Opinion
H034499 H036249
11-15-2011
THE PEOPLE, Plaintiff and Respondent, v. RAQUEL CASTRO et al., Defendants and Appellants. In re RAQUEL CASTRO, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. Nos. SS072989, SS072662 & SS073365)
(Monterey County Super. Ct. Nos. SS072989, SS072662 & SS0073365)
This appeal is brought by defendants Raquel Castro and Robert Butler, and concerns three separate drug cases in the Monterey County Superior Court. Following Castro and Butler's unsuccessful motions to suppress evidence seized during the execution of search warrants, each defendant pleaded no contest to drug charges pursuant to negotiated dispositions.
On appeal, both Castro and Butler assert the trial court erred in denying their motions to suppress evidence. Castro also asserts she was denied effective assistance of counsel because her attorney failed to raise certain issues during the motion. Castro's ineffective assistance claim is also the subject of a separate petition for writ of habeas corpus that is consolidated with this appeal.
In re Raquel Castro on Habeas Corpus, H036249.
Finally, Butler asserts he is entitled to additional custody credits based on a retroactive application of the 2010 amendments to Penal Code section 4019.
STATEMENT OF THE FACTS AND CASE
Each of the three cases that are the subject of this appeal are discussed separately below.
Case No. SS072662
In September 2007, police officers executed a search warrant for Butler, his car, and his residence. Officers seized 8.36 ounces of methamphetamine, 2.86 ounces of cocaine, 3.3 grams of marijuana, and 2.5 grams of cocaine base.
Butler was charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378 - count 1), possession of methamphetamine (§ 11377, subd. (a) - count 2), possession of cocaine for sale (§ 11351 - count 3), possession of cocaine (§ 11350, subd. (a) - count 4), being a felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1) - count 5), and possession of cocaine base for sale (§ 11351.5 - count 6). The information also alleged Butler had prior drug convictions within the meaning of § 11370.2, subd. (c).
All further unspecified statutory references are to the Health and Safety Code.
Butler pleaded no contest to possession of methamphetamine for sale (count 1), and possession of cocaine base for sale (count 6), and admitted the prior drug conviction under section 11370.2, subdivision (a). Butler was sentenced to seven years in state prison. All other charges and enhancements in the information were dismissed.
Case No. SS072989
In October 2007, officers executed a search warrant of Castro, her home and her car. Prior to executing the warrant, police officers had Castro's apartment under surveillance, during which time they saw Castro and Butler leave Castro's apartment and drive away in Butler's car. Officers stopped Butler's car, and took both Castro and Butler to the police station.
During the search of Castro's apartment, officers found cocaine inside the pocket of a pair of men's pants, and $1,213 in Castro's car.
At the police station, during a strip search, Castro turned over 1.58 ounces of cocaine base that was inside her vagina. Castro told the officers that the cocaine found in her apartment belonged to Butler.
Castro was charged with sale or transportation of cocaine base (§ 113 52, subd. (a) - count 1), possession of cocaine base for sale (§ 11351.5 - count 2), and possession of cocaine base (§ 11350, subd. (a) - count 3). Butler was charged with possession of cocaine for sale (§ 11351; count 4) possession of cocaine (§ 11350, subd. (a) - count 5). The information also alleged Butler was released from custody when he committed the offenses within the meaning of Penal Code section 12022.1, and had a prior conviction for possession of cocaine base for sale (§ 11351.1).
Castro pleaded no contest to count 2, and was placed on formal probation for three years. All other charges against her were dismissed.
The charges against Butler in this information were dismissed.
Case No. SS073365
In December 2007, police officers executed a search warrant of Castro and Butler, their cars, and a mobile home. Officers found $1,093 in Castro's car. At the police station during a strip search, officers found 18.2 grams of methamphetamine that was concealed inside Butler's anal cavity.
Butler was charged with possession of methamphetamine for sale (§ 11378 - count 1), transportation of methamphetamine (§ 11379, subd. (a) - count 2), and possession of methamphetamine (§ 11377, subd. (a) - count 3). The information also alleged Butler was released from custody when he committed the offenses within the meaning of Penal Code section 12022.1, and had a prior conviction for possession of cocaine base for sale (§ 11351.5) within the meaning of section 11370.2, subdivision (c).
Butler pleaded no contest to transportation of methamphetamine (count 2) and admitted the on bail enhancement within the meaning of Penal Code section 12022.1. Butler was sentenced to serve three years in state prison. The other charges in the information were dismissed.
D ISCUSSION
Case No. SS072989
Castro asserts the court erred in denying her motion to suppress the evidence obtained during a strip search. She argues the strip search exceeded the scope of the warrant and was an invasion of privacy.
Butler asserts the court erred in denying his motion to suppress the evidence seized during the search of Castro's house, because there was no probable cause to obtain the warrant, and the search of his pants exceeded the warrant.
Case No. SS073365
Butler asserts the court erred in denying his motion to suppress the evidence obtained during his strip search, because the seizure was unreasonable and exceeded the scope of the warrant.
Motions to Suppress Evidence
Castro and Butler assert the court erred in denying their respective motions to suppress evidence. "In reviewing the trial court's denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial court's application of the law to the facts." (People v. Jenkins (2000) 22 Cal.4th 900, 969.) "In conducting our independent review, we are concerned with the correctness of the ruling, not the trial court's reasoning." (People v. Zichwic (2001) 94 Cal.App.4th 944, 951.)
Search Warrant
Butler argues the information contained in the affidavit in support of the search warrant failed to establish probable cause to search Castro's apartment.
In issuing a search warrant, there must be a "fair probability that contraband or evidence will be found in a particular place." (Illinois v. Gates (1983) 462 U.S. 213, 273.) The existence or nonexistence of probable cause is assessed by applying a "totality of the circumstances" test, which entails consideration of "the whole picture." (United States v. Cortez (1981) 449 U.S. 411, 417.)
"A magistrate's 'determination of probable cause should be paid great deference by reviewing courts.' " (Illinois v. Gates, supra, 462 U.S. at p. 236.) "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates, supra, 462 U.S. at p. 238.) Where the affidavit provides sufficient information to enable the magistrate to act independently rather than merely ratifying the conclusions of the affiant, the affidavit is not legally insufficient. (Id. at p. 239.) "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." (United States v. Ventresca (1965) 380 U.S. 102, 109.)
The affidavit to support the search warrant of Castro's apartment stated that the investigating officer had received information from a confidential informant about Castro's drug activity. The informant stated that he had bought cocaine from Castro more than 10 times over a two month period. The affidavit also stated that within the previous five days, officers witnessed a controlled buy between the informant and Castro. The apartment manager verified that apartment 214 was Castro's.
The officer concluded the affidavit by stating that in his experience, he believed Castro was a drug dealer, drug dealers often purchase drugs in large quantities to break down for sale, and drug dealers often use their cars for storage and transportation of drugs. The affidavit further stated that a search of Castro's residence would help police seize narcotics.
Butler asserts the affidavit was insufficient to establish probable cause, because it failed to state a nexus between Castro's residence and the criminal activity, it failed to state where the controlled buy between Castro and the information took place, and the information about Castro's apartment number was stale because it was seven months old.
While the affidavit in this case did not specifically state that Castro kept drugs in her apartment, it did state that Castro was a drug dealer and that drug dealers often purchase drugs in large quantities to break down for sale. It further stated that a search of her residence would lead to narcotics.
" 'A magistrate is permitted to draw reasonable inferences about where evidence is likely to be kept based on the nature of the evidence and the type of offense. [Citations.] He "need not determine that the evidence sought is in fact on the premises to be searched . . . or that the evidence is more likely than not to be found where the search takes place . . . . The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit." [Citation.] Moreover, "a magistrate may rely on the conclusions of experienced law enforcement officers regarding where evidence of a crime is likely to be found." [Citation.] [¶] The Ninth Circuit has recognized that "[i]n the case of drug dealers, evidence is likely to be found where the dealers live." [Citation.]' " (People v. Cleland (1990) 225 Cal.App.3d 388, 392-393.)
Here, based on the statements in the affidavit, the magistrate could conclude it would be reasonable to seek narcotics evidence in Castro's home. The fact that the affidavit did not specifically state that Castro kept narcotics in her home does not invalidate the search warrant.
Butler also challenges the affidavit based on staleness of the information about where Castro lived, because information that Castro lived in apartment 214 was seven months old.
While it is true the information about Castro's apartment number was gleaned seven months before execution of the warrant, this fact does not necessarily make the information stale. The affidavit in this case stated that Castro lived at 500 Ramona Avenue in apartment number 214. During the two-week period preceding execution of the warrant, officers saw Castro's car parked in the parking lot for 500 Ramona Avenue on several occasions. In addition, the DMV did not show any change of address for Castro during the seven month period.
Based on the affidavit, it was reasonable for the magistrate to conclude that Castro still lived in apartment 214.
Finally, Butler challenges the officers' search of his pants found in Castro's home, because he asserts it exceeded the scope of the search warrant. Butler argues the police knew the pants were his, and not Castro's and therefore, they had no right to search them.
"[P]olice officers may search the personal effects of a person who is more than a casual visitor, but not a resident of the premises. [Citation] 'If the circumstances suggest a relationship between the person and place sufficient to connect the individual to the illegal activities giving rise to the warrant, search of the person's property on the premises is permitted. [Citation.]' " (People v. Frederick (2006) 142 Cal.App.4th 400, 411.)
Here, the facts gathered by the officers in preparation for the affidavit demonstrated that Castro and Butler had a relationship justifying the search of Butler's jeans. Specifically, police had previously searched Butler's home and discovered narcotics in quantities indicative of sales. During surveillance of Castro's apartment, officers saw Butler's car parked in the parking lot late at night and early in the morning more often than not.
The police had information from a previous search that Butler was a drug dealer, and from surveillance that he was a very frequent visitor at Castro's apartment. Therefore, the search of Butler's jeans found in Castro's apartment was lawful. (People v. Frederick, supra, 142 Cal.App.4th at p. 411.)
We conclude the affidavit in this case provided the magistrate with a substantial basis for concluding there was probable cause to issue the challenged search warrant. The standard of probable cause articulated in Gates, which is reasonable suspicion, or "a fair probability that contraband or evidence of crime will be found in a particular place," as opposed to " 'a prima facie showing, of criminal activity,' " (Illinois v. Gates, supra, 462 U.S. at pp. 235, 238) was abundantly met. Accordingly, the trial court did not err in denying Butler's motion to suppress.
Strip Searches
Castro and Butler both assert the strip searches to which they were subjected were improper, and any evidence seized as a result of those searches should be suppressed.
"A 'strip search,' though an umbrella term, generally refers to an inspection of a naked individual, without any scrutiny of the subject's body cavities. A 'visual body cavity search' extends to a visual inspection of the anal and genital areas. A 'manual body cavity search' includes some degree of touching or probing of body cavities." (Blackburn v. Snow (1st Circ. 1985) 771 F.2d 556, 561, fn. 3.) "Body Cavity" means the stomach or rectal cavity of a person and the vagina of a female. (DeFelice v. Ingrassia (D. Conn. 2002) 210 F.Supp.2d 88, 96.) "The Fourth Amendment prohibits all 'unreasonable' searches, whether conducted pursuant to a warrant or not. [Citation.] 'Reasonableness' is determined by balancing ' "the need to search . . . against the invasion which the search . . . entails." ' [Citations.] [¶] The human body is not, of course, a sanctuary in which evidence may be concealed with impunity. [Citation.] Appropriate procedures to retrieve such evidence are neither 'unreasonable' per se under the Fourth Amendment, nor violations of 'due process' procedures guaranteed by the Fifth and Fourteenth Amendments. [Citations.] [¶] On the other hand, [California and United States Supreme Court cases] have made clear that the circumstances which permit penetrations beyond the body's surface are particularly limited, since such intrusions may readily offend those principles of dignity and privacy which are protected by the Fourth Amendment. The requirement that penetrations of the body be founded on strong showings of need [is] in large measure applicable equally to searches with and without a warrant." (People v. Scott (1978) 21 Cal.3d 284, 292-293.)
In Bell v. Wolfish (1979) 441 U.S. 520 (Bell) the United States Supreme Court explained: "The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." (Id. at p. 559 [holding that the practice of conducting visual body cavity searches of inmates following contact visits did not violate the Fourth Amendment].)
Castro
Castro was subjected to a strip search after she was transported to the Seaside Police Department following the traffic stop that occurred during the execution of the search warrant. Officer Stacy Sanders took Castro to a female cell and turned off the cameras. Another female officer was also present. Sanders told Castro to stand against the wall and remove each item of clothing separately. Castro took off all her clothes and stopped when she got to her underwear. Castro told Sanders she did not think the search was right. Castro eventually removed her underwear.
After Castro removed her underwear, Sanders saw a piece of plastic coming from between Castro's legs in her vaginal area. Sanders told Castro to remove the plastic, and when she did, it was discovered that the plastic was a baggie that had multiple off-white colored rocks inside. Castro said to Sanders, "he told me to put it in there."
Castro asserts the strip search was improper, because it was unreasonable and was not specifically authorized by the warrant.
Here, the warrant provided for the search of Castro's person, identifying her as: "Raquel Castro (D.O.B. . . .); HFA, 5'04" in height, 150 in weight, black hair, brown eyes. California Drivers License: . . . ." While it did not specifically state "strip search," it did authorize a search of Castro's person. The strip search was authorized by the warrant.
Moreover, in light of the factors in Bell, supra, 441 U.S. 520, Castro's search was reasonable, and not a violation of the Fourth Amendment. Specifically, the "scope of the particular intrusion" was minimal, because Castro was not subjected to a cavity search, "the manner in which it is conducted" was reasonable, in that it was conducted by a female officer, with only one other female officer present, and the cameras were turned off, "the justification for initiating it" was valid, because the search warrant authorized a search of Castro's person, and "the place in which it is conducted" was proper, in that it was done in a female cell at the Seaside Police Department. (Id. at p. 559.)
Like the case of People v. Wade (1989) 208 Cal.App.3d 304 (Wade), "[t]he body search was brief, nonviolent, minimally intrusive, and not conducted in a grossly offensive manner. . . . When the relatively mild intrusion is balanced against the public's strong interest in combating narcotics use and the fact the contraband was visible and retrieved without actual physical invasion of a body cavity, it is clear that federal law would not require suppression of the evidence." (Id. at p. 309.)
Considering the events of Castro's search under Fourth Amendment standards, nothing about Officer Sander's behavior in conducting the search "shocks the conscience." It does not appear unreasonable under the Fourth Amendment to conduct a strip search of a known drug dealer as part of a search warrant of her person. We therefore conclude that the court did not err when it denied Castro's motion to suppress.
Butler
Butler was subjected to a strip search at the Seaside Police Station following a traffic stop during the execution of a search warrant at his mobile home. During the traffic stop, Officer Charlton conducted a pat down search of Butler, and felt a hard object in his buttocks area. Charlton suspected the object was contraband, and when he asked Butler to take it out, Butler refused. Charlton took Butler to the police station, where he placed Butler in a cell that was obscured from public view, and asked Butler to take off his clothes. Butler complied. Charlton asked Butler to clasp his buttocks, bend over, squat down and cough. When Butler bent over, Charlton saw an object coming out of Butler's anus. Charlton removed the object, which was a plastic bag filled with 10 smaller plastic baggies containing methamphetamine.
Butler asserts the court erred in denying his motion to suppress the evidence seized as a result of the strip search, because the search was unreasonable and beyond the scope of the search warrant.
Considering the factors in Bell, supra, 441 U.S. 520, Butler's search did not violate the Fourth Amendment. Here, "the manner in which it is conducted" was reasonable, in that it was conducted by a single male officer, and did not involve any physical force or violence to effectuate the seizure. In addition, "the justification for initiating it" was valid, because the search warrant authorized a search of Butler's person, and the officer who conducted Butler's pat down search felt a hard object in Butler's buttocks region that he believed was contraband. The subsequent strip search was necessary to discover the object the officer felt. Finally, "the place in which it is conducted" was proper, in that it was done in a jail cell that was obscured from public view. (Id. at p. 559.)
With regard to the Bell factor of "scope of the particular intrusion," while Butler was subjected to a visible cavity search, he was not subjected to any probing or intrusion into his rectal cavity. When Butler spread his buttocks and bent down, Charlton saw an object protruding from Butler's anus. Without touching Butler, Charlton pulled the object out of Butler's anus. The objected turned out to be a bag filled with smaller baggies containing methamphetamine.
This case is similar to Wade, in which officers conducted a visible body cavity search of a man who was arrested for being under the influence of an opiate. The officers told Wade to pull down his pants and underwear and bend over and spread his buttocks. While Wade complied, the officer saw a small plastic object protruding from Wade's anus. Another officer assisted and spread Wade's buttocks apart, and the object, which turned out to be a package of heroin fell to the floor. There was not physical invasion into Wade's rectal cavity. (Wade, supra, 208 Cal.App.3d at p. 307.)
The court in Wade concluded the search was not a violation of the Fourth Amendment, focusing on the fact that the search did not "shock the conscience." The court specifically found the "[t]he body search was brief, nonviolent, minimally intrusive, and not conducted in a grossly offensive manner." (Wade, supra, 208 Cal.App.3d at p. 309.) These facts, coupled with the public's interest in combating narcotics were sufficient to justify the search in Wade. (Ibid.)
Similarly, nothing about Butler's search in this case "shocks the conscience" such that it would violate the Fourth Amendment. There was no physical invasion of Butler's anus, and the seizure was not effectuated by means of force or violence. Here, the strip search was reasonable not only because the search warrant provided for a search of Butler's person, but also because the officer had a suspicion Butler was concealing contraband in his buttocks during the pat down search. We find the court did not err when it denied Butler's motion to suppress.
Ineffective Assistance of Counsel
Castro asserts she was denied effective assistance of counsel, because her attorney did not argue that the seizure of drugs from her person was the tainted fruit of an illegal seizure and transportation to the police station.
Castro also raises this issue in the petition for writ of habeas corpus consolidated with this appeal. Accompanying the petition is Castro's trial counsel's declaration stating that he did not raise the issue of Castro's strip search because he believed it was permitted under the warrant.
To prevail on a claim of ineffective assistance of counsel, first, appellant must establish that " 'counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citation.]" (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 688.) However, "[a] reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
Second, appellant must show prejudice. Specifically, appellant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)
Here, Castro's counsel's conduct in not raising the issue that fruits of the strip search were tainted by Castro's improper detention did not fall " 'below an objective standard of reasonableness . . . .' " (People v. Ledesma, supra, 43 Cal.3d at p. 216.) Had Castro's attorney raised the issue, it would very likely have been rejected by the court. The search of Castro's person was authorized by the warrant, because she was particularly described therein. (See Lohman v. Superior Court (1977) 69 Cal.App.3d 894, 903.) In addition, Castro's detention for the purpose of the executing the search warrant was proper under the circumstances. (See Ibid.)
We find Castro was not denied effective assistance of counsel in her motion to suppress evidence. Therefore, we will deny Castro's petition for writ of habeas corpus.
Penal Code section 4019
Bulter asserts he is entitled to a larger amount of presentence custody credit because the 2010 amendments to Penal Code section 4019 should be applied retroactively.
Penal Code Section 4019 permits a criminal defendant to earn additional credit prior to being sentenced by performing assigned labor (Pen. Code, § 4019, subd. (b)(1)), or by his or her good behavior during detention (Pen. Code, § 4019, subd. (c)(1)). Such credits are collectively referred to as " '[c]onduct credit[s].' " (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The recently enacted Senate Bill No. 18 (2009-2010 3d Ex.Sess.) amended Penal Code section 4019, effective January 25, 2010, to enhance the number of presentence conduct credits for certain offenders. (Stats. 2009, 3d Ex.Sess., ch. 28, § 50.)
The formula in place for calculating credits under Penal Code section 4019 at the time of Butler's sentencing in this case was that a defendant could accrue conduct credit of two days for every four days of actual presentence custody (former Pen. Code § 4019, subds. (b), (c)); under the new formula provided in Senate Bill No. 18, a qualifying defendant may accrue conduct credit of four days for every four days of presentence custody (Pen. Code § 4019, subds.(b)(1), (c)(1)). The amended version of Penal Code section 4019 went into effect on January 25, 2010, after Butler was sentenced, but during the pendency of this appeal.
The issue regarding the retroactivity of the amendment to Penal Code section 4019 has divided the district courts of appeal and is presently pending before the California Supreme Court. The First, Second, and Third District Courts of Appeal have held that the amendment to Penal Code section 4019 applies retroactively. (People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
However, this court and the Fourth and Fifth Districts have held that the amendment applies prospectively. (People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724 [Sixth District]; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.)
Pending further guidance from the Supreme Court on the issue, we will not alter our conclusion that Penal Code section 4019 applies prospectively. Penal Code section 3 provides that no part of the Penal Code is "retroactive, unless expressly so declared." Penal Code section 3 thus reflects the general rule that legislative provisions are presumed to operate prospectively. " 'It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise. [Citations.]' [Citations.] 'We may infer such an intent from the express provisions of the statute as well as from extrinsic sources, including the legislative history. [Citation.]' [Citation.] Nonetheless, 'in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.' " (People v. Whaley (2008) 160 Cal.App.4th 779, 793-794.)
DISPOSITION
The judgment is affirmed in H034499. The petition for writ of habeas corpus in H036249 is denied.
RUSHING, P.J. WE CONCUR:
BAMATTRE-MANOUKIAN, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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