Opinion
D070111
02-16-2017
THE PEOPLE, Plaintiff and Respondent, v. GREGORY BAKER, Defendant and Appellant.
William P. Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD260937) APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed as modified. William P. Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
I
INTRODUCTION
The trial court convicted Gregory Baker of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), carrying a concealed firearm in a vehicle (Pen. Code, § 25400, subd. (a)(1)), and driving while under the influence of a drug (former Veh. Code, § 23152, subd. (e), now Veh. Code, § 23152, subd. (f)). The court further found true an allegation Baker had sustained a prior conviction for driving under the influence of alcohol within the last 10 years (Veh. Code, §§ 23152, subd. (a), 23540, subd. (a)). The court suspended imposition of sentence for five years and placed Baker on formal probation.
Baker appealed and his court-appointed counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436, 441-442 (Wende) requesting we independently review the record for error. We requested the parties submit letter briefs addressing whether the order granting probation should be modified to indicate, in conformance with the court's oral pronouncement of sentence, the order's search conditions do not extend to cell phones or electronic devices. Both parties agree the order should be modified in this manner and we direct the court to do so. We affirm the judgment in all other respects.
II
BACKGROUND
A
A patrol officer saw a car stopped in the midst of a heavy flow of traffic. The officer approached the car and found Baker slumped down inside sleeping while the car was in gear and his foot was on the brake pedal. The officer opened the car's driver's side door and Baker woke up disoriented and confused. He did not know the correct date and he believed he was in New Mexico. His eyes were glassy and fluttering, he had burn marks on his thumb and forefinger typical of someone who smokes narcotics, and he admitted to regularly using narcotics. In addition, his speech was slurred, his movements were slow, and he was unsteady on his feet.
The officer checked his pulse rate, which was high. The officer also administered horizontal and vertical gaze nystagmus tests to him, the results of which were consistent with him being under the influence of a central nervous system depressant. A urine sample taken from him after his arrest tested positive for the presence of multiple drugs, including methamphetamine and heroin.
While Baker was still in his car, the officer noticed a round of ammunition in the center console. When the officer asked about it, Baker said it was a gift. He also said he had a gun in the car's trunk. The officer later searched the trunk and found a revolver under the spare tire.
B
Before trial, Baker moved to dismiss counts 1 and 2 on two grounds. First, he argued his only underlying felony, a 2011 conviction for petty theft with a prior, had been reduced to a misdemeanor under Penal Code section 1170.18, subdivisions (f) and (g), after the prosecution filed this case. Second, he argued Penal Code section 1170.18, subdivision (k), which authorizes a felon in possession of a firearm conviction against a person who has had an offense designated a misdemeanor under subdivision (g), violates his equal protection rights. The court rejected these arguments and denied the motion.
Penal Code section 1170.18 was enacted as part of the Safe Neighborhoods and Schools Act (Proposition 47). (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.) Subdivisions (f) and (g) of Penal Code section 1170.18 provide: "(f) A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors. [¶] (g) If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor."
Penal Code section 1170.18, subdivision (k) provides: "Any felony conviction that is ... designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6." (Italics added.)
C
Section 6.n. of the standard order granting probation requires a defendant to "[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media ... to search at any time with or without a warrant, and with or without reasonable cause, when required by [a probation officer] or law enforcement officer." During the sentencing hearing, defense counsel objected to any extension of this condition to electronic devices. However, the prosecution argued the condition encompassed electronic devices and requested the court impose the condition.
When the court orally pronounced the sentence, it imposed the condition. However, the court clarified, "The Court does not find at the present time that there is any nexus between [Baker's] personal effects other than being able to search his residence, his place that he's residing, for firearms, things of that nature. But the Court does not extend that to his electronic devices." Section 6.n. of the order granting probation includes no modifications reflecting the court's limitation.
While this appeal was pending, appointed appellate counsel filed a letter with the trial court requesting the court modify the order granting probation to conform to the court's oral pronouncement of sentence. The court denied the request, finding it lacked jurisdiction to modify the order while this appeal was pending.
Baker's motion for judicial notice of appellate counsel's letter and the court's response is granted. (Evid. Code, §§ 452, subd. (d); 459, subd. (a).) --------
III
DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and proceedings below. Counsel presented no argument for reversal and instead requested we independently review the record for error as mandated by Wende, supra, 25 Cal.3d at pages 441-442.
To aid our review, and consistent with Anders v. California (1967) 386 U.S. 738, 744, counsel identified four possible appellate issues (Anders issues):
1. Did the court err by denying Baker's motion to set aside the felon in possession of a firearm charge in count 1 of the information since the underlying conviction for petty theft with a prior had been designated a misdemeanor? (Contra, Pen. Code, § 1170.18, subd. (k).)
2. Does Penal Code section 1170.18, subdivision (k), violate federal and state equal protection rights? (See People v. Morales (2016) 63 Cal.4th 399, 408 [persons convicted before Proposition 47 are not similarly situated to persons convicted after Proposition 47, and voters may impose a price for the benefits of favorable resentencing under Proposition 47].)
3. Was there sufficient evidence to support Baker's conviction for driving under the influence of a drug? (See People v. Canty (2004) 32 Cal.4th 1266, 1278 [a person is guilty of driving under the influence of drugs if the drugs affect the person's nervous system, brain, or muscles enough to appreciably impair the person's ability to operate a vehicle in a nonnegligent manner].)
4. Should the order granting probation be modified to indicate, in conformance with the court's oral pronouncement of sentence, that the order's search conditions do not extend to electronic devices?
We requested the parties submit letter briefs addressing the last Anders issue. In their briefs, both parties agreed the order granting probation must be modified to indicate the search conditions in section 6.n do not extend to electronic devices, and we shall direct the court to make this modification. (See People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14 [an appellate court has the inherent power to correct an error causing a judgment not to conform to the trial court's oral pronouncement of sentence].)
In addition to requesting letter briefs addressing the last Anders issue, we granted Baker permission to file a supplemental brief on his own behalf. He has not done so.
We also conducted an independent review of the record, including considering the first three Anders issues identified by appointed appellate counsel. Our review did not disclose any other reasonably arguable appellate issues. Baker has been competently represented by counsel in this appeal.
IV
DISPOSITION
The court is directed to modify the order granting probation to indicate, in conformance with the court's oral pronouncement of sentence, the search conditions in item 6.n. do not extend to electronic devices. The court is further directed to forward a copy of the modified order to the San Diego County Probation Department. In all other respects, the judgment is affirmed.
McCONNELL, P. J. WE CONCUR: NARES, J. HALLER, J.