asserts that it would have been futile for him to object to the procedures sanctioned by our Supreme Court in Hobbs, supra, 7 Cal.4th 948 as the trial court could not have refused to follow them (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). He also asserts, inconsistently, that this court can consider his constitutional claims notwithstanding Hobbs. These contentions are meritless. Trial counsel could have raised the claims to preserve the issues for ultimate federal review even though the trial court and this court are bound by Hobbs. And it is an elementary principle in our jurisprudence that a Court of Appeal is not at liberty to review the decisions of the Supreme Court. (Auto Equity Sales, at p. 455.) As we are bound by Hobbs, we reject his claims.
II. Legality of the Stop
Defendant also contends that the unsealed portion of the record does not support a finding of probable cause to stop the truck. Thus, he claims, the trial court erred in denying his motion to suppress evidence. We disagree.
Deputy Watson testified that the truck in which defendant was riding was traveling at 36 miles per hour in a 30-mile-per-hour zone. This testimony was corroborated by Agent Schwagerl, who testified that the truck was traveling at 35 miles per hour in a 30-mile-per-hour zone. This conduct violated Vehicle Code section 22350, the basic speed law, and justified the stop.
Defendant argues that Deputy Watson’s testimony must be discarded as untrustworthy because he “was effectively impeached by his untruthful testimony at the preliminary hearing.” He does not delineate precisely how Deputy Watson’s testimony was “patently untruthful, ” and upon reviewing the portions of the record cited by defendant, we fail to understand how he was allegedly impeached. In any event, in a proceeding under section 1538.5 to suppress evidence, “the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court.” (People v. Lawler (1973) 9 Cal.3d 156, 160.) Here, the trial court expressly stated on the record that it found Deputy Watson’s testimony regarding the speed of the truck, corroborated by Agent Schwagerl, to be credible. We must accept that resolution. (People v. Sutton (1976) 65 Cal.App.3d 341, 346-347.) Thus, defendant’s motion to suppress, based on the allegedly illegal nature of the stop, was properly denied.
Finally, defendant asks us to review the sealed transcript of the in camera hearing held pursuant to Evidence Code section 915, subdivision (b) and Hobbs, supra, 7 Cal.4th 948 to determine whether the court properly denied his motion to suppress evidence. As the unsealed portion of the record supports the trial court’s ruling, because Deputy Watson had probable cause to stop the truck for a traffic offense, our independent review of the sealed record is unnecessary. Nonetheless, we have reviewed the sealed materials and find no error. Even if the truck had not been speeding, law enforcement had probable cause to stop the truck for suspicion of transportation of methamphetamine.
III. Custody Credits
We deem defendant to have raised the issue whether amendments to section 4019, effective January 25, 2010, which increased the rate at which prisoners earn presentence conduct credits, apply retroactively to his pending appeal and entitle him to additional conduct credits. (Misc. Order No. 2010-002.) We conclude that the amendments apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply “to acts committed before its passage provided the judgment convicting the defendant of the act is not final”]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying the rule of Estrada to an amendment involving conduct credits].)
The California Supreme Court has granted review to resolve a split in authority over whether the January 2010 amendments to section 4019 apply to pending appeals. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [giving retroactive effect to amendments]; accord, People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; contra, People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Rodriguez (2010) 182 Cal.App.4th 535, review granted June 9, 2010, S181808.)
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Sen. Bill No. 76) (see Stats. 2010, ch. 476), which amended section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Sen. Bill No. 76, § 1; § 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 3X 18 (2009-2010 3d Ex. Sess.) (Senate Bill No. 3X 18) (see Stats. 2009, ch. 28, § 50), when the person served an odd number of days in presentence custody. It also eliminates the directive in section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; § 4019, subd. (g).)
The amendment effective September 28, 2010, which now supersedes the amendments effective January 25, 2010, does not state it is to be applied prospectively only. Consequently, for the reasons we concluded the amendments increasing the rate of earning presentence conduct credit, effective January 25, 2010, applied retroactively to defendants sentenced prior to that date, we similarly conclude the rate now provided in section 2933 applies retroactively to all appeals pending as of September 28, 2010.
Senate Bill No. 76 also amends section 4019 to reduce the number of presentence conduct credits earned by qualifying prisoners. With the enactment of Senate Bill No. 76, the calculation of such credits is now based on the rate that existed prior to Senate Bill No. 3X 18, which increased the rate. (Sen. Bill No. 76, § 2; § 4019, subds. (b), (c), (f).) However, this amendment applies prospectively only, i.e., only to sentences imposed on or after September 28, 2010. (§ 4019, subd. (g).)
Defendant is not among the prisoners excepted from the additional accrual of credit. (§ 2933, subd. (e)(3).) Because defendant had 235 days of actual custody, we thus modify the judgment to reflect that defendant has 235 days of conduct credits, not 234.
DISPOSITION
The judgment is modified to award defendant 235 days of conduct credit for a total of 470 days of custody credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy thereof to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P. J. NICHOLSON, J.