People v. Anderson

Full title: THE PEOPLE, Plaintiff and Respondent, v. BRUCE LEE ANDERSON, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Aug 4, 2011

No. F059205 (Cal. Ct. App. Aug. 4, 2011)

Opinion

F059205 Kern Sup. Ct. No. BF128396A

08-04-2011

THE PEOPLE, Plaintiff and Respondent, v. BRUCE LEE ANDERSON, Defendant and Appellant.

Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Leslie W. Westmoreland, and Sarah Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.

Poochigian

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.

Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Leslie W. Westmoreland, and Sarah Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant/defendant Bruce Lee Anderson was charged and convicted of count I, possession of methamphetamine for sale (Health & Saf. Code, § 11378) and count II, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).

The methamphetamine was discovered when Kern County Sheriff's Deputy Shotwell arrived at a residential property where a probationer lived. A trailer was parked next to the probationer's house, and Shotwell located defendant and three other people in the trailer; the probationer was not present. Shotwell served a valid arrest warrant on defendant, placed him in handcuffs, and escorted defendant and the other three people out of the trailer. Defendant was not advised of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Defendant had $580 in his pocket. Shotwell then reentered the trailer and conducted a warrantless search. Shotwell found large quantities of methamphetamine, some of which was packaged for sale. He also found a bag of cutting agent, syringes, and scales. Shotwell returned outside, displayed the bags of methamphetamine to defendant and the other three people, and asked the group who the drugs belonged to. No one responded. Shotwell added that he would have to arrest everyone if no one claimed the drugs. Defendant said he would claim the drugs since he was staying in the trailer. Shotwell then advised defendant of the Miranda warnings, told defendant that he found evidence of sales in the trailer, and again asked if the drugs belonged to him. Defendant again said, "yes."

Defendant filed a pretrial motion to suppress evidence (Pen. Code,¹ § 1538.5) and argued the warrantless search of the trailer violated his constitutional rights. The court conducted a pretrial evidentiary hearing, denied the motion, and found the other three people in the trailer were on probation and the contraband would have inevitably been discovered.

1 All further statutory citations are to the Penal Code unless otherwise indicated.

Defendant then filed a separate motion to exclude his confession that the drugs belonged to him and argued his statements were involuntary, elicited during an illegal custodian interrogation in the absence of the Miranda advisements, and the result of coercive questioning. The court conducted a pretrial evidentiary hearing (Evid. Code, § 402) and denied the motion. The court found that while defendant should have initially been advised of the Miranda warnings, the deputy's pre-Miranda questions and statements were not coercive or threatening, and defendant's post-Miranda confession was voluntary and admissible pursuant to Oregon v. Elstad (1985) 470 U.S. 298 (Elstad).)²

2 As we will explain, post, Elstad held that a suspect who responds "to unwarned yet uncoercive questioning" may later waive his rights and confess after being "given the requisite Miranda warnings." (Elstad, supra, 470 U.S. at p. 318.)

Thereafter, defendant's jury trial was held, and Shotwell testified about additional facts regarding both the search and interrogation. Defendant was convicted of both counts, and he was sentenced to two years in prison.

On appeal, defendant contends the court should have granted his motion to suppress the contraband seized from the trailer because the deputy did not have a search warrant, the search exceeded the limits of a search incident to an arrest, and the search was not valid based on the probation search conditions of the other three people. Defendant also argues the court should have granted his motion to exclude his confession because it was involuntary, the product of coercive interview techniques, and Shotwell engaged in the prohibited practice of questioning first and advising later, in violation of Missouri v. Seibert (2004) 542 U.S. 600 (Seibert).

As a separate matter, defendant contends his defense attorney was prejudicially ineffective when he conducted the separate pretrial evidentiary hearings on his motions to suppress the narcotics and exclude his confession. Defendant asserts there were facts developed throughout the entirety of the record—including the preliminary hearing, the two pretrial evidentiary hearings, and the jury trial—that defense counsel failed to elicit from Deputy Shotwell at the separate evidentiary hearings which would have supported his arguments that the trailer was illegally searched and his confession was involuntary.

Defendant also raises evidentiary and instructional issues, and contends the court should have granted his motion for return of the cash seized from him when he was arrested. We will reverse count II and otherwise affirm.

FACTS

I. DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

At the pretrial suppression hearing, the parties stipulated that a valid arrest warrant for defendant was issued on June 5, 2009, defendant was arrested and the trailer was searched on June 6, 2009, and defendant had a reasonable expectation of privacy in the trailer. Deputy Shotwell was the only witness and testified that on June 6, 2009, he went to an address on Lake Isabella Boulevard in Kern County to conduct a probation search of Laura Lynn Reiss who lived on the property.³ Shotwell knew Reiss was on active probation and subject to a search condition for drugs and narcotics paraphernalia. Shotwell testified he also went to the property to attempt to locate defendant.⁴

3 At the evidentiary hearing on the suppression motion, Shotwell was not asked and did not testify as to the exact time that he arrived on the property to conduct the probation search and serve the arrest warrant. At the preliminary hearing, however, he had testified that he arrived on Reiss's property at 1:42 a.m.

4 At the evidentiary hearing on the suppression motion, Shotwell was not asked and he did not explain why he thought defendant might be on Ms. Reiss's property. As we will explain, post, such evidence was not elicited until the jury trial.

Deputy Shotwell testified he had previously been to Reiss's property and knew there was a house and detached trailer there. He knew that Reiss lived in the house and not in the trailer. The trailer was not connected to the house, and it was about 25 feet away from the residence.

Shotwell testified he had never seen Reiss in the trailer. Shotwell also testified without contradiction that Reiss had previously told him, regarding the trailer, that "everything there is hers that she has control over."

Deputy Shotwell testified that when he arrived on the property, he saw a light on in the back of the trailer and also heard people laughing and talking from that location. Shotwell heard one voice in the trailer say the name "Bruce," which was defendant's first name. Shotwell heard another voice in the trailer respond, he recognized that voice as defendant from their prior encounters, and he was confident that defendant was in the trailer. He did not hear Reiss's voice inside the trailer.

Deputy Shotwell testified he approached the trailer and he said something like " 'Hey, you guys,' or something and they said 'Who is it' and then I knocked on the door and I heard [defendant] tell somebody to lock the door." Shotwell announced, " 'Sheriff's department,' " called out defendant's name, and said defendant had a felony warrant. Shotwell heard defendant's voice respond, " 'I don't have a warrant.' " Shotwell said to open the door but no one did.

Deputy Shotwell testified he opened the door and went inside the trailer. Defendant was inside the trailer with Shelly Reinhart, David Watkins and Wayne Sparks. Reiss was not present.

Shotwell arrested defendant inside the trailer on the felony arrest warrant. Shotwell searched defendant's body incident to that arrest and recovered cash. Deputy Shotwell testified that defendant was sitting on a bed when he entered the trailer. Shotwell saw a little pouch that was "right next" to defendant on the bed. The pouch was "[a]t the most," one foot away from defendant. Shotwell testified that a plastic bag was sticking out of the pouch, and he could see additional baggies inside that bag. He did not see any contraband at that time. Shotwell seized the pouch and opened it, and found baggies of suspected methamphetamine.⁵

5 As we will explain, at the subsequent evidentiary hearing on defendant's motion to exclude his confession, Shotwell testified that he did not search the pouch and the trailer until he had arrested defendant, placed him in handcuffs, and escorted defendant and the other three people out of the trailer, and they remained outside when he went back into the trailer to search it.

Shotwell testified his partner checked with dispatch and determined that the other occupants of the trailer—Reinhart, Watkins, and Sparks—were on probation and subject to search conditions for narcotics and paraphernalia.⁶ Shotwell testified that after he confirmed the existence of the search conditions, he searched the trailer for additional narcotics and paraphernalia, in the areas where the three probationers had been located in the trailer. Shotwell found additional methamphetamine, scales, pipes, and syringes in the "vicinity" of where Reinhart and Sparks had been. There was a jewelry box under the seat where Reinhart was sitting, and it contained two scales and syringes. Another scale was inside a drawer, next to the stove, near Sparks's location.

6 At the subsequent evidentiary hearing on defendant's motion to exclude, Shotwell testified he was not sure when he and his partner learned that the other three people were on probation and subject to search conditions.

Shotwell testified that he later found Reiss in the house and determined she had been asleep when he searched the trailer.⁷

7 During the suppression hearing, defense counsel sought to introduce evidence as to the circumstances surrounding defendant's confession that the narcotics and contraband found in the trailer belonged to him. Defense counsel argued defendant's statements were inadmissible as the fruits of the illegal warrantless search. The court excluded any evidence as to the nature and circumstances of defendant's admission, declined to address whether defendant's admission was involuntary, and instructed defense counsel to raise the issue at trial.

The court's ruling

Defendant sought to suppress the narcotics and contraband found in the trailer and argued the warrantless search was illegal. Defendant argued he had a reasonable expectation of privacy in the trailer and all the contraband should be suppressed. Defendant's motion also sought to suppress his confession to Deputy Shotwell as the fruit of the illegal warrantless search.

The court noted that even if defendant had a reasonable expectation of privacy in the trailer, the officers had the right to enter the property and arrest him pursuant to the valid arrest warrant, provided they complied with knock/notice requirements before entering the trailer. The court also noted the deputy could search defendant's person incident to that lawful arrest. However, the court acknowledged the disputed issue was the nature and extent of the search inside the trailer.

The prosecutor clarified that defendant was being charged with possession and possession for sale solely based on the narcotics found in the brown leather pouch. The prosecutor stated the narcotics and paraphernalia found next to Reinhart, Watkins, and Sparks were not part of defendant's case.

The court found there was a valid arrest warrant for defendant, Deputy Shotwell properly went to a location where he thought he could find defendant, Shotwell complied with knock/notice requirements, properly entered the trailer, and arrested defendant. The court found that while Shotwell saw plastic bags sticking out of the pouch, the prosecution failed to introduce any evidence about Shotwell's expertise and why he thought there might be narcotics inside the pouch. The court held that even though the pouch and the plastic bags were in plain view, that fact did not mean that he could open and search the pouch.

The court noted that the cash recovered from defendant's person was properly found during a search incident to defendant's arrest. However, the court held that Shotwell could not have searched the brown leather pouch as a search incident to defendant's arrest, based on the limitations for searches incident to arrests set forth in Arizona v. Gant (2009) 556 U.S. 332 (Gant). While the leather pouch was found within one foot of where defendant had been sitting on the bed, the court held there was no evidence about defendant's exact location when the arrest warrant was served, whether he was in handcuffs when the pouch was searched, and where he was during the search of the pouch.

However, the court denied defendant's motion to suppress and held the brown leather pouch would have been inevitably searched and the drugs discovery based on the presence of the three other people in the trailer who were on probation and subject to search conditions:

"If [Shotwell] says it's incident to arrest, you haven't made the foundation incident to arrest. The fact it was in plain view doesn't mean anything. But you have three people ... in there that are subject to search. They are there. The pouch would have been searched inevitably so it's inevitable discovery. So it would have been searched. If the officer hadn't searched it based on him arresting the defendant, it would have been searched anyway because of the probation search on the three other folks ... that were in there."

II. DEFENDANT'S MOTION TO EXCLUDE HIS PRETRIAL CONFESSION

After the court denied his motion to suppress, defendant filed a pretrial motion to exclude the confession he made to Deputy Shotwell after he was arrested on the felony warrant, when he admitted the methamphetamine found in the trailer belonged to him. On the first day of the trial, the court conducted an evidentiary hearing on defendant's motion to exclude. Deputy Shotwell was again the only witness, and the following facts were elicited which had not been addressed at the pretrial suppression motions.

Arrest

Deputy Shotwell testified that he arrived at the Lake Isabella property at 1:40 a.m. Shotwell testified he contacted defendant and three other people inside the trailer. When Shotwell entered the trailer, someone was standing at the door and defendant was sitting on the bed. Shotwell immediately advised defendant that he was going to be arrested for an outstanding felony arrest warrant. Defendant said he did not have a felony warrant. Defendant stood up from the bed and Shotwell handcuffed defendant's hands behind his back. Shotwell directed defendant to walk outside the trailer and defendant complied.

Deputy Shotwell testified that he escorted defendant and the other three people out of the trailer. Deputy Cabral, Shotwell's partner, stayed outside the trailer with defendant and the others.

Search

Deputy Shotwell testified he went back into the trailer and searched it while defendant and other three people waited outside with Deputy Cabral.⁸ Shotwell testified he found a brown leather pouch where defendant had been sitting. He opened the pouch and found a large plastic bag which contained 17 smaller plastic bags with a substance consistent with methamphetamine. He found another bag of methamphetamine, about a foot and a half away, in between a mattress and a divider wall. Shotwell also found scales and a bag of what appeared to be MSM, a while crystalline substance used to cut or dilute methamphetamine.

8 Shotwell did not testify to this fact at the pretrial suppression hearing.

Shotwell walked out of the trailer and stood at the entrance. Deputy Cabral was outside with defendant and the other three people. Defendant was still in handcuffs, and he was sitting down with the other three people, about eight feet away from Shotwell.

Shotwell could not remember if the other people were in handcuffs at that time. Shotwell believed Deputy Cabral handcuffed the other three people at some point, but Shotwell was not sure when that happened. Shotwell believed that he and his partner learned there was an arrest warrant for one of the occupants of the trailer, Wayne Sparks, but he was not sure when he learned that information.

Deputy Shotwell testified that he stood at the trailer door and showed defendant and the other three people the bags of methamphetamine and the MSM cutting agent. Shotwell testified he asked either defendant or the entire group to explain what the MSM was, but no one replied. Shotwell testified that he then asked defendant and the other three people, "[W]hose dope-drugs" was inside the house and nobody answered up, so I said I'm gonna have to arrest everybody" or "I'm going to have to take everybody in" if "nobody wants to claim it."

During the evidentiary hearing, the court asked Shotwell to explain why he phrased his question in that particular manner. Shotwell testified he was not going to actually arrest "all of them," and the man who had been standing at the trailer's door had an outstanding warrant and "[h]e was going to go to jail anyways."

"But I even told them that he wouldn't be going, but between [defendant], Mr. Sparks, and Miss Rinehart [sic]-she was across from [defendant], so I think I actually told them no, that I would have to arrest him-or her also. I corrected myself and said okay, well, Mr. Sparks and [defendant], I think I'm going to have to arrest both you guys.
"I told them that because I didn't know if-I knew one baggie was next to [defendant] and I was going to take him definitely for that, but I wasn't sure if the other baggie was Wayne Sparks' because it was close to him. It was in between both of them. So I was trying to figure out whose it was ...."

Shotwell testified that defendant then said, "[W]ell, it's where I reside, I'll claim everything found inside."

Shotwell testified that immediately after defendant made this admission, within 15 to 20 seconds, he advised defendant of the Miranda warnings. Defendant said he understood his rights and agreed to answer questions.

After he gave the Miranda warnings, Shotwell again asked defendant "whose dope" or "whose stuff was inside the trailer. Shotwell showed defendant the bag of methamphetamine, and told defendant that he found needles, scales, and "everything" for a sales case. Defendant replied that "it's where live, I'll claim everything."

Shotwell testified he arrested defendant on the felony warrant, and also for possession and possession for sale of methamphetamine. The court's ruling

Defendant argued he was improperly subject to custodial interrogation in the absence of Miranda warnings because he was arrested and in handcuffs when Shotwell showed him the bags of methamphetamine and asked if they belonged to him. Defendant argued his confession was involuntary because Shotwell engaged in coercive and threatening interview techniques, when he said that he would arrest everyone if no one claimed ownership of the narcotics. Defendant further argued that his post-Miranda confession was inadmissible since it was tainted by Shotwell's prior coercive threat.

The court stated that defendant was subject to custodial interrogation and should have been advised of the Miranda warnings when Shotwell initially asked about who owned the drugs. The court noted, that based on Elstad, a suspect who had responded to unwarned and uncoerced questions was not disabled from subsequently waiving his rights and confessing after being given the requisite Miranda warnings.

The court said the disputed question was whether defendant's initial pre-Miranda admission was voluntary, or whether it was elicited as a result of psychological or mental coercion, since defendant made the statements after Shotwell said, "I'm going to take all of you into custody if there's no admission."

The prosecutor conceded that the three other people might have been subject to some mental coercion, and Shotwell's statement and question was "[c]ertainly" coercive to them, but they were not before the court. The prosecutor argued that defendant was not subject to any coercion because he was already lawfully arrested on the outstanding felony warrant, he knew he was going into custody, and he figured "I might as well pony up, admit it's mine, help my friends out."

Defense counsel argued that defendant's possible mind frame was irrelevant to whether he was subject to coercion. Defense counsel argued that Shotwell effectively told defendant and the other three people that if "none of you confesses, I'm going to take you in." Counsel asserted Shotwell's words were not a request, but a coercive threat and implied promise of leniency, because if someone took responsibility for the drugs then the others would go free. Even though defendant knew he was going to jail, Shotwell's words were still threats because his other friends would go to jail if he did not claim ownership of the drugs. Shotwell never retracted his words or told them to forget about it. Counsel argued Shotwell's subsequent advisement of the Miranda warnings to defendant did not negate the prior coercion.

The prosecutor replied that there was no evidence that Shotwell's initial statement and question was directed at defendant, Shotwell testified he asked all four people about the drugs, no one answered, and then he said that he was going to arrest everyone if no one claimed the drugs. The prosecutor argued Shotwell's statement was not coercive to defendant because he was already in handcuffs and knew he was going into custody. The prosecutor added that he would not be making the same argument "if no one was in handcuffs."

The court denied defendant's motion to exclude his pretrial admissions, and found that defendant was not subject to coercive interrogation and his initial admission was not involuntary:

"I find that [defendant's] ability, based on the totality of the circumstances, to reason, comprehend, or resist were not so disabled that he was incapable of free or rational choice when he made the admission outside the trailer. So I find there's no deliberately coercive or improper tactic in obtaining the initial statement.
"There was an unwarned admission, so what he initially said doesn't come in. That does not warrant, however, a presumption of compulsion, and subsequent administration of a Miranda warning, which I find was done here adequately, where there was a prior voluntary, but unwarned statement, does not remove—or does not result in a precluded admission that he made outside the trailer."

III. TRIAL EVIDENCE

We now turn to the evidence adduced at defendant's jury trial. Deputy Shotwell was again the only witness who testified about the search of the trailer and defendant's pretrial admissions.

Deputy Shotwell testified that at 1:42 a.m. on June 9, 2009, he went to a property on Lake Isabella Road in Kern County to conduct a probation search.⁹ Shotwell had been to the property on previous occasions and knew the owner was subject to search terms for narcotics and narcotics-related paraphernalia.

9 Based on the entirety of the record, it appears that Shotwell erroneously testified the arrest and search occurred on June 9, 2009. At the suppression hearing, the parties stipulated the incident occurred on June 6, 2009. In any event, the precise date of the search and interrogation is inconsequential since the parties also stipulated that defendant was arrested on a valid arrest warrant issued on June 5, 2009.

Shotwell testified he also went to the Lake Isabella Road property to serve an arrest warrant on defendant. Based on prior contacts with defendant, Shotwell knew defendant lived at a residence on Harrington Avenue in Bodfish. However, Shotwell also knew that two people were staying at the Harrington Avenue residence and defendant was staying at a trailer on the Lake Isabella Road property.¹⁰

10 Shotwell's trial testimony was the first time he explained why he went to the Lake Isabella Road property to serve the arrest warrant on defendant.

Shotwell testified there was a small dirt road which led from Lake Isabella Road to a residence that was set back from the main road. The dirt road led to the residence's front door, a garage, and one of several trailers which were parked on the property. He knew the trailer adjacent to the dirt road did not belong to defendant.

Shotwell testified he walked on the dirt road and headed to the house. As he passed the trailer, he heard voices from inside and heard one person use the name "Bruce." He heard a voice respond to the name, and recognized defendant's voice. The trailer door "cracked open," someone tried to close it, and Shotwell opened the door because he knew defendant was inside.

Shotwell testified the trailer was about 18 feet long, and 8 to 10 feet wide. Shotwell entered the trailer and encountered defendant and three other people: Sparks, Watkins, and Reinhart. Watkins was standing at the door. Defendant was sitting on a bed located in the rear right corner of the trailer, about 12 feet away from the door. The bed was adjacent to a three-foot high divider wall. Sparks was sitting at a table located on the other side of the divider half-wall.¹¹ Reinhart was sitting on another bed, located directly across from the bed where defendant was sitting.

11 At the preliminary hearing, Shotwell testified it was possible for the man sitting on the other side of the divider wall to reach over to defendant's side.

Shotwell arrested defendant on the arrest warrant. Shotwell asked defendant to stand up and place his hands behind his back. Defendant questioned the warrant but he complied with Shotwell's orders and he was placed in handcuffs. When defendant stood up from the bed, Shotwell saw a brown leather pouch on the bed, next to defendant's left buttocks.¹² A plastic baggie was sticking out of the leather pouch. Shotwell searched defendant and found $580 in his pants pocket, in denominations of $10, $20, $50, and $100 bills. He did not search the brown leather pouch at that time.

12 On cross-examination, Shotwell conceded his report about the incident failed to state that he saw the brown leather pouch next to defendant's left buttocks, and he did not testify to that information at the preliminary hearing.

Shotwell escorted defendant and the other three people out of the trailer. Deputy Cabral led them outside and had them sit down. Defendant remained in handcuffs. Shotwell testified that at some point, the deputies learned that two of the other three people had misdemeanor warrants, and Deputy Cabral placed one of them in handcuffs. Shotwell also learned that the other three people were on probation and subject to search conditions. Defendant was not on probation.

Shotwell testified he went back into the trailer and searched it while Deputy Cabral stayed outside with defendant and the other three people. Shotwell opened the brown leather pouch and found a large plastic bag which contained 17 bindles of methamphetamine, packaged in knotted plastic baggies. Each bindle was about the size of one dime and weighed between 0.25 grams to 0.50 grams. Shotwell did not see the methamphetamine until he opened the leather pouch. The total weight of the methamphetamine bindles was 17.7 grams.

Shotwell testified he found a second bag of methamphetamine in the trailer. He discovered it when he noticed part of a plastic bag sticking up in the area between the divider wall and the bed where defendant had been sitting. He pulled out the bag and it contained 18.8 grams of methamphetamine.

Shotwell also found the cutting agent MSM in a brown wooden box located in the trailer's bathroom. In a nightstand drawer, he found a bag which contained a syringe, a pipe, and empty baggies. He found another pipe under the sink. There was a jewelry box under the second bed where Reinhart had been sitting. The box contained a syringe, a pipe, two scales, and empty baggies. Both scales contained powdery residue.

Shotwell testified that after he searched the trailer, he went to the trailer's door, stood on the steps, looked outside, and showed the bags of methamphetamine and MSM to defendant and the other three people. Shotwell did not give defendant the Miranda advisements at that time. However, he asked defendant and the others, "whose is this[?]" No one answered. Shotwell told the group that "if nobody wanted to claim it, it would be on everybody." Defendant said he would claim anything Shotwell found in the trailer "because it's where he resides." Defendant said he resided in the trailer.

On cross-examination, Shotwell conceded his report failed to state that prior to giving the Miranda warnings, he told the group that if nobody claimed responsibility for the drugs then it would be on everybody.¹³ Shotwell explained he did not think it was an important fact since it occurred prior to giving the Miranda warnings. Defense counsel asked Shotwell if he considered that question a threat. Shotwell replied that it was not a threat, and he was "trying to investigate to make sure anybody else doesn't have anything in there that's theirs."

13 We note that while the court found defendant's post-Miranda confession was voluntary and admissible, it specifically excluded any evidence about defendant's preMiranda confession because he should have been advised of the Miranda warnings. Nevertheless, defense counsel extensively cross-examined Shotwell about both the pre-and post-Miranda confessions, and why he asked defendant those particular questions.

Defense counsel asked Shotwell whether he asked that question as an investigation strategy or tactic he learned in the academy. Shotwell said he didn't recall, and he was "just trying to figure out if it was [defendant] by himself or if there was other stuff in there for other people." Defense counsel asked Shotwell if he asked that question because in his "training and experience you've learned how to get people to talk, to open up." Shotwell testified it was not something he was taught and he was just trying to find out the truth.

Shotwell testified that after defendant made the confession, he advised defendant of the Miranda warnings while defendant was still in the presence of Deputy Cabral and the other three people. Defendant then made the same confession, that he would claim everything found inside the trailer because that was where he resided. Shotwell never escorted defendant to another area to privately question him, or had Cabral advise defendant of the Miranda warnings and interview him.

Shotwell testified that he subsequently completed paperwork about defendant's arrest, which identified the Harrington Avenue address as defendant's residence. Shotwell testified that he knew the Harrington Avenue address was defendant's house based on Shotwell's prior contacts with defendant, and that defendant received his mail at that address. Shotwell testified that the woman who lived in the Lake Isabella Road residence said she had been allowing defendant to stay at the trailer, and defendant also said he was staying there.

On cross-examination, Shotwell testified that he did not find any mail, personal items, or clothing in the trailer that might have belonged to defendant. However, he found a shelf of law books and asked defendant why he had so many of them. Defendant said they "were his criminal books from ... prior cases ... when he was trying to fight cases with other deputies."

Shotwell testified to his opinion that the methamphetamine found in the trailer was possessed for purposes of sale, based on the nearly uniform size and weight of the 17 bindles of methamphetamine, the presence of the MSM cutting agent, the scales, and the large amount of cash found on defendant. The bindles were between a quarter and a half-gram, and would sell for $20 to $25 each.

Shotwell testified that two of the other three people had misdemeanor warrants; one person was taken to jail and the other person was cited and released.

DISCUSSION

I. Ineffective assistance/pretrial suppression hearings

On appeal, defendant contends that the court should have granted both of his pretrial motions-to suppress the evidence seized during the warrantless search of the trailer, and to exclude his pretrial confessions because they were allegedly obtained in violation of Miranda and the product of involuntary and coercive interview techniques. In making these separate arguments, defendant relies on the evidence adduced throughout the entirety of the criminal proceedings in this case-the preliminary hearing, the pretrial hearing on his motion to suppress evidence, the pretrial hearing on his motion to exclude his admission, and additional evidence introduced at his jury trial.

The People object to defendant's reliance on facts beyond those that were before the court during the two specific pretrial hearings. The People argue that this court must only review the specific facts introduced at each hearing to determine whether his pretrial motions should have been denied.

The People are correct that on appeal, the pretrial evidentiary motions to suppress and exclude evidence "must be reviewed on the record as it existed when the court decided the motion." (People v. Torres (2010) 188 Cal.App.4th 775, 780; see, e.g., People v. Hernandez (2008) 45 Cal.4th 295, 301.) However, defendant contends that this court may review the entirety of the record based on his additional appellate argument that defense counsel was prejudicially ineffective for failing to introduce certain relevant evidence at both pretrial hearings, and counsel's failure to introduce the evidence was prejudicial because such evidence would have compelled the court to suppress the contraband and exclude his confession.

"To establish ineffective assistance, defendant bears the burden of showing, first, that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel's error, it is reasonably probable that the verdict would have been more favorable to him. [Citations.]" (People v. Hawkins (1995) 10 Cal.4th 920, 940, overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110 and People v. Blakeley (2000) 23 Cal.4th 82, 89.)

A defense attorney's failure to call certain witnesses and present evidence are the types of decisions that are peculiarly a matter of trial tactics, unless the decision results from the unreasonable failure to investigate. (People v. Bolin (1998) 18 Cal.4th 297, 334; People v. Jones (2003) 29 Cal.4th 1229, 1254.)

" 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' [Citations.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' [Citation.]" (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)

"In some cases, however, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal." (People v. Pope (1979) 23 Cal.3d 412, 426, fn. omitted; disapproved on other grounds in People v. Berryman, (1993) 6 Cal.4th 1048, 1081, fn. 10.)

Defendant argues defense counsel was prejudicially ineffective because of his failure to introduce "critical facts" at the suppression hearing, such as the time of the warrantless search, and that defendant and the other three occupants had been removed from the trailer before Shotwell conducted the search. Defendant also cites certain facts introduced at trial, such as Shotwell's testimony about where defendant lived and why he thought defendant was in the trailer. Defendant contends that if these facts had been introduced at both pretrial hearings, the court would have been compelled to grant his motions to suppress the contraband and exclude his confession, and he would not have gone to trial.

Based on defendant's ineffective assistance claims, we will review the entirety of the record, including evidence introduced at both pretrial hearings and the jury trial, to determine whether counsel was prejudicially ineffective for failing to introduce certain evidence at the pretrial suppression hearings. As we will explain below, we will conclude that defense counsel was not prejudicially ineffective, and that the warrantless search of the trailer was valid based on Ms. Reiss's probationary status and probation search condition. We will also find that while defendant's initial confession was obtained in violation of Miranda, his subsequent statements were not involuntary or the result of coercive interview techniques.

II. The warrantless search of the trailer

As set forth ante, the superior court denied defendant's pretrial motion to suppress evidence and found the warrantless search of the trailer was valid because the other three people who were in the trailer-Watkins, Reinhart, and Sparks-were on probation and subject to search conditions, and the evidence would have been inevitably discovered pursuant to a probation search based on their conditions.

On appeal, defendant contends his suppression motion should have been granted because the warrantless search was not valid as a search incident to defendant's arrest. Defendant further asserts the "mere presence" of the three probationers in the trailer failed to justify the warrantless search because there was no evidence they had any control or authority over the trailer. Defendant argues the evidence fails to support any other exception to the warrant requirement such that the suppression motion should have been granted.

"Under California law, issues relating to the suppression of evidence derived from police searches and seizures must be reviewed under federal constitutional standards. [Citations.]" (People v. Robles (2000) 23 Cal.4th 789, 794 (Robles).)A defendant has the burden to establish a legitimate expectation of privacy in the area searched. (People v. McPeters (1992) 2 Cal.4th 1148, 1172, superceded by statute on another point as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) In this case, the court accepted the parties' stipulation that defendant had a legitimate expectation of privacy in the trailer.

Where law enforcement officers conduct a warrantless search, the People have the burden of proving by a preponderance of the evidence that the officers' actions were justified by an exception to the warrant requirement. (People v. Camacho (2000) 23 Cal.4th 824, 830; People v. Williams (1999) 20 Cal.4th 119, 127-129, 136.) "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. Glaser (1995) 11 Cal.4th 354, 362.) Our review "is confined to the correctness or incorrectness of the trial court's ruling, not the reasons for its ruling. [Citations.]" (People v. Dimitrov (1995) 33 Cal.App.4th 18, 27.)

As explained in section I, post, each pretrial motion "must be reviewed on the record as it existed when the court decided the motion." (People v. Torres, supra, 188 Cal.App.4th 775, 780.) Given defendant's ineffective assistance contentions, however, we will review the entirety of the record and each aspect of Deputy Shotwell's arrival on the Lake Isabella Road property, his entry into the trailer, and his search of the trailer.

A. The arrest warrant

We begin with the validity of defendant's initial arrest under a warrant. Under the Fourth Amendment, "entry into a private dwelling to conduct a search or effect an arrest is unreasonable without a warrant." (Steagald v. United States (1981) 451 U.S. 204, 214, fn. 7.) "[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." (Payton v. New York (1980) 445 U.S. 573, 603; People v. LeBlanc (1997) 60 Cal.App.4th 157, 164 (LeBlanc).)

Even when officers have an arrest warrant, they still must comply with section 844's knock/notice requirements prior to entering a residence. Section 844 also requires that officers have reasonable grounds to believe a person is inside the house before making entry. (§ 844; People v. Jacobs (1987) 43 Cal.3d 472, 478 (Jacobs).)" 'Reasonable grounds to believe the person named in the warrant was in the house means such a state of fact as would lead a man of ordinary caution or prudence to believe, and to conscientiously entertain a strong suspicion the subject of the warrant was in the house.' [Citation.]" (Jacobs, supra, 43 Cal.3d at p. 479.) There must be a reasonable belief that the subject is inside at the time of entry. (Id. at p. 478.) Once officers with a valid arrest warrant have reasonable grounds to believe the subject is inside a dwelling, they may demand entry and, if necessary, force entry to search for the subject. (LeBlanc, supra, 60 Cal.App.4th at p. 164.)

The entirety of the record shows that Deputy Shotwell properly walked onto the Lake Isabella Road property and entered the trailer to serve the arrest warrant on defendant. Shotwell had a valid warrant for defendant's arrest. He arrived at the Lake Isabella Road property to conduct a probation search based on Reiss's search condition, and because he believed defendant might be on the property.¹⁴ He validly entered the property by walking up the dirt road which led from Lake Isabella Road, went past the trailer, and continued to the house. "A sidewalk, pathway, common entrance or similar passageway offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there." (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 629.)

14 As we will explain in part II,post, Shotwell validly entered Ms. Reiss's property pursuant to her probation search condition. (See, e.g., People v. Pleasant (2004) 123 Cal.App.4th 194, 197 (Pleasant).)

Shotwell also had reasonable grounds to believe defendant was in the trailer. As he approached the trailer from the dirt road, he saw a light on and heard people laughing and talking from the back of the trailer. Shotwell heard one voice say defendant's first name, "Bruce," heard another voice respond, recognized the responding voice as defendant based on their prior encounters, and he was confident that defendant was in the trailer.

Shotwell complied with knock/notice requirements because he approached the trailer and said "something like 'Hey, you guys,' or something and they said 'Who is it' and then I knocked on the door and I heard [defendant] tell somebody to lock the door." Shotwell announced, " 'Sheriff's department,' " called out defendant's name, and said defendant had a felony warrant. Shotwell heard defendant's voice respond, " 'I don't have a warrant.' " Shotwell said to open the door but no one did. Shotwell opened the door and went inside the trailer.

Deputy Shotwell had a valid warrant for defendant's arrest, he heard defendant's voice from inside the trailer, he recognized defendant's voice from their prior contacts, he complied with knock/notice requirements and clearly announced his identity and presence, and he properly conducted the unforced entry of the trailer by opening the door when he heard defendant tell someone to lock the door.

We further note that once Deputy Shotwell served the arrest warrant on defendant, he had the authority to detain the other three occupants of the trailer that he encountered in order to determine their identities. (See, e.g., People v. Hannah (1996) 51 Cal.App.4th 1335, 1343-1346.)

B. Plain view

At the suppression hearing, the superior court properly considered and rejected plain view as a theory to support Deputy Shotwell's search of the brown leather pouch. An officer's observation of an item already in plain view does not implicate an individual's reasonable expectation of privacy. (Horton v. California (1990) 496 U.S. 128, 133.) If the item's incriminating character is immediately apparent to an officer in a lawful position to observe and access the item, the plain view doctrine allows the warrantless seizure of the item as evidence of a crime. (Id. at pp. 136-137.) The doctrine does not apply when the incriminating character of an object is not immediately apparent and "some further search of the object" is required. (Minnesota v. Dickerson (1993) 508 U.S. 366, 375.)

At both the pretrial hearings and the jury trial, Deputy Shotwell testified that he did not see any methamphetamine or contraband in plain view in the trailer. He saw a piece of plastic sticking out of the brown leather pouch, but admitted that he did not see the plastic bindles of methamphetamine until he opened the pouch. Shotwell found the second bag of methamphetamine between the bed and divider wall, and found the other contraband inside drawers and boxes. There is no evidence that Shotwell saw anything in plain view to support the warrantless search of the trailer.

C. Search incident to an arrest

At the suppression hearing, the prosecution argued that Deputy Shotwell's warrantless search of the trailer was valid as a search incident to defendant's lawful arrest. The People renew this argument on appeal and contend Deputy Shotwell properly searched the brown leather pouch and the rest of the trailer incident to defendant's lawful arrest, based on the facts that were before the court at the suppression hearing.

"A search conducted without a warrant is unreasonable per se under the Fourth Amendment unless it falls within one of the 'specifically established and well-delineated exceptions.' [Citations.]" (People v. Woods (1999) 21 Cal.4th 668, 674; People v. Thompson (2006) 38 Cal.4th 811, 817-818.) One such exception is a search incident to a lawful custodial arrest. (People v. Leal (2009) 178 Cal.App.4th 1051, 1059-1060 (Leal).)

In Chimel v. California (1969) 395 U.S. 752 (Chimel), the court explained the "proper extent" of a search incident to arrest. (Id. at p. 762.) First, to effect the arrest in a safe manner, "it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape." (Id. at p. 763.) Second, the police may conduct a "search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction." (Ibid.)"[T]he area into which an arrestee might reach in order to grab a weapon or evidentiary items," i.e., the "area 'within his immediately control,' " is "governed by a like rule." (Ibid.)

However, " '[o]nce an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.' [Citations.]" (Chambers v. Maroney (1970) 399 U.S. 42, 47 (Chambers); Leal, supra, 178 Cal.App.4th at p. 1060.) "[T]he reasons that have been thought sufficient to justify warrantless searches carried out in connection with an arrest no longer obtain when the accused is safely in custody at the station house," or safely lodged in a police car. (Chambers, supra, 399 U.S. at p. 47; Leal, supra, 178 Cal.App.4th at p. 1060.)

"A different rule of reasonableness applies when the police have a degree of control over a suspect but do not have control of the entire situation. In such circumstances-e.g., in which third parties known to be nearby are unaccounted for, or in which a suspect has not yet been fully secured and retains a degree of ability to overpower the police or destroy evidence-the Fourth Amendment does not bar the police from searching the immediate area of the suspect's arrest as a search incident to an arrest. [Citation.]" (Leal, supra, 178 Cal.App.4th at p. 1060.)

In Gant, supra, 129 S.Ct. 1710, the court reaffirmed its analysis in Chimel as to the extent of a search incident to an arrest. The defendant in Gant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car. The police then searched his car, found a jacket on the backseat, searched the jacket, and found cocaine in a jacket pocket. Gant held the search incident to arrest exception, as defined in Chimel and applied to vehicles in New York v. Belton (1981) 453 U.S. 454, did not justify the search because the defendant could not have accessed his car to retrieve weapons or evidence at the time the search was conducted. (Gant, supra, 129 S.Ct. at p. 1714.)

"In Chimel, we held that a search incident to arrest may only include 'the arrestee's person and the area "within his immediate control"-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.' [Citation.] That limitation, which continues to define the boundaries of the exception, ensures that the scope
of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. [Citation.] If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply. [Citation.]" (Gant, supra, 129 S.Ct. at p. 1716, italics added.)

At the suppression hearing in the instant case, the prosecutor argued that Deputy Shotwell properly searched the interior of the trailer incident to defendant's lawful arrest. On appeal, the People renew this argument and assert Shotwell properly searched the brown leather pouch incident to defendant's arrest and found the methamphetamine bindles, based on Shotwell's testimony that he saw the pouch about one foot away from defendant's location on the bed. The People also contend that Shotwell properly seized the second bag of methamphetamine because it was located between the half-wall and the bed where defendant had been sitting. The People argue the search was reasonably contemporaneous with defendant's arrest and "the suppression hearing record discloses no subsequent events had rendered the search unreasonable."

At both pretrial hearings, Shotwell testified he saw the brown leather pouch next to the location where defendant was sitting on the bed. At the hearing on the suppression motion, Shotwell did not clarify where defendant was when Shotwell actually searched the pouch and the trailer. Based on Gant's reaffirmance of Chimel, the superior court properly rejected the People's reliance on a search incident to an arrest because of the complete lack of evidence as to defendant's exact location when Shotwell actually searched the pouch and the other areas of the trailer.

While the superior court properly acknowledged the evidentiary void as to defendant's location, that question was answered by Shotwell's testimony at the subsequent hearing on defendant's motion to exclude his pretrial confession. At that hearing, Shotwell testified he arrested defendant on the warrant, placed him in handcuffs, and escorted him out of the trailer, along with the three other people, and they stayed outside the trailer under Deputy Cabral's supervision. Shotwell testified he went back into the trailer to conduct the search. Shotwell never searched the trailer while defendant was still inside. The People object to this court's consideration of any facts that were not before the superior court at the suppression hearing but, as we have explained, defendant's ineffective assistance arguments are specifically based upon defense counsel's alleged failure to introduce this specific fact at the suppression hearing.

The People rely on People v. Rege (2005) 130 Cal.App.4th 1584 (Rege)and argue that Shotwell could have properly conducted a search incident to arrest inside the trailer regardless of defendant's actual location. Rege held that an arrestee and the area within his immediate control may be searched for weapons and evidence. Rege further held the search may be conducted after the arrestee has been removed from the search location, as long as the search is " 'reasonably contemporaneous [with the arrest] and nothing has occurred in the meantime to render it unreasonable.' " (Rege, supra, 130 Cal.App.4th at p. 1590.) However, Rege was decided prior to the United States Supreme Court's decision in Gant, which clarified and reaffirmed that a search incident to arrest must occur when the arrestee is present, and Rege's interpretation of Chimel has been criticized in light of Gant. (See, e.g., Leal, supra, 178 Cal.App.4th at pp. 1064-1066.)

We thus conclude that as explained in Gant and Chimel, the entirety of the record demonstrates that Shotwell's warrantless search of the trailer was not valid as a search incident to defendant's arrest, since defendant and the other three people were outside the trailer and under the supervision of Deputy Cabral when Shotwell conducted the search.

III. The validity of the search incident to probation searches

At the pretrial suppression hearing, Deputy Shotwell testified that one of the reasons he went to the Lake Isabella Road property was because the woman who lived there, Ms. Reiss, was on probation, she was subject to a probation search condition for drugs and narcotics paraphernalia, and he intended to conduct a probation search. He also testified that he discovered the other three occupants of the trailer - Watkins, Sparks, and Reinhart - were on probation and subject to probation search conditions.

The superior court did not address the validity of a search pursuant to Ms. Reiss's search conditions, but instead found that Deputy Shotwell's warrantless search of the trailer was valid because the three other occupants of the trailer were on probation and the contraband would have been inevitably discovered pursuant to their probation search conditions. We thus turn to the validity of a probation search under the facts and circumstances of this case.

A. Probation searches

"In California, a person may validly consent in advance to warrantless searches and seizures in exchange for the opportunity to avoid serving a state prison term. [Citations.] Warrantless searches are justified in the probation context because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers. [Citation.]" (Robles, supra, 23 Cal.4th at p. 795.) A probationer who accepts a warrantless search condition voluntarily waives his or her right to privacy, except for the right to object to harassment or object to searches conducted in an unreasonable manner. (People v. Bravo (1987) 43 Cal.3d 600, 607.) An officer who is aware of the search condition "may act reasonably in conducting a [probation] search even in the absence of a particularized suspicion of criminal activity, and such a search does not violate any expectation of privacy of the [probationer]." (People v. Sanders (2003) 31 Cal.4th 318, 333 (Sanders))

The validity of a probation search does not turn on the "actual motivations of individual officers." (Whren v. United States (1996) 517 U.S. 806, 813; Sanders, supra, 31 Cal.4th at p. 334; People v. Woods, supra, 21 Cal.4th at pp. 678-680.) The officer's subjective intent "has no role to play in determining the lawfulness of a probation or parole search." (People v. Gomez (2005) 130 Cal.App.4th 1008, 1015.) The reasonableness of the search "must be determined based upon the circumstances known to the officer when the search is conducted...." (Sanders, supra, 31 Cal.4th at p. 334.)

In order to conduct a probation search of a residence, officers must comply with knock/notice requirements. (People v. Murphy (2005) 37 Cal.4th 490, 496; People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1194, fn. 9.) The officers may briefly detain nonprobationers who are present during a probation search to determine their identities. (See, e.g., People v. Matelski (2000) 82 Cal.App.4th 837, 851-852.)

It is now settled that an officer must have advance knowledge about an individual's probation or parole search conditions at the time such a search is conducted. (Sanders, supra, 31 Cal.4th at p. 335; In re Jaime P. (2006) 40 Cal.4th 128, 130, 139.) An otherwise unlawful search of the residence of a probationer "may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted." (Sanders, supra, 31 Cal.4th at p. 335, fn. omitted.)

"[T]he admission of evidence obtained during a search of a residence that the officer had no reason to believe was lawful merely because it later was discovered that the suspect was subject to a search condition would legitimize unlawful police conduct." (Sanders, supra, 31 Cal.4th at p. 335.)

"Under the Sanders analysis, a parole or probation search condition unknown to the officer at the time he acted would not appear ever to justify a search or seizure, whether the subject of the search was walking on the street, the occupant of a vehicle, or in a residence. This is so because Sanders, and virtually every Fourth Amendment case that addresses the issue, requires the court reviewing the officer's conduct to analyze the issue based on the facts known to the officer at the time he acted. [Citation.] If the officer does not know the suspect is on parole or probation, then that fact should not be considered when performing a Fourth Amendment analysis." (People v. Hester (2004) 119 Cal.App.4th 376, 403 (Hester), cited with approval in In re Jaime P., supra, 40 Cal.4th at pp. 135-136.)

Thus, "after-acquired knowledge of a probation search condition will not legalize otherwise unlawful conduct ...." (Hester, supra, 119 Cal.App.4th at p. 405.)

B. The privacy interests of nonprobationers who live with probationers

A tenant, hotel guest, visitor, or other occupant may have a constitutionally protected legitimate expectation of privacy in non-owned premises. (Minnesota v. Olson (1990) 495 U.S 91, 99 [overnight guest]; People v. Cowan (1994) 31 Cal.App.4th 795, 799 [house guest]; In re Rudy F. (2004) 117 Cal.App.4th 1124, 1132 ["mere" house guest]; People v. Thompson (1996) 43 Cal.App.4th 1265, 1269 [rental tenant]; People v. Koury (1989) 214 Cal.App.3d 676, 688, 691 [overnight guest with key].)

We have already explained that officers may briefly detain nonprobationers who are present during a probation search in order to determine their identities. (People v. Matelski, supra, 82 Cal.App.4th at pp. 851-852.) In addition, "[p]ersons who live with probationers cannot reasonably expect privacy in areas of a residence that they share with probationers." (Pleasant, supra, 123 Cal.App.4th 194, 197.) "[T]hose who live with a probationer maintain normal expectations of privacy over their persons. In addition, they retain valid privacy expectations in residential areas subject to their exclusive access or control, so long as there is no basis for officers to reasonably believe the probationer has authority over those areas. [Citations.]" (Robles, supra, 23 Cal.4th at p. 798, italics added.)

If someone lives with a probationer, "common or shared areas of their residence may be searched by officers aware of an applicable search condition." (Robles, supra, 23 Cal.4th at p. 798.) "[A] warrantless search, justified by a probation search condition, may extend to common areas, shared by nonprobationers, over which the probationer has 'common authority.' [Citation.]" (People v. Smith (2002) 95 Cal.App.4th 912, 916 .) The "[c]ommon authority" theory of consent rests "on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." (United States v. Matlock (1974) 415 U.S. 164, 171, fn. 7, italics added; People v. Woods, supra, 21 Cal.4th at p. 676 .) When an officer executes a probation search, the officer may therefore "look into closed containers that he or she reasonably believes are in complete or joint control of the ... probationer. [Citations.]" (People v. Baker (2008) 164 Cal.App.4th 1152, 1159.)

"In all cases, a search pursuant to a probation search clause may not exceed the scope of the particular clause relied upon. [Citation.] Nor may such a search be undertaken in a harassing or unreasonable manner. [Citations.] Moreover, officers generally may only search those portions of the residence they reasonably believe the probationer has complete or joint control over. [Citation.] That is, unless the circumstances are such as to otherwise justify a warrantless search of a room or area under the sole control of a nonprobationer (e.g., exigent circumstances), officers wishing to search such a room or area must obtain a search warrant to do so." (People v. Woods, supra, 21 Cal.4th at p. 682.)

As noted ante, a probation search is a type of consent search based on the nature of probation. (Robles, supra, 23 Cal.4th at p. 795.) "As with other factual determinations bearing upon search and seizure, determination of consent to enter must 'be judged against an objective standard: would the facts available to the officer at the moment . "warrant a man of reasonable caution in the belief" ' that the consenting party had authority over the premises? [Citations.]" (Illinois v. Rodriguez (1990) 497 U.S. 177, 188.)

C. Probation search based on Reiss's search conditions

As discussed in the factual summary, ante, Deputy Shotwell testified that he had been on the Lake Isabella Road property before, he knew that Laura Reiss lived there, that she was on probation, and she was subject to a search condition for narcotics and paraphernalia.¹⁵ We thus consider the argument that Deputy Shotwell validly searched the interior of the trailer based on his knowledge that Reiss was on probation and subject to search conditions.

15 As we have explained, we are considering the entirety of the record based on defendant's claim that defense counsel was prejudicially ineffective for failing to introduce certain facts at the pretrial suppression hearing.

Defendant correctly states that he was not on probation or subject to any warrantless search conditions. Defendant argues the warrantless search was not justified by Reiss's probationary search conditions because Shotwell knew she did not live in the trailer and she was not present when Shotwell entered the trailer to serve the arrest warrant. Defendant argues there is no evidence whether the terms of Reiss's probation search condition provided for the warrantless search of "the trailer in which [defendant] lived."

We have already found that Deputy Shotwell had reasonable grounds to believe defendant was in the trailer in order to serve the arrest warrant, based on hearing defendant's voice coming from the trailer as Shotwell walked on the dirt road. Reiss was not in the trailer when Shotwell served the warrant, but Shotwell reasonably believed that Reiss still exercised control over the trailer and its contents, based on his undisputed testimony about her previous statements.

While the parties stipulated that defendant had a reasonable expectation of privacy in the trailer, and Shotwell may have believed defendant was staying in the trailer, those beliefs are not inconsistent with the equally reasonable belief that Reiss still had joint access or control over the trailer and its contents. There was no evidence that defendant was renting the trailer from Reiss, that he had a key and she did not, that he had assumed sole and exclusive control over the trailer, or that he had the ability to exclude Reiss from the interior. There is no evidence that Shotwell discovered defendant's clothing or personal property in the trailer (aside from a shelf of books). Indeed, when Shotwell walked up to the trailer, identified himself, and called out to defendant, he ordered one of the other occupants to lock the door, thus implying that the door was unlocked and the trailer was still within Reiss's control. (See, e.g., Pleasant, supra, 123 Cal.App.4th at p. 199.)

While defendant may have been staying in the trailer, there is no evidence to contradict Reiss's previous statement to Shotwell, that she had control over everything in the trailer, and it was reasonable for Shotwell to search the trailer based on Reiss's probation search condition. There was still a valid basis for Shotwell to "reasonably believe the probationer [had] authority" over the trailer, consistent with her prior statement on the matter. (Robles, supra, 23 Cal.4th at p. 798.)

Defendant argues there is "no question" that Shotwell knew defendant "was living in the trailer," and cites to the trial record. The trial record is not that precise. As we have explained, Shotwell testified at trial that he knew defendant's house was on Harrington Avenue, two other people were staying there, and he thought defendant was staying in the trailer on the Lake Isabella Road property. Shotwell testified that defendant claimed ownership of a shelf of books in the trailer, but Shotwell did not find any mail, personal items, or clothing in the trailer that might have belonged to defendant. Again, there is no evidence that defendant had exclusive control of the trailer or could deny access to Reiss, to contradict her prior statement that she controlled the trailer and its contents.

Defendant further asserts that even if the warrantless search was a valid probationary search, the search was still unreasonable since Shotwell arrived on Reiss's property at 1:42 a.m. and the search may have occurred around 2:00 a.m. Defendant argues the timing of the purported probation search "strongly suggests" the search was calculated to harass the probationer. The facts refute this claim. Shotwell testified, without contradiction, that he saw a light and heard voices coming from the trailer, including one which he recognized as defendant's voice. While Shotwell arrived on the property in the early morning hours, there is no evidence that he rousted or awakened any one in order to conduct the probation search or serve the arrest warrant.

D. Randolph

Defendant argues that even if the warrantless search of the trailer was potentially valid based on Ms. Reiss's search condition, defendant "vitiated this consent when he objected to the search by locking the door when Shotwell announced his presence." This argument is meritless. An officer may conduct a warrantless search based on a probation condition because the probationer has given advance consent for that search. (Robles, supra, 23 Cal.4th at p. 795.) However, the probationer who gave consent was Reiss and not defendant. There is no evidence that defendant demonstrated his exclusive control over the trailer by locking out Reiss, to refute the uncontradicted evidence that Reiss said that everything in the trailer was hers and that she had control over the trailer and its contents. Instead, defendant directed one of the other occupants of the trailer to lock the door after Shotwell called out for defendant. Defendant's attempts to evade arrest were insufficient to refute the reasonable belief that the trailer was a common area subject to joint access and control by Reiss and himself.

Defendant relies on Georgia v. Randolph (2006) 547 U.S. 103 (Randolph), and argues that his refusal to consent to Shotwell's search of the trailer nullified any consent the absent Reiss might have given pursuant to her probation search condition. In Randolph, the police responded to a couple's residence on a domestic disturbance and child custody matter. The wife had previously moved out of the house, but she had recently returned, and she was currently living there with her estranged husband. Both the husband and wife were present when the police arrived. The wife told the officer that her husband was using drugs. The officer asked the husband for consent to search the house, and the husband unequivocally refused. However, the wife consented and led the officer into the husband's bedroom. The officer conducted the search despite the husband's express refusal of consent, and narcotics were found. (Id. at p. 108.)

Randolph held that when a husband and wife disagree about police admittance to their home, a warrantless search cannot be justified on grounds of consent, notwithstanding the consent of one of the parties. (Randolph, supra, 547 U.S. at p. 115.) Randolph explained that in consent cases, "great significance [is] given to widely shared social expectations ...." (Id. at p. 111.) "[I]t is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant's invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, 'stay out.' Without some very good reason, no sensible person would go inside under those conditions." (Id. at p. 113.) Randolph held the ordinary assumption is that joint occupants have equal authority and grant access to their residence only upon mutual consent. (Id. at p. 114.)

Randolph concluded that "a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." (Randolph, supra, 547 U.S. at p. 120, fn. omitted.) Randolph further held that "a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant." (Id. at pp. 122-123.) "Since the co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all. [T]he cooperative occupant's invitation adds nothing to the government's side to counter the force of an objecting individual's claim to security against the government's intrusion into his dwelling place." (Id. at pp. 114-115.) However, Randolph further held that "if a potential defendant with self-interest in objecting is in fact at the door and objects, the co- tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out." (Id. at p. 121, italics added.)

Defendant argues Randolph applies to this case because he refused to consent to Shotwell's search of the trailer based on the evidence that Shotwell heard defendant tell someone to lock the trailer's door. However, the facts of this case are vastly different from the situation in Randolph. Based on the entirety of the record, Shotwell testified he arrived on the property to conduct a probation search based on Reiss's search condition, and because he believed defendant might be staying there, he intended to serve the arrest warrant. Shotwell walked on the dirt road, headed to the house, where he saw lights on and heard voices from the back of the trailer. Shotwell approached the trailer, announced his presence, and he heard defendant tell one of the other occupants to lock the door. Shotwell opened the door and served the arrest warrant on defendant.

Defendant argues that his direction to lock the door was the equivalent of the husband's refusal to consent to the search in Randolph that the court was found was dispositive. In Randolph, however, there was no question that the husband was a cotenant who lived in the house. In this case, while Shotwell believed defendant may have been staying in the trailer, he was not aware of any evidence at the time of the search to indicate that defendant was living there and a cotenant, as in Randolph. In addition, defendant's direction to one of the other occupants, to lock the door, was aimed at preventing Shotwell from serving the arrest warrant on him and taking him into custody. In contrast to Randolph, there is no evidence that defendant made any express statements to object to Shotwell searching the trailer. Indeed, the entirety of the record reveals that defendant was outside the trailer when it was being searched. As explained in Randolph, "the potential objector, nearby but not invited to take part in the threshold colloquy, loses out" in trying to withhold consent to a search. (Randolph, supra, 547 U.S. at p. 121.) Finally, Randolph did not address a probation search clause, but instead was based on the government's "generalized interest in expedient law enforcement." (Id. at p. 115, fn. 5.)

E. Search based on the probation search conditions of the three occupants

We next turn to the validity of the superior court's reason for denying defendant's suppression motion, that the methamphetamine and paraphernalia would have been inevitably discovered because the other three occupants of the trailer-Watkins, Sparks, and Reinhart - were on probation and subject to search conditions. Defendant argues there was no evidence that any of these three people lived in the trailer or had any common authority over it.

The entirety of the record fails to explain exactly why Watkins, Sparks, and Reinhart were in the trailer. There is no evidence that they were living or staying there, or that they had any kind of familial relationship with defendant. At most, the record implies they were visitors to the trailer at the time that Shotwell served the arrest warrant on defendant. As we have explained, Shotwell validly detained the three people as he served the arrest warrant in order to determine their identities. (People v. Matelski, supra, 82 Cal.App.4th at pp. 851-852; People v. Hannah, supra, 51 Cal.App.4th at pp. 1343-1346.)

It could be argued that Shotwell validly searched the trailer because he reasonably believed the three probationers had joint control or shared access of the interior, independent of Reiss's search condition. At the trial, Shotwell described the trailer as about 18 feet long and 8 to 10 feet wide. When Shotwell entered the trailer, he found Watkins standing at the door. Defendant was sitting on a bed, located in the back right corner of the trailer. The bed was adjacent to a three-foot high divider wall. Sparks was sitting at a table located on the other side of the half-wall.¹⁶ Reinhart was sitting on another bed located directly across from the bed where defendant was sitting.

16 At the preliminary hearing, Shotwell testified it was possible for the man sitting on the other side of the divider wall to reach over to defendant's side.

It could be argued that Shotwell reasonably believed Watkins, Reinhart, and Sparks had joint access or control over the common areas that were within their reach inside the trailer. Given the relatively small dimensions of the trailer, compared to the locations of the three probationers when Shotwell entered the trailer, those areas could have reasonably included the entirety of the interior. Defendant was sitting on a bed and the brown leather pouch was next to him. Sparks was sitting next to the half-wall, directly adjacent to the bed where defendant was sitting. Reinhart was sitting across from that same bed. The second bag of methamphetamine was found between that bed and the half-wall. The box which contained the syringes and scales was under the bed where Reinhart was sitting. Thus, it could be argued that Shotwell search areas conceivably within the authority of the three probationers.

However, there are serious problems with the superior court's reliance on the probation search conditions of the three occupants, and its finding that the narcotics and contraband would have been inevitably discovered. As we have explained, a search pursuant to a probation search condition is valid only if the officer knew of the condition when he performed the search. (Sanders, supra, 31 Cal.4th at p. 335; In re Jaime P., supra, 40 Cal.4th 128, 130, 139.)

Suppression hearing

At the suppression hearing, Shotwell strongly implied that he searched the brown leather pouch immediately after he arrested defendant on the arrest warrant. Shotwell testified after he discovered the methamphetamine in the pouch, his partner checked with dispatch and determined that Reinhart, Watkins, and Sparks were on probation and subject to search conditions for narcotics and paraphernalia. Shotwell testified that after he confirmed the existence of the search conditions, he searched the trailer for additional narcotics and paraphernalia, in the areas where the three probationers had been located in the trailer, and found the additional methamphetamine and other contraband.

Motion to exclude confession

As we have explained, the testimony elicited from Shotwell at the hearing on the motion to exclude defendant's confession was somewhat different. Shotwell clarified that he searched the brown leather pouch and the interior of the trailer after defendant and the other three people had walked out of the trailer, and while they were waiting outside under Deputy Cabral's supervision. Defendant had already been placed in handcuffs. After finding the drugs and contraband, Shotwell testified he walked out of the trailer and stood at the entrance. Deputy Cabral was outside with defendant and the other three people. At this point, Shotwell displayed the methamphetamine and asked who it belonged to. Shotwell testified he could not remember if the other three people were in handcuffs at the time that he asked that question. Shotwell believed Deputy Cabral handcuffed the other three people at some point, but Shotwell was not sure when that happened. Shotwell believed that he and his partner learned there was an arrest warrant for one of the occupants of the trailer, Wayne Sparks, but he was not sure when he learned that information.

Trial

At trial, Deputy Shotwell testified he arrested defendant, placed him in handcuffs, and then escorted defendant and the other three people out of the trailer. Deputy Cabral led them outside and had them sit down, and Shotwell went back into the trailer to search it. Shotwell testified that at some point, the deputies learned that two of the other three people had misdemeanor warrants, and Deputy Cabral placed one of them in handcuffs. Shotwell testified he also learned that the other three people were on probation and subject to search conditions, but he did not clarify when he obtained that information.

It is very difficult to determine from the entirety of the record when Shotwell knew that the other three occupants of the trailer were on probation and subject to search conditions. The record implies that Shotwell learned this information after he searched the trailer, consistent with his testimony that they later discovered that two of the other three people had outstanding warrants and were placed in handcuffs. The superior court seemed to resolve this factual question the same way - that Shotwell did not learn about the probation search conditions until after he searched the trailer - because the court held the contraband would have been inevitably discovered since the other three people were on probation and subject to search conditions.

The superior court's reliance on inevitable discovery necessarily implies that it concluded that Shotwell learned about their probationary status after he conducted the search. We must thus consider whether the inevitable discovery doctrine applies as to whether a probation search is valid when the officer doesn't know about the probation condition at the time of the search.

F. Inevitable discovery

The superior court's reliance on the inevitable discovery doctrine is questionable in the context of a probation search. "The inevitable discovery doctrine operates as an exception to the exclusionary rule: Seized evidence is admissible in instances in which it would have been discovered by the police through lawful means. As the United States Supreme Court has explained, the doctrine 'is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.' [Citations.] 'The purpose of the inevitable discovery rule is to prevent the setting aside of convictions that would have been obtained without police misconduct.' [Citations.]" (People v. Superior Court (Walker)(2006) 143 Cal.App.4th 1183, 1214-1215, fn. omitted.)

"[T]o justify application of the inevitable discovery exception, [the People] must demonstrate by a preponderance of the evidence that, due to a separate line of investigation, application of routine police procedures, or some other circumstance," the evidence seized "would have been discovered by lawful means. The showing must be based not on speculation but on 'demonstrated historical facts capable of ready verification or impeachment.' [Citation.] The inevitable discovery exception requires the court ' "to determine, viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred." ' [Citation.]" (People v. Hughston (2008) 168 Cal.App.4th 1062, 1072, italics in original.)

However, the California Supreme Court has declined to apply the inevitable discovery doctrine in cases where officers were unaware of probation or parole search conditions. (See, e.g., Robles, supra, 23 Cal.4th at pp. 800-801; Sanders, supra, 31 Cal.4th at p. 333.) Indeed, Sanders and Jaime T. specifically held that probation and parole searches were reasonable only if the officer knew of the suspect's probation search condition before conducting the search; such a holding is inconsistent with applying the inevitable discovery doctrine to such situations. (Sanders, supra, 31 Cal.4th at p. 333; In re Jaime P., supra, 40 Cal.4th at pp. 133, 139.)

G. Conclusion

The court properly denied defendant's motion to suppress and defense counsel was not prejudicially ineffective for failing to introduce certain facts at the suppression hearing. It is undisputed that Ms. Reiss was on probation and subject to a search condition, and that she previously told Shotwell that everything in the trailer was "hers that she has control over." While defendant may have been staying in the trailer, there is no evidence that he had excluded Ms. Reiss from the trailer to refute the evidentiary inference that she still had joint control over the interior. In addition, the search was valid incident to defendant's lawful arrest given the unique factual circumstances of the fluid situation in the trailer, as the two deputies were confronted with gaining control of three other occupants at the moment they arrested defendant.

Given our conclusion that the warrantless search of the trailer was valid, we need not reach defendant's additional contention that his confession should have been excluded as the fruit of the illegal search. In parts IV and V, however, we will address whether his confession was voluntary.

IV. The admissibility of defendant's pretrial confession

As set forth ante, after Deputy Shotwell searched the trailer, he showed the methamphetamine to defendant and the other three people, and asked who the drugs belonged to. Defendant had already been arrested and was in handcuffs, but he had not been advised of the Miranda warnings. No one responded to Shotwell's inquiry, and Shotwell then said that if no one claimed the drugs he was going to arrest everyone. Defendant then claimed ownership. Shotwell advised him of the Miranda warnings, said he found evidence consistent with sales, again asked if the drugs belonged to him, and defendant again claimed responsibility for the items found in the trailer. The superior court excluded defendant's pre-Miranda confession, but found defendant was not coerced and his post -Miranda confession was voluntary and admissible under Elstad.

On appeal, defendant contends the superior court should have granted his motion to exclude his post-Miranda confession. Defendant argues he was subject to an illegal custodial interrogation in the absence of Miranda warnings and not simply a technical Miranda violation. Defendant further argues that his confession was involuntary and the result of coercive interrogation techniques because he made the statements in response to Shotwell's declaration that he would arrest everyone if no one claimed ownership of the narcotics. Defendant asserts that Shotwell's belated advisement of the Miranda warnings did not render his subsequent confession voluntary and admissible, even under the standards set forth in Elstad.

Defendant further argues that Deputy Shotwell's tactics in this case were consistent with the "deliberate two-step interrogation strategy" disapproved by the United States Supreme Court in Seibert, supra, 542 U.S. 600.

In conjunction with this issue, defendant again claims defense counsel was prejudicially ineffective for failing to introduce certain relevant facts at the evidentiary hearing on his motion to exclude.

A. Custodial interrogation

An officer must advise a suspect of the Miranda warnings when that suspect is subject to custodial interrogation. (People v. Mickey (1991) 54 Cal.3d 612, 648; People v. Mosley (1999) 73 Cal.App.4th 1081, 1088.) The failure of law enforcement officers to administer Miranda warnings creates a presumption that any statements made by the suspect during custodial interrogation were the product of compulsion. (Elstad, supra, 470 U.S. at pp. 309-310; People v. Bradford(1997) 14 Cal.4th 1005, 1033 (Bradford).)

"In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under Miranda..., the scope of our review is well established. 'We must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained.' [Citations.] We apply federal standards in reviewing defendant's claim that the challenged statements were elicited from him in violation of Miranda. [Citations.]" (Bradford, supra, 14 Cal.4th at pp. 1032-1033.)

In the instant case, it is undisputed that defendant was subject to custodial interrogation in the absence of Miranda warnings. He was arrested on the valid arrest warrant, placed in handcuffs, and escorted out of the trailer. He was under the supervision of Deputy Cabral while Deputy Shotwell searched the trailer. Defendant was not advised of the Miranda warnings. Shotwell emerged from the trailer, displayed the methamphetamine, asked defendant and the other three people who the drugs belonged to, added that everyone would be arrested if no one claimed the drugs, and defendant then made the admissions. The superior court properly found that defendant's first confession was obtained in violation of Miranda.

B. Elstad

While defendant's first confession was clearly obtained in violation of Miranda, the next question is whether his subsequent, post-Miranda confession was tainted by the prior Miranda violation. The "[f]ailure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda." (Elstad, supra, 470 U.S. at p. 307; Bradford, supra, 14 Cal.4th 1005, 1033.)

However, "[i]t is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made." (Elstad, supra, 470 U.S. at p. 309.)

In Elstad, an officer arrested the defendant at his house for burglary. The officer failed to advise him of the Miranda warnings. The officer asked the defendant if he knew why the officer was there, and if he knew certain burglary victims. The defendant gave an incriminating response. The defendant was later transported to the police station, advised of the Miranda warnings, waived his rights, and gave a full statement. (Elstad, supra, 470 U.S. at pp. 300-302.)

Elstad held that the officer's initial failure to administer Miranda warnings did not taint the statements the defendant made after proper advisement and waiver of his Miranda rights. Elstad explained that a suspect who responds "to unwarned yet uncoercive questioning" may later waive his rights and confess after being "given the requisite Miranda warnings." (Elstad, supra, 470 U.S. at p. 318.) Elstad concluded that if a suspect's initial unwarned statement was voluntary, "[t]he relevant inquiry is whether, in fact, the second statement was also voluntarily made." (Elstad, supra, 470 U.S. at p. 318.)

"[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights." (Elstad, supra, 470 U.S. at p. 314.)

Elstad held the admissibility of a subsequent post-Miranda statement turns solely on the issue of "whether it is knowingly and voluntarily made." (Elstad, supra, 470 U.S. at p. 309.) "As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative." (Id. at p. 318.) Elstad clarified that it did not "condone inherently coercive police tactics or methods offensive to due process that render the initial admission involuntary and undermine the suspect's will to invoke his rights once they are read to him." (Id. at p. 317.) "When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession. [Citations.]" (Id. at p. 310.)

Elstad specifically declined to exclude the defendant's later statements as being the tainted fruit of the first non-Mirandized admission. (Elstad, supra, 470 U.S. at pp. 305-308.)

" '[After] an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession may always be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.' [Citation.]" (Elstad, supra, 470 U.S. at p. 311, italics added.)

Elstad concluded the defendant's initial, pre-Miranda statement was inadmissible, but held the statement was not involuntary or coerced, and concluded defendant's subsequent, post-Miranda statement was admissible:

"We find that the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case by barring use of the unwarned statement in the case[-]in[-]chief. No further purpose is served by imputing 'taint' to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." (Elstad, supra, 470 U.S. at p. 318.)

As applied to the instant case, defendant filed a motion to exclude the entirety of the statements he made shortly after he was arrested, and argued those statements were obtained in violation of Miranda and were involuntary because of Deputy Shotwell's "threat" that everyone would be arrested if no one claimed responsibility for the drugs. In response, the People relied on Elstad and argued that while defendant's initial confession was obtained in violation of Miranda, that statement was not involuntary or coerced because he already knew he was going into custody on the outstanding arrest warrant, and his subsequent, post-Miranda confession was voluntary and admissible. The court agreed with the People and held defendant's post-Miranda confession was admissible and not tainted by the earlier Miranda violation.

Thus, we must independently review the record to determine whether defendant's initial pre-Miranda confession was involuntary or coerced, and whether it tainted his subsequent, post-Miranda confession.

C. Voluntariness

The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution prohibit the use of involuntary statements made to law enforcement officers. (People v. Massie (1998) 19 Cal.4th 550, 576 (Massie); People v. Neal (2003) 31 Cal.4th 63, 79 (Neal).)When a defendant challenges his or her statements as involuntary, the prosecution bears the burden of proving voluntariness by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489; Massie, supra, 18 Cal.4th at p. 576.) "On appeal, the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to the voluntariness of the confession is subject to independent review. [Citations.]" (Massie, supra, 19 Cal.4th at p. 576; People v. Holloway (2004) 33 Cal.4th 96, 114 (Holloway))

A statement that is involuntary or coerced is "obtained by physical or psychological coercion, by promises of leniency or benefit, or when the 'totality of circumstances' indicates the confession was not a product of the defendant's 'free and rational choice.' [Citations.]" (People v. Cahill (1993) 5 Cal.4th 478, 482, fn. 1.) "Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the 'totality of [the] circumstances.' [Citations.]" (Neal, supra, 31 Cal.4th at p. 79.) In considering the totality of the circumstances, the relevant factors include " 'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' [Citation.]" (People v. Williams (1997) 16 Cal.4th 635, 660.)

"In determining whether a confession was voluntary, '[t]he question is whether defendant's choice to confess was not "essentially free" because his will was overborne.' [Citation.]" (Massie, supra, 19 Cal.4th at p. 576.) "Although coercive police activity is a necessary predicate to establish an involuntary confession, it 'does not itself compel a finding that a resulting confession is involuntary.' [Citation.] The statement and the inducement must be causally linked. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 404-405.)

It is well settled, however, that " 'mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.' [Citation.] As [the California Supreme Court] stated in People v. Hill (1967) 66 Cal.2d 536[, 549], the distinction between permissible and impermissible police conduct 'does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by the defendant if he speaks the truth as represented by the police.' [Citation.] In terms of assessing inducements assertedly offered to a suspect, ' "[when] the benefit pointed out by the police ... is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made [citation].' [Citation.]" (People v. Belmontes (1988) 45 Cal.3d 744, 773, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn 22.)

A confession will not be rendered involuntary when the police make neither a threat nor a promise, "but simply [make] an accurate statement of the circumstances." (People v. Thompson (1990) 50 Cal.3d 134, 170 (Thompson).)It is also permissible for an officer to suggest "possible explanations of the events" and offer defendant "an opportunity to provide details of the crime." (People v. Carrington (2009) 47 Cal.4th 145, 171.)

D. Defendant's first confession was not involuntary or coerced

Defendant argues that Elstad does not apply to the facts and circumstances of this case because his first confession was not simply obtained in violation of Miranda. Instead, defendant argues his initial confession was involuntary and coerced because his statements "stemmed" from Shotwell's "impermissible" threat that everyone would be arrested if no one claimed responsibility for the drugs found in the trailer. Defendant points out that the totality of the circumstances also show the first confession was involuntary because he was questioned around 2:00 a.m., he was arrested on an arrest warrant that he "did not believe he had," and he was handcuffed and seated on the ground while Shotwell searched the trailer.

Defendant argues that Elstad does not apply to this case because the same coercive aspects compelled his second, post-Miranda confession. Defendant asserts there was no temporal break between the first and second confessions, and defendant was questioned by the same officer, in the same place, and just a short time after the first confession.

Defendant's arguments are squarely based on whether Deputy Shotwell made a coercive statement when he said he would arrest everyone if no one claimed the drugs. This statement was not coercive based on the circumstances under which Shotwell found drugs in the trailer. As we have explained, a confession is not involuntary when the police "simply [make] an accurate statement of the circumstances." (Thompson, supra, 50 Cal.3d at p. 170.) Shotwell's statement to defendant and the other three people -- that he was going to arrest everyone if no one claimed ownership of the drugs - was not coercive because it was an accurate statement of the facts and circumstances that existed at that moment. "The elements of the crime of possession of narcotics are physical or constructive possession thereof coupled with knowledge of the presence of the drug and its narcotic character [citations]; possession need not be exclusive. [Citations.]" (People v. White (1969) 71 Cal.2d 80, 82-83; People v. Sotelo (1971) 18 Cal.App.3d 9, 20.) "Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. [Citation.] [¶] The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. [Citations.]" (People v. Williams (1971) 5 Cal.3d 211, 215; People v. Busch (2010) 187 Cal.App.4th 150, 162.)

When narcotics are found concealed in an area accessible to multiple individuals, there may be sufficient circumstantial evidence that each person is in joint possession of the drugs. (People v. Magana (1979) 95 Cal.App.3d 453, 464; People v. Sotelo, supra, 18 Cal.App.3d at p. 20; People v. Jenkins (1979) 91 Cal.App.3d 579, 584; People v. Busch, supra, 187 Cal.App.4th at p. 162.) In such a situation, "the question of what persons had joint possession is one of fact. [Citations.]" (People v. Sotelo, supra, 18 Cal.App.3d at p. 20.)

Deputy Shotwell had discovered four people, including defendant, located in very close proximity to each other, inside a relatively small trailer. He had discovered two large bags of methamphetamine, syringes, scales, and baggies, in areas of the trailer that appeared accessible to all four occupants of the trailer. Under such circumstances, any of the occupants could have been charged with possession of methamphetamine. Shotwell's statement that everyone would be arrested was accurate given the circumstances evidence of joint possession of the scales and large amount of narcotics.

It could be argued that Deputy Shotwell's assertion that he would arrest everyone induced defendant to make his confession in order to assist the other people in the trailer. "[W]here a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law. [Citation.]" (People v. Boyde (1988) 46 Cal.3d 212, 238.) "A threat by police to arrest or punish a close relative, or a promise to free the relative in exchange for a confession, may render an admission invalid. [Citations.] However, where no express or implied promise or threat is made by the police, a suspect's belief that his cooperation will benefit a relative will not invalidate an admission. [Citations.]" (People v. Steger (1976) 16 Cal.3d 539, 550.)

It is well settled that threats or promises relating to a defendant's parents, spouse, boyfriend or girlfriend, children, or other relatives "may also cause a defendant's will to be overborne." (In re Shawn D. (1993) 20 Cal.App.4th 200, 209; People v. Weaver (2001) 26 Cal.4th 876, 920; see, e.g., People v. Wimberly (1992) 5 Cal.App.4th 773, 787-788 [threat to the defendant that his mother would be arrested]; People v. Kelly (1990) 51 Cal.3d 931, 953 [exploitation of mother's fears that she would not see children without a confession]; People v. Boggs (1967) 255 Cal.App.2d 693, 700-701 [the defendant made confession to aid wife]; U.S. v. McShane (9th Cir. 1972) 462 F.2d 5, 6-8 [the defendant's confession made to assist girlfriend].)

In this case, however, these possible aspects of coercion are not applicable because there is absolutely no evidence of a familial relationship, if any, between defendant and the other three occupants of the trailer. There was no evidence that Reinhart was defendant's spouse or girlfriend, that defendant was related in any way to Sparks or Watkins, or that any of the others were staying at the trailer with defendant. None of them shared the same last name. While they may have been friends, there is no evidence that defendant's relationship with any of them was such that his will was overborne and he was compelled by Shotwell's statement to claim ownership of the narcotics.

In further support of his coercion argument, defendant cites to certain statements made by the prosecutor during argument at the evidentiary hearing on the motion to exclude. The prosecutor stated that Shotwell's statements were "certainly" coercive as to everyone except defendant, because he was already arrested and in handcuffs. The prosecutor further asserted defendant made the pre-Miranda confession because of his realization that he was already going to be arrested on the warrant. Defendant asserts that the prosecutor thus conceded Shotwell engaged in coercive interrogation techniques.

On appeal, however, this court is not bound by the trial court's findings as to the voluntariness of a confession and we must make our own independent review. (Massie, supra, 19 Cal.4th at p. 576; Holloway, supra, 33 Cal.4th 96, 114.) We have reviewed the entirety of the record and conclude that Shotwell did not threaten or coerce defendant when he made the statements outside the trailer which triggered defendant's pre-Miranda confession.

E. Defendant's second confession was admissible

Given our finding that defendant's initial, pre -Miranda confession was not involuntary or coerced, we conclude that his second, post-Miranda confession was admissible pursuant to Elstad. While the second post-Miranda interrogation occurred immediately after defendant's initial pre-Miranda confession, we find that defendant's initial statement was not involuntary and he was not subject to any coercion beyond the failure to administer Miranda warnings. After Shotwell gave the Miranda warnings, he further advised defendant that he had found "everything" for a sales case. Shotwell's advisement that the contraband was consistent with possession for sale was not a threat, but instead an accurate statement that defendant could face charges for possession for sale, rather than simple possession, if he admitted ownership of the contraband. Shotwell had found large amounts of methamphetamine, with multiple bindles already prepared for purposes of sale. Shotwell also found an apparent cutting agent, empty baggies, and scales containing white powdery substances. V. Defendant's confession and Seibert

As an alternative argument to Elstad, defendant argues that Shotwell's tactics in this case were consistent with the "deliberate two-step interrogation strategy" to question him first and advise him of the Miranda warnings later, disapproved by the United States Supreme Court in Seibert, supra, 542 U.S. 600. As we will explain, Seibert was a plurality opinion over which there is some disagreement as to the court's exact holding in that case.

A. Seibert

Seibert held that "[a] defendant's post-Miranda statements may be inadmissible if law enforcement officers use a two-step interrogation process. [Citation.]" (U.S. v. Narvaez-Gomez (9th Cir. 2007) 489 F.3d 970, 973.) In Seibert, the police woke up the defendant at 3:00 a.m., arrested her for murder, and took her to the police station for questioning. The police intentionally withheld the Miranda warnings and questioned the defendant for 30 to 40 minutes until she confessed. The police then gave her the Miranda warnings, continued the interrogation, confronted her with her pre-Miranda confession, and repeated the same questions until she confessed again. (Seibert, supra, 542 U.S. at pp. 604-606.)

"In Seibert, five justices, in three opinions, held Miranda warnings given midinterrogation, after a confession had already been obtained, were ineffective. Justice Souter[] ... described 'a police strategy adapted to undermine the Miranda warnings ....' [Citation.]" (People v. Rios (2009) 179 Cal.App.4th 491, 500, original italics (Rios).)

Justice Souter's plurality opinion in Seibert determined that the "repeated statement" obtained immediately after the police had first obtained an incriminating statement without giving Miranda warnings was inadmissible "[b]ecause this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda's constitutional requirement ...." (Seibert, supra, 542 U.S. at p. 604.) The plurality reasoned that "[t]he object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed." (Id. at p. 611.) Under the plurality approach, the circumstances to be considered include "the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first." (Id. at p. 615.)

In a concurring opinion, Justice Kennedy set forth a narrower test: "If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made." (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) Such curative measures might include "a substantial break in time and circumstances between the prewarning statement and the Miranda warning," and "an additional warning that explains the likely inadmissibility of the prewarning custodial statement." (Id. at p. 622.)

"As can be noted, the rule in Justice Souter's plurality opinion [in Seibert] differs from that in Justice Kennedy's concurring opinion. When a fragmented Supreme Court issues an opinion which does not have the assent of five justices, generally, the controlling holding is that of those who concurred in the judgment on the narrowest grounds. [Citations.]" (Rios, supra, 179 Cal.App.4th at p. 504.) The Ninth Circuit has concluded that "Justice Kennedy's concurrence in Seibert is the Court's holding because it is narrowest grounds with which majority of the Court would agree." (United States v. Narvaez-Gomez, supra, 489 F.3d at p. 974; U.S. v. Williams (9th Cir. 2006) 435 F.3d 1148, 1157-1158.) The Ninth Circuit's interpretation of Seibert has been cited with approval by this state's appellate courts. (See, e.g., People v. Camino (2010) 188 Cal.App.4th 1359, 1370-1371; Rios, supra, 179 Cal.App.4th at p. 505.)

Justice Kennedy's more narrow holding in Seibert has been summarized as follows: "A trial court must suppress postwarning confessions obtained during a deliberate two-step interrogation where the midstream Miranda warning-in light of the objective facts and circumstances-did not effectively apprise the suspect of his rights." (Williams, supra, 435 F.3d at p. 1157.) The reviewing court must determine whether the Miranda warnings were deliberately withheld, taking into account "any objective evidence or available expression of subjective intent suggesting that the officer acted deliberately to undermine and obscure the warning's meaning and effect." (Id. at p. 1160.) Objective evidence includes "the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and postwarning statements. [Citations.]" (Id. at p. 1159.)

If this determination is in the affirmative, the court must then "evaluate the effectiveness of the midstream Miranda warning" to determine, "based on objective evidence, whether the midstream warning adequately and effectively apprised the suspect that he had a 'genuine choice whether to follow up on [his] earlier admission.' [Citation.] In its analysis, the court should look both to the objective circumstances the [Seibert] plurality cited as 'bearing on whether Miranda warnings delivered midstream could be effective enough to accomplish their object,' [citation], and to the curative measures characterized by Justice Kennedy as 'designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning,' [citation]. [Citation.]" (Williams, supra, 435 F.3d at p. 1160.) "Thus, the court must address (1) the completeness and detail of the prewarning interrogation, (2) the overlapping content of the two rounds of interrogation, (3) the timing and circumstances of both interrogations, (4) the continuity of police personnel, (5) the extent to which the interrogator's questions treated the second round of interrogation as continuous with the first and (6) whether any curative measures were taken. [Citations.]" (Id. at p. 1160.)

"Notably, both the [Seibert]plurality and Justice Kennedy found significant that in giving [defendant] her Miranda warning, 'the police did not advise that her prior statement could not be used. [Citations.] Justice Kennedy also found particularly troubling the overlapping content of the officers' pre- and postwarning questions: 'reference to the prewarning statement [during the postwarning questioning] was an implicit suggestion that the mere repetition of the earlier statement was not independently incriminating. The implicit suggestion was false.' [Citation.] Finally, Justice Kennedy viewed the continuous nature of the interrogation relevant to the suspect's experience of interrogation, suggesting-again, as a curative measure-that a 'substantial break in time and circumstances' between pre- and postwarning questioning, would 'in most circumstances,... allow[ ] the accused to distinguish the two contexts and appreciate that the interrogation had taken a new turn.' [Citation.]" (Williams, supra, 435 F.3d at pp. 1160-1161.)

"On the other hand, where the court finds deliberateness to be absent, 'the admissibility of postwarning statements should continue to be governed by the principles of Elstad.' [Citation.]" (Williams, supra, 435 F.3d at p. 1161.)

B. Analysis

Defendant contends Deputy Shotwell employed the question first, advise later strategy disapproved in Seibert. Defendant argues that the fact that Shotwell conducted the search and interrogation occurred around 2:00 a.m. "strongly suggests calculated police action designed to subvert [defendant's] free will." Defendant further argues the setting reflected Shotwell's deliberative process since he interrogated defendant immediately after the search of the trailer instead of conducting a formal interrogation at the police station. Defendant argues Shotwell waited to give the Miranda warnings when there was very little incriminating for defendant to say, and Shotwell conducted both interrogations at the same place and immediately after the first interrogation.

We have already found that the occurrence of the search and interrogation around 2:00 a.m., by itself, did not render defendant's statements involuntary because defendant and his companions were clearly awake and not suddenly confronted by deputies serving an arrest warrant. Defendant's other arguments implicate the factors set forth in the plurality opinion in Seibert, that both interrogations were conducted at the same location by the same officer.

Given the entirety of Shotwell's testimony, we find Shotwell did not employ a "deliberate two-step strategy" in this case. (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) Shotwell did not intentionally engage in the same type of egregious conduct as used by the officers in Seibert, and he did not testify that he was trained to, or deliberately engaged in, the tactic of questioning first, and advising the suspect of the Miranda warnings later. Shotwell testified that he was clearly trying to find out which person or persons were responsible for the methamphetamine and contraband he had just found in the trailer, in order to decide who he was going to arrest. There was no substantial break in time and circumstances between the prewarning statement and the Miranda warning, since Shotwell admitted that he gave the Miranda warnings within 15 to 20 seconds after defendant gave his pre-Miranda confession.

While Shotwell conducted both interrogations, he fully advised defendant of the Miranda warnings and defendant agreed to answer questions. Shotwell never cited to defendant's initial confession or simply asked him to reconfirm his statements. Instead, Shotwell asked defendant "whose dope" or "whose stuff" was inside the trailer. Shotwell showed defendant the bag of methamphetamine, and told defendant that he found needles, scales, and "everything" for a sales case. Defendant replied that "it's where I live, I'll claim everything."

By advising defendant of both the Miranda warnings and the indicia of sales, Shotwell expressly warned defendant that while he might have been initially willing to admit to simple possession, defendant was actually facing the more serious charge of possession for sale. Shotwell's additional admonishment about the potential seriousness of the charges served as the type of curative measure and additional warning contemplated by Justice Kennedy's concurrence in Seibert. (See Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).)

VI. Admission of evidence about the felony warrant

Defendant next contends the trial court should have excluded Deputy Shotwell's testimony that he arrested defendant on an arrest warrant. Defendant concedes defense counsel failed to object, and raises the alternative argument that counsel was prejudicially ineffective for failing to object. Defendant argues Shotwell's testimony about the warrant constituted inadmissible character evidence and was prejudicial to the ultimate issue of whether defendant knowingly possessed the methamphetamine for purposes of sale.

A. Evidentiary Motions

Prior to trial, defense counsel did not move to exclude any evidence as to the reason Deputy Shotwell entered the trailer. During trial, Deputy Shotwell testified he went to the Lake Isabella Road property to serve an arrest warrant on defendant, he entered the trailer and arrested defendant on the warrant, defendant questioned the warrant, and defendant was placed in handcuffs.

During a recess, outside the jury's presence, the prosecution moved to introduce additional evidence about the arrest warrant, that it was for possession of methamphetamine. Defense counsel replied that defendant had already suffered prejudice from evidence of the arrest warrant, and asserted that he would move for a mistrial if the court admitted evidence about the nature of the warrant. Defense counsel advised the court that the charges based on the arrest warrant had been subsequently dismissed.

The court denied the prosecutor's motion to introduce the reason for the arrest warrant, and noted the parties had already decided to stipulate that defendant knew what methamphetamine was. The court found the underlying nature of the arrest warrant was not proof of any relevant fact, and the potential prejudice outweighed any probative value.

B. Stipulation and instructions

At the conclusion of the evidentiary portion of the trial, the prosecutor advised the jury that the parties had stipulated that "defendant knows the nature and character of methamphetamine as a controlled substance. This is an admission of element number three to both counts." Defense counsel concurred with the stipulation.

Thereafter, the court instructed the jury pursuant to CALCRIM No. 303, that certain evidence was admitted for a limited purpose, the parties stipulated defendant knew the nature and character of methamphetamine, and the jury could not consider the stipulation for any other purposes.

The court also instructed the jury not to speculate "as to what the felony arrest warrant was for or to its validity or outcome."

The court further instructed the jury with CALCRIM No. 101, not to let bias, prejudice, or public opinion influence their decision, CALCRIM No. 200, to follow and pay careful attention to the law and the court's instructions, and CALCRIM No. 222, defining evidence as the sworn testimony of witnesses and exhibits introduced into evidence.

C. Marsden hearing

While the jury was deliberating, defense counsel informed the court that defendant wanted to make a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden)to discharge his appointed counsel. The court granted the request and conducted a Marsden hearing.

During the Marsden hearing, defendant complained the jury should have been told there were problems on the warrant and that case was thrown out. The court replied that it had denied the prosecutor's motion to introduce evidence that the arrest warrant was for possession of methamphetamine. Defendant again complained "the felony warrant shouldn't have been brought up, period, in this case."

The court asked defense counsel to response and she said: "With respect to introducing the felony warrant, I will admit that was an error on my mistake [sic]. Hopefully, however, the jury instructions would have cured that." The court denied defendant's Marsden motion and found defense counsel provided adequate representation.

D. Analysis

Defendant contends the court should have excluded Deputy Shotwell's testimony that he arrested defendant on an outstanding arrest warrant. Defendant argues Shotwell's testimony constituted inadmissible character and propensity evidence, the evidence was prejudicial, and admission of the evidence violated his due process rights. "Generally, the prosecution may not use a defendant's prior criminal act as evidence of a disposition to commit a charged criminal act. (Evid. Code, § 1101, subd. (a).) But evidence is admissible " 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge ...) other than his or her disposition to commit such an act.' (Evid. Code, § 1101, subd. (b).)" (People v. Davis (2009) 46 Cal.4th 539, 602.)

As defendant acknowledges, defense counsel did not object to admission of Shotwell's testimony about the existence of the arrest warrant on any ground. Therefore, defendant did not preserve these points for direct appellate review. (People v. Alexander (2010) 49 Cal.4th 846, 912; People v. Mills (2010) 48 Cal.4th 158, 194; People v. Thornton (2007) 41 Cal.4th 391, 430, fn. 6 [failure to object to admission of character evidence forfeited point on appeal]; People v. Daniels (2009) 176 Cal.App.4th 304, 320, fn. 10 [constitutional claim forfeited due to absence of objection on this specific ground below].)

In the alternative, defendant contends defense counsel was prejudicially ineffective for failing to object to Deputy Shotwell's testimony about the existence of the arrest warrant. As explained ante, "[t]o establish ineffective assistance, defendant bears the burden of showing, first, that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel's error, it is reasonably probable that the verdict would have been more favorable to him. [Citations.]" (People v. Hawkins, supra, 10 Cal.4th 920, 940.)

Generally, the failure to object is considered a matter of trial tactics "as to which we will not exercise judicial hindsight. [Citation.]" (People v. Kelly (1992) 1 Cal.4th 495, 520.) There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation]." (Strickland, supra, 466 U.S. at p. 689; People v. Lucas (1995) 12 Cal.4th 415, 436-437.) The presumption is not applicable in this case, however, given defense counsel's statements at the Marsden hearing, that she should have objected to Shotwell's testimony about the existence of the arrest warrant.

We find that defense counsel's failure to object to Shotwell's testimony about the existence of the arrest warrant was not prejudicial. It is undisputed that Shotwell found large amounts of methamphetamine in the trailer, some of which had been packaged in individual bindles. He also found scales with white powdery substances on top of them, a bag of cutting agent, and empty baggies. Defendant was found in possession of a large amount of cash. The jury heard admissible evidence that Shotwell asked defendant if the contraband belonged to him, and advised defendant that the evidence was consistent with a sales case. Defendant claimed responsibility for everything in the trailer, and the parties stipulated that defendant knew the nature and character of methamphetamine. In addition, the prosecutor did not discuss the arrest warrant in closing argument, and the jury was expressly instructed not to speculate "as to what the felony arrest warrant was for or to its validity or outcome."

We presume the jury followed the court's limiting instruction about the arrest warrant (People v. Sanchez (2001) 26 Cal.4th 834, 852), and find that any evidentiary inferences that may have arisen from Shotwell's testimony about the arrest warrant were not prejudicial in light of the entirety of the record. VII. The court's failure to give a Dewberry instruction

Defendant was charged and convicted of count I, possession of methamphetamine for sale, and the lesser included offense of count II, possession of methamphetamine. Defendant contends the court had a sua sponte duty to instruct the jury pursuant to People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry), that if the jury had a reasonable doubt as to which of the two offenses defendant committed, it could only convict defendant of the lesser included offense of count II.

Section 1097 states that "[w]hen it appears that the defendant has committed a public offense, or attempted to commit a public offense, and there is reasonable ground of doubt in which of two or more degrees of the crime or attempted crime he is guilty, he can be convicted of the lowest of such degrees only." Dewberry held that a criminal defendant is entitled to the benefit of a jury's reasonable doubt as to all crimes with lesser included offenses. (Dewberry, supra, 51 Cal.2d at pp. 556, 557.) "[W]hen the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense." (Id. at p. 555.)

The trial court has a sua sponte duty to give a Dewberry instruction when a defendant is charged with greater and lesser included offenses. (People v. Aikin (1971) 19 Cal.App.3d 685, 704, disapproved on other grounds in People v. Lines (1975) 13 Cal.3d 500, 514; People v. Barajas (2004) 120 Cal.App.4th 787, 793.) The omission of a Dewberry instruction can be cured by a reading of other relevant jury instructions. (People v. Crone (1997) 54 Cal.App.4th 71, 77.)

The failure to give a Dewberry instruction requires reversal only if it is reasonably probable that defendant would have received a more favorable verdict if the instruction had been given. (Dewberry, supra, 51 Cal.2d at p. 548; People v. Crone, supra, 54 Cal.App.4th 71, 78-79; People v. Reeves (1981) 123 Cal.App.3d 65, 70, disapproved on other grounds in People v. Sumstine (1984) 36 Cal.3d 909, 919.) In the context of this case, a more favorable verdict would have been a conviction for count II, simple possession instead of count I, possession for sale. (Dewberry, supra, 51 Cal.2d at pp. 555-556.)

In the instant case, the parties agree the court failed to give any type of Dewberry instruction, and they disagree as to the impact of that omission. We agree with the People that the error was not prejudicial in this case. As we have explained, Deputy Shotwell found a large amount of methamphetamine in the trailer, some of which was already packaged for sale. Defendant was sitting next to the brown leather pouch which contained the bindles, and he was sitting on the mattress underneath which the other bag of methamphetamine was bound. Shotwell also found a bag of cutting agent, scales with white powdery substances, and baggies. Defendant possessed a large amount of cash. Deputy Shotwell asked defendant if the drugs belonged to him, advised him that he had found indicia of sales, and defendant claimed everything found in the trailer because he was staying there. Defendant also stipulated that he knew the nature and character of methamphetamine. We find that the court's failure to give a Dewberry instruction was not prejudicial in light of the entirety of the evidence.

VIII. Conviction of greater and lesser offenses

Defendant contends, and the People concede, defendant was improperly convicted of both count I, possession of methamphetamine for sale, and the lesser included offense in count II, possession of methamphetamine. Defendant's conviction in count II must be reversed and the sentence and fines imposed for that count must be stricken.

IX. Defendant's motion for return of the money seized from his person

Defendant next argues the court improperly denied his postverdict motion for return of the cash seized from his person at the time he was arrested in the trailer. As we will explain, the court and the parties were confused about how to address this issue.

A. Defendant's motion

As explained ante, Deputy Shotwell arrested defendant in the trailer on the outstanding arrest warrant. Shotwell searched defendant's body incident to the arrest and found $580 in defendant's pants pocket, in denominations of $10, $20, $50, and $100 bills. During the trial, the prosecution introduced three photographic exhibits depicting the methamphetamine, the cash found in defendant's pocket, and the other contraband found in the trailer. The cash itself was not introduced into evidence.

After the verdicts were returned, defendant filed a motion for return of the $580 in cash seized from his pockets when he was arrested. Defendant argued the court had the nonstatutory ability to order the return of property to a party. Defendant's motion was based on sections 1417.5 and 1417.6, which provide for the return of court exhibits after the conclusion of a trial. Defendant argued the cash was not property "possession of which is prohibited by law," the cash need not be retained for any investigative or lawful purposes, and the cash was not subject to forfeiture.

B. The court's hearing on the motion

At the sentencing hearing, the court denied probation and sentenced defendant to two years in prison. The court then turned to defendant's motion for return of the cash seized from him when he was arrested. Defense counsel declared the cash was from defendant's disability payments, and argued there was no evidence the cash was obtained from methamphetamine sales. The prosecutor replied the cash could not be returned because it was used in the commission of the crime for which defendant was convicted, possession for sale. "The People would never agree to give money back in a situation like this where I feel it's overwhelmingly apparent that that's where this money came from," since defendant had "a veritable ton of methamphetamine. It's packaged for sale. He has the money on him. We have the scales and we have the cutting agent."

The court asked the prosecutor to explain what normally happened with money in such a case, and whether a forfeiture action would be brought. The prosecutor said that his office could bring a civil motion for forfeiture, and added that defense counsel declared that such an action had not been filed. The prosecutor said he "wouldn't even know where to look" to find out if a forfeiture action had been filed in this case, "other than calling my civil unit." The court asked the clerk if she was familiar with the asset forfeiture calendar, and the clerk said no.

The court noted that section 1417.6 prohibited return of property if possession was prohibited by law and it was used in the commission of the crime for which the defendant was convicted. The court denied defendant's motion and found that section 1417.6 did not support an order to return property since the cash was a fruit of the crime and evidence of sales: "May be used or may be possessed to make change for purchase of quantities of meth. You're talking about 17 separate baggies. It's all part of the indicia of sales."

On appeal, defendant raises contradictory arguments. He first declares that his defense counsel erroneously relied on sections 1417.5 and 1417.6 to move for the return of his cash, and asserts that these provisions were inapplicable to this case. However, defendant also declares that the prosecutor relied on these same statutes to obtain forfeiture of his cash, and argues the prosecutor should have instead brought a forfeiture motion pursuant to Health and Safety Code section 11470 et seq. Defendant argues the court violated his due process rights when it denied his motion for return of the cash because it effectively permitted the forfeiture of his cash to the state, even though the prosecutor failed to comply with the strict statutory forfeiture provisions. Defendant argues this court must grant relief and order return of the cash based on the prosecution's failure to comply with the civil forfeiture statute.

C. Civil forfeiture

We begin with the statutory procedures for civil forfeiture. Defendant is correct that "[t]he procedure for the forfeiture of property connected with unlawful drug transactions is governed by [Health and Safety Code] sections 11470 through 11489. Moneys, negotiable instruments, securities, or other things of value which are the proceeds of a drug transaction, or are used to facilitate the violation of controlled substance laws, are subject to forfeiture. [Citation.] [¶] [Health and Safety Code s]ection 11488.4, subdivision (a), requires the district attorney to file a petition of forfeiture with the superior court of the county in which the defendant has been charged with the underlying criminal offense 'as soon as practicable, but in any case within one year of the seizure of the property which is subject to forfeiture [Citation.] Thereafter, the burden is on the government to prove the property is subject to forfeiture. [Citation.]" (People v. $10,153.38 in U.S. Currency (2009) 179 Cal.App.4th 1520, 1524.)

"[Health and Safety Code s]ection 11488.4 provides for different procedures based on the value of the property at issue.... [¶] Where the property at issue has a value of less than $25,000 and a claim opposing forfeiture of the property is filed, the defendant must be convicted in the underlying criminal case and the People must prove the forfeiture issue beyond a reasonable doubt in the same trial. [Citations.]" (People v. $10,153.38, supra, 179 Cal.App.4th at pp. 1524-1525.)

"Thus, where the property at issue is valued at less than $25,000 and a conviction in the underlying criminal case is required for forfeiture, [Health and Safety Code] section 11488.4, subdivisions (i)(3) and (5), requires trial of the forfeiture issue in conjunction with the trial of the underlying criminal case. The provisions further require the forfeiture issue be tried by jury, unless waived, by the same jury or trial court that tried the criminal case, unless waived by all parties, and the trial of the forfeiture issue shall be bifurcated from the trial of the underlying criminal case, unless waived by all parties." (People v. $10,153.38, supra, 179 Cal.App.4th at p. 1525.)

Defendant argues the prosecution failed to comply with the civil forfeiture provisions and the court should have granted his motion for return of the cash. Defendant's arguments on these points are internally inconsistent. There was no evidence before the superior court, or in the instant appellate record, that the People filed any type of forfeiture action as to the $580 seized from defendant when he was arrested. The issue of forfeiture was never before the superior court, and the People were not required to comply with a statutory procedure that had not been initiated. If the People had instituted a forfeiture action, defendant would have presumably filed opposition and he would have been entitled to a jury trial on the forfeiture matter, subject to proof beyond a reasonable doubt. Since there is no evidence that a civil forfeiture action was filed, the People were not required to comply with the provisions of Health and Safety Code section 11470 et seq. at the hearing in this case.

We further note that a forfeiture action for property with a value less than $25,000 requires trial of the forfeiture action "in conjunction with the criminal case by the same finder of fact that tried the criminal case. [Citations.]" (People v. $10,153.38, supra, 179 Cal.App.4th at p. 1526.) The failure to try a forfeiture action in conjunction with defendant's jury trial on the substantive charges has apparently resulted in the trial court losing jurisdiction of any subsequently-filed forfeiture petition. (Ibid.)¹⁷

17 We note that Health and Safety Code section 11473, subdivision (a) allows the trial court to summarily order the destruction of property seized pursuant to Health and Safety Code section 11470, except for "seizures of moneys."

D. Sections 1417.5 and 1417.6

Based on the current state of the appellate record, a forfeiture action was never at issue in this case. Instead, defendant filed a postverdict motion for return of property, and the court denied that motion because it found the cash seized from defendant was used for the sale of methamphetamine. We will examine the basis for defendant's motion.

"Persons may not be deprived of property without due process of law, nor may the Legislature expropriate private property by mere legislative enactment. [Citations.] 'The right to regain possession of one's property is a substantial right which may not be dependent upon the whim and caprice of a court....' [Citation.] Continued official retention of legal property with no further criminal action pending violates the owner's due process rights." (People v. Lamonte (1997) 53 Cal.App.4th 544, 549 (Lamonte).)

Defendant's motion to return the cash was based on sections 1417.5 and 1417.6. These provisions have been described as providing for "a nonstatutory motion to return property that would have been used as an exhibit in a trial .. " (People v. Hopkins (2009) 171 Cal.App.4th 305, 308 (Hopkins).)¹⁸ Section 1417.5 states that, "[e]xcept as provided in Section 1417.6, 60 days after the final determination of a criminal action or proceeding, the clerk of the court shall dispose of all exhibits introduced or filed in the case and remaining in the clerk's possession ...." (Italics added.) Section 1417.6, subdivision (a) excludes from return to the defendant "any dangerous or deadly weapons, narcotic or poisonous drugs, explosives, or any property of any kind of character whatsoever the possession of which is prohibited by law and that was used by a defendant in the commission of the crime of which the defendant was convicted ...." (Italics added.)

18 Lamonte acknowledged that property "used in the manufacture, sale, delivery, import or export of controlled substances" is subject to forfeiture pursuant to Health and Safety Code section 11470 et seq. (Lamonte, supra, 53 Cal.App.4th at p. 550, fn. 8.) As we have explained, however, there is no evidence that a forfeiture petition was filed in this case.

We note that the cash seized from defendant was not introduced into evidence at his trial. Instead, the prosecution introduced photographs of the cash and other contraband. This fact, however, does not foreclose the application of sections 1417.5 and 1417.6 in this case. A criminal defendant may bring motion pursuant to sections 1471.5 and 1471.6 for return of "property seized by warrant or incident to arrest, which was not introduced into evidence but remained in possession of the seizing officer. [Citation.]" (Hopkins, supra, 171 Cal.App.4th at p. 308.) "[F]or purposes of lawful disposition of property, there is no reason to distinguish between seized property used as exhibits and seized property which was not used, since both were seized by a public officer, acting under color of his status as a law enforcement officer, and seized solely on the theory that it constitutes a part of the evidence on which judicial action against its owner or possessor will be taken. [Citation.]" (Ibid., fn. 1.) In addition, sections 1417.5 and 1417.6 do not authorize retention of property not otherwise illegal to possess simply because the property has been used in the commission of a crime. (Lamonte, supra, 53 Cal.App.4th at p. 533.)

E. Appellate review of the court's order

Defendant has filed a notice of appeal from his convictions for possession for sale and possession of methamphetamine. In the course of this appeal, he has challenged the court's denial of his motion for return of the cash. However, "[a]n order denying a motion for return of property-whether or not the property has been admitted as evidence in a criminal trial-is not among the matters for which an appeal is permitted under ... section 1237. That section authorizes appeals from 'any order made after judgment, affecting the substantial rights of the parties.' [¶] A motion for return of property is a separate procedure from the criminal trial and is not reviewable on an appeal from an ultimate judgment of conviction. [Citation.] If the 'separate proceeding' of a motion for return is regarded as a criminal proceeding, for which the right to appeal is governed by . section 1237, an order denying the motion is nonappealable because such an order is not listed among any of the matters for which an appeal is authorized by ... section 1237. [Citations.]" (Hopkins, supra, 171 Cal.App.4th at p. 308.) Instead, the "proper avenue of redress" is through a petition for writ of mandate instead of an appeal. (Ibid.)

We thus decline to address the denial of defendant's motion for return of property since it is a nonappealable order. (Hopkins, supra, 171 Cal.App.4th at p. 308.)

X. Conduct credits

Defendant's final issue is based on the court's calculation of his conduct credits at the December 10, 2009, sentencing hearing. The court awarded defendant 95 days of actual credit and 46 days of conduct credit, for a total of 141 days. Defendant contends he was entitled to the calculation of credit based on the subsequent amendment to section 4019.

When defendant was sentenced on December 10, 2009, the court calculated his conduct credit in accord with the version of section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.) The Legislature, however, amended section 4019, effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7, subdivision (c) or a violent felony as defined in section 667.5, subdivision (c), may accrue additional conduct credits. (See § 4019, subds. (b)(1) and (c)(1)). From the probation report, it does not appear that defendant has been convicted of a serious or violent felony.

We find that the amendment to section 4019 applies prospectively only.¹⁹ Under section 3, it is presumed that a statute operates prospectively " 'absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application]. [Citation.]' [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by " ' "clear and compelling implication" ' " from any other factor(s), that it intended the amendment operate retroactively. (Id. at p. 754.) Therefore, the amendment applies prospectively only.²⁰

19 We decide this case according to our opinion in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, which is currently before the California Supreme Court, along with its companion case, People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.

20 The Legislature again amended section 4019, effective September 28, 2010, and the latest amendment is expressly prospective-only. (Stats. 2010, ch. 426, § 2.) The amendment restores the earlier credit scheme.

We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the amendment to section 4019.

We also conclude that prospective-only application of the amendment does not violate defendant's equal protection rights. One of section 4019's principal purposes, both as formerly written and as amended, is to motivate good conduct. Defendant and those like him who were sentenced prior to the effective date of the amendment cannot be further enticed to behave themselves during their presentence custody. The fact that a defendant's conduct cannot be influenced retroactively provides a rational basis for the Legislature's implicit intent that the amendment only apply prospectively.

Since the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)

DISPOSITION

Defendant's conviction in count II for possession of methamphetamine is reversed and the sentence imposed for that conviction stricken. In all other respects, the judgment is affirmed.

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Poochigian, J.

WE CONCUR:

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Dawson, Acting P.J.

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Kane, J.