Opinion
A146956
04-03-2018
THE PEOPLE, Plaintiff and Respondent, v. SHAWN PHILIP BUXTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC082742A)
Shawn Philip Buxton appeals from a conviction of possession of methamphetamine for sale. He contends the trial court erred in denying his motion to suppress evidence. He further contends the court erred in finding that he knowingly and intelligently waived his right to a jury or court trial on alleged prior convictions and in imposing a sentence enhancement based on a prior felony after that felony was reduced to a misdemeanor under Proposition 47. We agree with the last of these contentions. Accordingly, we will affirm the conviction and modify the judgment to strike the sentence enhancement.
STATEMENT OF THE CASE
Appellant was charged by information filed on February 9, 2015, with possession of methamphetamine for sale. (Pen. Code, § 11378.) It was alleged that he had suffered four prior felony convictions for possession of controlled substances (§§ 11350, subd. (a); 11377, subd. (a)), rendering him ineligible for probation (§ 1203, subd. (e)(4)), and served one prior prison term (§ 667.5, subd. (b)). Appellant entered a plea of not guilty and denied the priors.
Further statutory references will be to the Penal Code.
Appellant filed a motion to suppress evidence (§ 1538.5), which was denied after a hearing. On August 14, 2015, a jury found appellant guilty of possession for sale. On August 24, the court found that appellant had admitted the prior convictions, which had recently been reduced to misdemeanors under Proposition 47. Appellant was sentenced on November 20 to the upper term of three years in prison, plus a consecutive one-year term for the prior prison term, with the sentence to be served two years in custody and two on mandatory supervision.
Appellant filed a timely notice of appeal on November 23, 2015.
STATEMENT OF FACTS
On August 14, 2014, the San Mateo County Narcotics Task Force served a search warrant for Charles Ginsberg at 222 Vermont Avenue in Half Moon Bay. Some of the agents knocked at the front door, announced their presence and demanded entry, and were told, "The door is unlocked. Come on in." Meanwhile, Sergeant Clint Simmont noticed that one of the garage doors, which opened out like "barn doors," was six inches to a foot open. He opened the door a bit, saw appellant standing in the middle of the garage, ordered him to exit the garage and, when appellant came out, detained him in handcuffs. Two of the three occupants of the house, Madonna Lopez and Robert Ketchum, were also detained in handcuffs; the third, Theodore Schneider, was in a hospital bed in the living room was "let be."
Simmont and other agents searched the garage, which Simmont described as containing chairs and a table, a desk, a musical keyboard and other items such as tools, clothing, bike parts and old furniture toward the back. The search focused on the desk, because a "K-9" dog trained to detect narcotics gave a "strong alert" to the area of the desk. Simmont found an Ohio identification card in the right drawer and, in the center drawer, a digital scale, a methamphetamine pipe, a couple of broken marijuana pipes and "pay-owe" sheets. The left drawer was locked. Simmont asked appellant for the key, which appellant provided on a key chain with other keys. Inside the drawer, Simmont found a green container holding "a lot of small, little Ziploc bags that we typically see narcotics packaged in," unused. There was also a small metal tin containing three packages of methamphetamine, packaged in the same type of bags as the unused ones, and $210 in cash. It was subsequently determined that the total weight of the three baggies of methamphetamine was 3.042 grams; the net weight of the methamphetamine in one of the baggies was 1.690 grams.
Appellant waived his Miranda rights and told Simmont that he was a methamphetamine user and the items were for his own use. He said he used the scale to weigh out his own methamphetamine and used the brand-new Ziploc bags for beads. The agents did not find large quantities of beads in the room; there were 10 or 11 beads in the desk, but in a different type of Ziploc baggie. Appellant told Simmont that he had been unemployed for about a year and worked as a caretaker for Schneider, in exchange for living there rent free and $200 per month. Appellant was arrested. He told Simmont that he had additional methamphetamine in his pocket, which Simmont observed was in the same type of Ziploc bag as the unused bags and the two packages of methamphetamine found in the desk. The net weight of the methamphetamine was determined to be .494 grams.
Sergeant Simmont, testifying as an expert in the area of possession of methamphetamine for sale versus personal use, opined that the methamphetamine found in appellant's desk and pocket were possessed for the purpose of sale. This belief was based on a combination of circumstances: The presence of unused packaging of the same type as that containing the methamphetamine indicated appellant had placed the methamphetamine in the bags; the scale would help accomplish this task; the amounts in the bags were consistent with amounts to be sold; appellant did not have a source of income sufficient to support a methamphetamine habit; and in Simmont's experience, street level methamphetamine sellers were also users.
DISCUSSION
I.
Appellant challenges the denial of his motion to suppress evidence, arguing that the search of the garage violated his rights under the Fourth Amendment to the United States Constitution because the warrant for Charles Ginsberg did not authorize the search of appellant's separate living quarters.
" 'Pursuant to article I, section 28, of the California Constitution, a trial court may exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the federal Constitution.' (People v. Banks (1993) 6 Cal.4th 926, 934.) The Fourth Amendment to the federal Constitution prohibits unreasonable searches and seizures. (See Banks, at p. 934.)" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 365.)
" ' "In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review." [Citation.] On appeal we consider the correctness of the trial court's ruling itself, not the correctness of the trial court's reasons for reaching its decision. [Citations.]' (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145 (Letner).)" (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 364-365.)
Appellant testified at the suppression hearing that the house was owned by Theodore Schneider, who was bedbound and used the living room as his room, and the two bedrooms in the house were rented, one to Charles Ginsberg and the other to Madonna Lopez. Appellant worked as a caregiver for Schneider in return for which Schneider allowed appellant to live in the attached garage and gave him "a little bit of cash." At the time, Robert Ketchum was also staying at the house, sleeping on a chair in the living room.
Simmont testified that Schneider told him he had previously owned the house but sold it to a neighbor and now rented it with roommates.
Appellant testified that he was the only person with a key to the exterior door of the garage, and neither he nor anyone else had a key to the interior door between the garage and the house. Appellant kept everything he owned in the garage, including his clothes and a desk with a drawer that locked, and he did not keep personal items in any other part of the home. There was no bed in the garage but he slept there "from time to time" on a cot on the floor. He also slept in Lopez's room "from time to time" and acknowledged that he told an agent that he "shared" that bedroom with her. The agents did not find any of appellant's personal items in Lopez's room or elsewhere in the house. There was no kitchen or bathroom in the garage, and appellant used the bathroom in the house. The garage did not have a separate residential number from the house or a separate mailbox.
Appellant testified that about 7:00 a.m. on August 14, 2014, the exterior garage door was open about six inches. He had come in to get his cigarettes and was about to return to Lopez's room to watch a movie with her, but was prevented by two officers with semi-automatic weapons coming in and telling him not to move. The officers said they had a search warrant and "[j]ust about immediately" put appellant in handcuffs and detained him about six feet from the garage door, in front of the front door to the house. Appellant told the officers that the garage was his room, that no one else went in, and that he did not understand why they could search his property. He repeatedly asked to see the search warrant, asked if he was named in it and stated that he did not want them to search the garage. When an agent asked if appellant had a key to the locked desk drawer in the garage, saying that the police dog had reacted to something, appellant gave him the key because the officer had said that if he did not, they were going to "rip my desk apart."
Sergeant Simmont testified that he asked appellant for the key to the desk drawer after finding a scale and two identification cards belonging to appellant in the desk. Schneider "didn't provide a solid answer" to whether appellant was a "specified caregiver" but said appellant "helps him out from time to time." Simmont doubted appellant's statement that Lopez's room was his bedroom because none of appellant's belongings were there. It did not appear that Ginsberg's room could be occupied by anyone, as it was "piled about three feet with debris." According to Simmont, appellant did not say he did not want the agents to search the garage.
Simmont believed the garage was a "common area" for several reasons: It was "commonly accessible"; the desk drawer in which the methamphetamine was found was locked, which was typically done in a common area to prevent access by others but would not be expected within an area that was itself locked; and there were ashtrays on the table that were "fairly full" of what Simmont recalled as different brands of cigarette butts. Simmont thought appellant "seemed to indicate that that was a common area as well" but he did not document the point because it did not seem important at the time. There were male clothes hanging in the garage but Simmont did not determine who they belonged to.
As appellant acknowledges, " ' " [A] warrant to search 'premises' located at a particular address is sufficient to support the search of outbuildings and appurtenances in addition to a main building when the various places searched are part of a single integral unit. [Citations.]" [Citations.]' " (People v. Gallegos (2002) 96 Cal.App.4th 612, 625-626, quoting People v. Smith (1994) 21 Cal.App.4th 942, 950.) Appellant relies upon the principle that "when a warrant directs a search of a multiple occupancy apartment house or building, absent a showing of probable cause for searching each unit or for believing that the entire building is a single living unit, the warrant is void and a conviction obtained on evidence seized under it cannot stand." (People v. Estrada (1965) 234 Cal.App.2d 136, 146.)
The trial court concluded that the premises at 222 Vermont Avenue was a single-family dwelling unit, "not a multiple-dwelling unit with separate addresses," noting that the individual bedrooms did not have separate bathrooms or kitchens. Substantial evidence supported this conclusion. The garage was clearly not a self-contained, separate living unit, as it lacked a bathroom or kitchen, and Sergeant Simmont testified that it appeared to be a common area and that he believed appellant so indicated.
United States v. Cannon (9th Cir. 2001) 264 F.3d 875, upon which appellant relies, does not support his argument. In that case, agents executing a search warrant for a single-family house owned by the defendant reasonably believed a rear building on the property was a garage. (Id. at pp. 877, 879.) Upon entry, the agents discovered that a portion of the rear building had been converted into a "self-contained residential unit" containing a living room, "sleeping deck," bathroom, kitchen stove, sink and refrigerator. (Id. at p. 878.) This dwelling was rented by a third party. (Id. at pp. 877-878.) There were also two separate storage areas in the rear building, each of which could be accessed only by separate doors on the exterior of the building. (Ibid.) After searching the main house and rear dwelling unit, agents obtained keys to the storage areas from the property owner, opened them and discovered marijuana plants. (Ibid.) Cannon held that the dwelling in the rear building was not within the scope of the search warrant because the appliances and bathroom made clear it was a separate dwelling. (Id. at p. 879.) The storage areas, by contrast, were covered by the warrant because they were within the curtilage of the main house; they were not part of the rental and the renter did not have access to them. (Id. at p. 880.)
Appellant urges that the present case is similar because here, too, the officers executing the search warrant learned that the garage was being used as a "separate subunit." Unlike the dwelling unit in Cannon, however, the garage here was not a self-contained separate dwelling: It lacked the appliances and bathroom upon which the court's analysis in Cannon focused.
Appellant maintains that he had a legitimate expectation of privacy in his living quarters that he did not give up by sharing a house with roommates, but his argument depends on his characterization of the garage as separate living space for his exclusive use. Thus, he attempts to distinguish Maryland v. Garrison (1987) 480 U.S. 79, in which police realized in the course of executing a warrant for the "third floor apartment" of one McWebb that the third floor actually consisted of two separate apartments. Contraband was discovered before the officers realized they were in the apartment of a different person, Garrison, and the search was discontinued when they learned this fact. (Id. at pp. 80-81.) Upholding the search, the court explained that the warrant was valid when issued, that the officers would have had to limit the search to McWebb's apartment if they knew or should have known beforehand that the third floor contained two apartments, but that "the officers' failure to realize the overbreadth of the warrant was objectively understandable and reasonable" because the "objective facts available to the officers at the time suggested no distinction between McWebb's apartment and the third-floor premises." (Id. at pp. 86, 88.) Appellant argues that here, unlike in Garrison, the officers knew before they began to search that the garage was appellant's separate residence and therefore outside the scope of the warrant, because appellant told them so. But this distinction assumes the facts that the trial court found against appellant. The present case does not involve distinct, self-contained living units as in Garrison or Cannon but rather, as we have said, a single residential unit.
Appellant cites no relevant authority for the proposition that the warrant did not authorize search of the garage. To the contrary, "[a] search warrant for the entire premises of a single family residence is valid, notwithstanding the fact that it was issued based on information regarding the alleged illegal activities of one of several occupants of a residence." (United States v. Ayers (9th Cir. 1991) 924 F.2d 1468, 1480; People v. Gorg (1958) 157 Cal.App.2d 515, 523 [warrant for three-bedroom flat occupied authorized search of bedroom of person other than the one named in warrant].)
The cases appellant cites concerning the legitimate expectation of privacy of the occupant of a room in a boarding house (McDonald v. United States (1948) 335 U.S. 451) or hotel guest (Stoner v. California (1964) 376 U.S. 483, 490) concern challenges to warrantless searches.
The Ayers court noted that the search of the entire single-family residence was not "overbroad or unreasonable" because "a drug dealer's narcotics and related paraphernalia is likely to be found in his residence" and "can be hidden in any portion of the residence," and since the "most obvious place for the police to search would be the drug dealer's bedroom," "any other portion of the house would be a more secure hiding place." (United States v. Ayers, supra, 924 F.2d at p. 1480.) --------
II.
Appellant was alleged to have suffered four prior felony convictions, one of which was alleged as a prison prior under section 667.5, subdivision (b). These allegations were bifurcated prior to trial. After the jury rendered its verdict and was excused, the court noted that, pursuant to a prior discussion, the defense planned to submit to a court trial on the priors. The parties and court agreed to a continuance, however, because appellant's previously filed petition to reduce the priors to misdemeanors under Proposition 47 had not yet been ruled upon.
Subsequently, the priors were reduced to misdemeanors and the prosecution sought to brief the question of how they would be treated at sentencing. Defense counsel informed the court that appellant would "stipulate that the priors occurred" and the court questioned appellant to ensure his "personal agreement," then concluded he had voluntarily and intelligently waived his right to a court trial on the priors and found them true. At sentencing, defense counsel asked the court to strike the section 667.5, subdivision (b), allegation, while the prosecutor argued the court did not have authority to do so. The court declined to strike the allegation and imposed the enhancement.
Appellant challenges the sentence enhancement on two grounds. First, he contends the trial court erred in finding that he knowingly and intelligently waived his right to a trial on the four alleged prior convictions. (People v. Cross (2015) 61 Cal.4th 164; In re Yurko (1974) 10 Cal.3d 857.) Second, he maintains the trial court erred in imposing the section 667.5, subdivision (b), enhancement after the underlying felony conviction was reduced to a misdemeanor. We agree with his second contention and therefore have no need to address the first.
"The purpose of the prior prison term enhancement of section 667.5, subdivision (b), is ' "to punish individuals" who have shown that they are " 'hardened criminal[s] who [are] undeterred by the fear of prison.' " ' (In re Preston (2009) 176 Cal.App.4th 1109, 1115 . . . ; see People v. Jones (1993) 5 Cal.4th 1142, 1148.) The sentence enhancement requires proof that the defendant ' "(1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." ' ([Preston], at p. 1115; see People v. Tenner (1993) 6 Cal.4th 559, 563.)" (People v. Abdallah (2016) 246 Cal.App.4th 736, 742 (Abdallah).)
"Proposition 47 prospectively reduced certain felonies (including possession of methamphetamine by some defendants) to misdemeanors and created two separate mechanisms for reclassifying felony convictions as misdemeanors, depending on whether the defendant is 'currently serving' a sentence for an eligible felony conviction or has 'completed his or her sentence.' ([People v.] Ruff [(2016)] 244 Cal.App.4th [935,] 938[, review granted May 11, 2016, S233201]; People v. Williams (2016) 245 Cal.App.4th 458, 466 (Williams)[, review granted May 11, 2016, S233539].) Section 1170.18, subdivision (a), authorizes the court to recall and resentence defendants ' "currently serving" ' a felony sentence upon a finding that the reclassification will not pose an ' "unreasonable risk that the [defendant] will commit a new violent felony within the meaning of" section 667, subdivision (e)(2)(C)(iv).' (Williams, at p. 466; see § 1170.18, subds. (a) & (b); People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) For defendants who have already completed their sentence, section 1170.18, subdivision (f), authorizes courts to redesignate their convictions as misdemeanors. (Williams, at p. 466.) Section 1170.18, subdivision (k), provides that any felony conviction that has been recalled and resentenced '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 [the chapter prohibiting firearm access by certain narcotics offenders].' (Italics added [in Abdallah].)" (Abdallah, supra, 246 Cal.App.4th at pp. 743-744.)
The trial court in Abdallah, at sentencing on a felony conviction in 2014, imposed a section 667.5, subdivision (b), enhancement because the defendant, after being released from prison on parole in 2005, was arrested in 2009 (less than five years later) on a new felony offense for which he was convicted in 2011. (Abdallah, supra, 246 Cal.App.4th at pp. 739-740.) In the 2014 case, after conviction but prior to sentencing, the defendant's sentence on the 2011 felony conviction was recalled and resentenced as a misdemeanor under the then-newly enacted Proposition 47. The Abdallah court concluded: "Once the trial court recalled Abdallah's 2011 felony sentence and resentenced him to a misdemeanor, section 1170.18, subdivision (k), reclassified that conviction as a misdemeanor 'for all purposes.' (See People v. Camarillo (2000) 84 Cal.App.4th 1386, 1391 [interpreting the same language under § 17].) Therefore, at the time of sentencing in this case, Abdallah was not a person who had committed 'an offense which result[ed] in a felony conviction' within five years after his release on parole for his prior conviction." (Abdallah, at p. 746.)
Abdallah took guidance from People v. Park (2013) 56 Cal.4th 782, which held that a defendant's sentence could not be enhanced pursuant to section 667, subdivision (a), due to a prior serious felony conviction that had been reduced to a misdemeanor under section 17, subdivision (b), prior to sentencing. Section 17, subdivision (b), gives courts discretion to declare a "wobbler"—an offense punishable either by imprisonment in the state prison or imprisonment in a county jail—a misdemeanor. (Park, at p. 787.) The statute provides that a wobbler "is a misdemeanor for all purposes . . . [¶] . . . [¶] [w]hen . . . the court declares the offense to be a misdemeanor." (§ 17, subd. (b)(3).) Park court held that after the prior offense was properly reduced to a misdemeanor, it " 'no longer qualified as a prior serious felony within the meaning of section 667, subdivision (a), and could not be used, under that provision, to enhance the defendant's sentence.' " (Abdallah, supra, 246 Cal.App.4th at p. 745, quoting Park, at p. 787.)
"Proposition 47 borrowed the 'for all purposes' language of section 1170.18, subdivision (k), from section 17, subdivision (b)." (Abdallah, supra, 246 Cal.App.4th at p. 745; People v. Rivera (2015) 233 Cal.App.4th 1085, 1100.) Abdallah explained that "[b]ecause section 1170.18, subdivision (k), and section 17 both address the effect of recalling and resentencing of a felony (or a wobbler that could be a felony) as a misdemeanor, we construe the phrase 'misdemeanor for all purposes' in section 1170.18, subdivision (k), to mean the same as it does in section 17." (Abdallah, at p. 745.) Accordingly, it applied the "same logic" used in Park's analysis of sections 667 and 17 to sections 667.5, subdivision (b), and 1170.18, subdivision (k). (Abdallah, at p. 746.)
Other courts have similarly held that a section 667.5, subdivision (b), enhancement may not be imposed where the underlying conviction previously has been reduced to a misdemeanor under section 47 (People v. Kindall (2016) 6 Cal.App.5th 1199, 1204-1205 [reduced prior to adjudication in current proceeding]; People v. Call (2017) 9 Cal.App.5th 856 (Call) [reduced prior to sentencing].) Here, as in Abdallah and Call, at the time the trial court imposed the section 667.5, subdivision (b), enhancement, the preconditions for such imposition did not exist: The reduction of the prior offense to a misdemeanor, "in effect, remove[d] an element of a section 667.5, subdivision (b) enhancement, the element of having been 'convicted of a felony.' " (Call, at p. 862.)
A number of cases involving the effect of a Proposition 47 reduction of a prior conviction on a section 667.5, subdivision (b), enhancement that has already been imposed—i.e., retroactive application of Proposition 47—are currently pending before the California Supreme Court. (E.g., People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted March 30, 2016, S232900 [declining to strike section 667.5, subdivision (b), where prior conviction reduced to misdemeanor after sentencing, while case on appeal]; People v. Ruff, supra, 244 Cal.App.4th 935 [same]; Williams, supra, 245 Cal.App.4th 458 [affirming denial of petition for resentencing to strike section 667.5, subdivision (b), enhancement after postsentencing reduction of prior conviction to misdemeanor]; People v. Diaz (2017) 8 Cal.App.5th 812, review granted May 10, 2017, S240888 [reversing trial court's striking of section 667.5, subdivision (b), after postsentencing reduction of prior conviction to misdemeanor]; People v. Evans (2016) 6 Cal.App.5th 894, review granted Feb. 22, 2017, S239635 [section 667.5, subd. (b), enhancement stricken where prior conviction reduced to misdemeanor after sentencing but before judgment final].)
The posture of the present case is different. As explained in Call, "It is readily apparent Proposition 47 was intended to lessen punishment for 'nonserious, nonviolent crimes like petty theft and drug possession' (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70), in order 'to ensure that prison spending is focused on violent and serious offenses . . . .' (Id., § 2, p. 70.) Voters were also concerned with public safety, however, and, as we explained in [People v.] Johnson [(2017) 8 Cal.App.5th 111, review granted April 12, 2017, S240509], nothing in Proposition 47's language or the related ballot materials indicates voters intended retroactively to override the operation of section 667.5, subdivision (b). (Johnson, . . . at p. 123.) [¶] The present case does not involve retroactive application, but rather prospective application. In our view, contrary to the situation that exists when a felony conviction underlying a prior prison term enhancement is reduced to a misdemeanor after the enhancement is imposed, imposing said enhancement after the underlying conviction is reduced would not comport with—and would be directly contrary to—voters' intent in enacting Proposition 47." (Call, supra, 9 Cal.App.5th at p. 863, fn. omitted.)
Respondent maintains that Abdallah was wrongly decided because sentence enhancements for prior prison terms are based on the defendant's status as a recidivist, and not on the underlying criminal conduct. As respondent recognizes, Abdallah declined to accept this argument. The court quoted Park's rejection of the analogous point in the context of wobblers and section 667, subdivision (a), enhancements: " '[W]hen the court properly exercises its discretion to reduce a wobbler to a misdemeanor, it has found that the felony punishment, and its consequences, are not appropriate for that particular defendant.' [(Park, supra, 56 Cal.4th at p. 801.)] Indeed, 'one of the "chief" reasons for reducing a wobbler to a misdemeanor "is that under such circumstances the offense is not considered to be serious enough to entitle the court to resort to it as a prior conviction of a felony for the purpose of increasing the penalty for a subsequent crime." ' (Id. at p. 794.)" (Abdallah, supra, 246 Cal.App.4th at p. 748.) We also find respondent's argument unpersuasive.
DISPOSITION
The one-year enhancement under section 667.5, subdivision (b), is stricken. As so modified, the judgment is affirmed. The trial court is directed to forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.