Opinion
F080792
10-07-2021
THE PEOPLE, Plaintiff and Respondent, v. TOBY LEE COFFEY, Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF175954A. David R. Zulfa, Judge.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Toby Lee Coffey pled no contest to possession of methamphetamine while armed with a firearm. He contends on appeal that (1) the warrantless search of his home that led to the discovery of the methamphetamine was unlawful because no exception to the warrant requirement applied, and (2) his term of probation must be modified to two years pursuant to Penal Code section 1203.1, subdivision (a), as amended by Assembly Bill No. 1950 (2019−2020 Reg. Sess.) (Assembly Bill 1950). The People disagree on the first issue, arguing that the search was proper because defendant consented to the search and because a probationer who was subject to search conditions lived in the home. The People agree that defendant is entitled to the benefit of Assembly Bill 1950, but they contend that we should remand the matter for the trial court to reduce the term of probation and consider any motion by the People to withdraw from the plea agreement. We vacate the sentence and remand the matter to the trial court to modify the term of probation in conformity with Assembly Bill 1950 and to permit the People and the trial court an opportunity to accede to the modified terms of probation or withdraw approval for the plea agreement. In all other respects, we affirm.
All further statutory references are to the Penal Code unless otherwise stated.
PROCEDURAL SUMMARY
On April 15, 2019, the Kern County District Attorney filed an information charging defendant with possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 1), misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 4), and misdemeanor possession of narcotics paraphernalia (Health & Saf. Code, § 11364; count 5).
All further dates refer to the year 2019 unless otherwise stated.
Counts 2 and 3 alleged offenses against codefendant William Derek Wilcox.
On May 28, the court denied defendant's motion to suppress evidence pursuant to section 1538.5. On August 15, the court denied defendant's subsequent motion to suppress.
On November 22, pursuant to a negotiated plea agreement, defendant pled no contest to count 1 in exchange for dismissal of counts 4 and 5 and granting of an agreed upon three-year term of probation.
On December 23, the trial court imposed the agreed-upon sentence.
On February 18, 2020, defendant filed a notice of appeal.
The factual summary is based on the testimony presented at the hearing on defendant's motion to suppress.
On March 13, at about 9:00 p.m., Kern County Deputy Probation Officer Govinda Ifrung and other officers arrived at a residential trailer to arrest a probationer. When they arrived, the probationer was outside the trailer and attempted to enter the trailer. The officers intercepted him and arrested him before he was able to enter. The probationer had a 12-inch dagger in his pocket when he was arrested. At the time, the officers did not know if the probationer lived in the trailer. Ifrung testified that he did not have any evidence at the time to suggest that a crime had taken place inside the trailer. The officers then conducted a “protective sweep” of the trailer. Wilcox stood in the doorway of the trailer. Ifrung directed the inhabitants of the trailer-Wilcox and defendant-to exit the trailer. When officers informed defendant that they were going to conduct a protective sweep, he consented to the search.
Ifrung did not ask the probationer about whether he resided in the trailer until after the search was completed. The probationer informed Ifrung that he did not live in the trailer.
Ifrung did not recognize Wilcox as a probationer at that time. It was not until after Wilcox was detained that officers learned of his probation status.
The officers searched the trailer. An officer found a “shotgun inside the south closet that was in plain view and a box of shotgun shells in an open drawer.”
Defendant told Ifrung he owned the trailer and codefendant Wilcox stayed there with him. Defendant told Ifrung that Wilcox predominantly stayed in the northern end of the trailer but occasionally slept in defendant's bed when defendant was gone. Ifrung learned that Wilcox was on probation. The terms of Wilcox's probation included being subject to search for narcotics and paraphernalia. Ifrung testified that defendant also consented to a search of the trailer by saying “ ‘do your job' ” in response to Ifrung indicating he planned to conduct a probation search of the trailer.
Officers then performed a more complete search of the trailer and found 43 rounds of.22 caliber long rifle ammunition, 44 rounds of.38 special ammunition, and one round of.270 ammunition, all in the dresser. Ifrung also found a safe in the south closet of the trailer. Defendant gave Ifrung consent to search the safe and provided him with the combination. Inside the safe, Ifrung found a loaded black and brown.38 special revolver. Ifrung also found methamphetamine on the kitchen counter.
On that record, the trial court denied defendant's motion to suppress evidence, concluding that the search was permitted because Wilcox was on searchable probation.
DISCUSSION
Motion to Suppress Evidence
Defendant argues that the warrantless search of his trailer was unreasonable under the Fourth Amendment because no exception to the warrant requirement was proved. The People disagree. They argue that defendant consented to the searches and the searches were otherwise permissible because Wilcox was on searchable probation and lived in the trailer. We agree with the People. The searches were permissible because defendant consented to the searches.
In reviewing a trial court's ruling on a motion to suppress, we review factual findings for substantial evidence and make all reasonable factual inferences in favor of the ruling. (People v. Zamudio (2008) 43 Cal.4th 327, 342.) We exercise our independent judgment to determine whether a search occurred and whether any search was reasonable under the Fourth Amendment. (Ibid.; People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Gutierrez (2018) 21 Cal.App.5th 1146, 1152.)
The federal and California Constitutions prohibit unreasonable searches and seizures. (U.S. Const., 4th & 14th Amends.; Cal. Const., art. I, § 13.) “It is axiomatic that the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' ” (Welsh v. Wisconsin (1984) 466 U.S. 740, 748; see also Kyllo v. United States (2001) 533 U.S. 27, 31 [“With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.”].) California law applies federal constitutional standards to the review of search and seizure rulings. (People v. Rogers (2009) 46 Cal.4th 1136, 1156, fn. 8.)
“[An] established exception to the warrant requirement is when consent is given by one authorized to give it.” (People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004, 1011-1012; see also United States v. Rubio (9th Cir. 1983) 727 F.2d 786, 797 [“Once consent has been obtained from one with authority to give it, any expectation of privacy has been lost.”].)
Here, officers asked defendant and Wilcox to exit the trailer. Both did so. Officers then told defendant of their intent to conduct a protective sweep of the trailer. Defendant consented to the search. Officers then searched the trailer and found a shotgun and ammunition in plain view. Officers discovered that Wilcox was on probation and that he lived in defendant's trailer with him. Defendant consented to a second search of the trailer. When the safe was discovered, defendant provided the combination and consented to have the safe searched. At each step, defendant consented to the searches. No Fourth Amendment violation occurred.
Much of defendant's argument is premised upon his erroneous contention that officers entered the trailer to perform the protective sweep before defendant and Wilcox exited the trailer and defendant gave his consent to the search. Defendant's recitation of the facts is inconsistent with the record.
Assembly Bill No. 1950
1. Entitlement to Relief
Effective January 1, 2021, Assembly Bill 1950 amended sections 1203a and 1203.1 to limit the maximum term of probation a trial court is authorized to impose for most felony offenses to two years and most misdemeanor offenses to one year. (§§ 1203a, subd. (a), 1203.1, subds. (a) & (m), as amended by Stats. 2020, ch. 328, §§ 1, 2.) “[T]he … limitation[s] on … probation set forth in Assembly Bill … 1950 [are] ameliorative change[s] to the criminal law that [are] subject to the [In re] Estrada [(1965) 63 Cal.2d 740] presumption of retroactivity.” (People v. Sims (2021) 59 Cal.App.5th 943, 963-964; accord, People v. Quinn (2021) 59 Cal.App.5th 874, 883-885.) Therefore, the amendments to sections 1203a and 1203.1 apply to all cases not final on Assembly Bill 1950's effective date. (Estrada, at p. 742.)
As the parties agree, defendant's case was not final on January 1, 2021, and he was sentenced to a term of felony probation exceeding two years for a crime of conviction that is not a violent felony exempted from the two-year limit on felony probation. (§§ 1203.1, subd. (m), 667.5, subd. (c).) We agree. Defendant is entitled to the benefit of Assembly Bill 1950.
Possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1) is not a violent felony offense excluded from section 1203.1, subdivision (a)'s two-year limit on duration of felony probation by section 1203.1, subdivision (m).
2. Remedy
The parties disagree on the appropriate remedy-defendant contends we should modify his term of probation; the People contend we should remand the matter to the trial court to modify the term of probation. Because the three-year term of probation was negotiated as part of a plea agreement, we remand the matter for the trial court to modify the term of probation consistent with Assembly Bill 1950, and to permit the People and the trial court the opportunity to withdraw approval of the plea agreement in light of the required modification to the term of probation.
In People v. Stamps (2020) 9 Cal.5th 685 (Stamps), our Supreme Court concluded that a defendant was entitled to the benefit of an ameliorative change in the law-specifically, pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393), he was entitled to have the matter remanded for the trial court to exercise its discretion to strike a serious felony conviction enhancement in the interest of justice. (Stamps, at p. 699.) However, because the serious felony conviction enhancement was imposed as part of a negotiated stipulated sentence, if the trial court exercised its discretion to strike the enhancement, the People and the trial court were permitted to withdraw approval for the plea agreement. (Id. at pp. 707-708.) The defendant was not permitted “ ‘ “to whittle down the sentence ‘but otherwise leave the plea bargain intact ….' ”' ” (Id. at p. 706.)
This court reached the same conclusion in People v. Hernandez (2020) 55 Cal.App.5th 942 (Hernandez) (review granted Jan. 27, 2021, S265739), where we directed the trial court to strike prior prison term enhancements pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), but also concluded that the People and trial court must be permitted to withdraw approval for the negotiated plea. (Hernandez, at pp. 958-959.) We explained that the distinction between the discretionary nature of Senate Bill 1393 (permitting trial courts to strike serious felony enhancements) and the mandatory nature of Senate Bill 136 (prohibiting imposition of prior prison term enhancements for convictions not served for sexually violent offenses) was not dispositive to the issue of whether the People or a trial court must be permitted to withdraw from a plea agreement. (Hernandez, at p. 957.) Instead, we explained, we review “the history of the amendment[] to determine whether there was any intent [] ‘to change well-settled law that a court lacks discretion to modify a plea agreement unless the parties agree to the modification' to determine whether the district attorney can withdraw from the plea agreement.” (Ibid.; accord, Stamps, supra, 9 Cal.5th at pp. 701-702 [“In order to justify a remand for the court to consider striking his serious felony enhancement while maintaining the remainder of his bargain, defendant must establish not only that Senate Bill 1393 applies retroactively, but that, in enacting that provision, the Legislature intended to overturn long-standing law that a court cannot unilaterally modify an agreed-upon term by striking portions of it under section 1385.”].) We concluded that “there is no evidence the Legislature intended Senate Bill 136 to permit the trial court to unilaterally modify a plea agreement once the prior prison term enhancements are stricken.” (Hernandez, at p. 958.)
Like Senate Bills 1393 and 136, there is no evidence that the Legislature intended Assembly Bill 1950 to permit unilateral modification of plea agreements by shortening negotiated terms of probation. We therefore vacate the sentence and remand the matter to the trial court to impose a term of probation that conforms with Assembly Bill 1950 and to permit the People and the trial court an opportunity to accede to the shorter term of probation or withdraw from the plea agreement.
To be clear, we recognize that the Assembly and Senate Committees on Public Safety both explain that proponents of Assembly Bill 1950 assert in broad terms that shortening terms of probation is beneficial for society and probationers. For instance, the Senate Committee on Public Safety summarized a proponent's view that “probation supervision is most beneficial in the early part of a probation term” and shorter terms of probation “would enable probation officers to more efficiently manage their caseloads.” (Sen. Com. on Public Safety, Rep. on Assem. Bill No. 1950 (2019-2020 Reg. Sess.), as amended June 10, 2020, p. 5.) While those positions certainly support reduced terms of probation, they do not speak to whether Assembly Bill 1950 was intended to modify negotiated plea agreements.
3. Limitations on Future Sentencing Options
Defendant next argues that if the matter is remanded and the plea agreement is rescinded, the term of imprisonment for any new sentence cannot exceed the term agreed upon in the original plea agreement. We disagree.
In People v. Collins (1978) 21 Cal.3d 208, the court considered the proper procedure after an offense to which a defendant pled guilty pursuant to a plea agreement was decriminalized. (Id. at p. 212.) In Hernandez, we “acknowledge[d] the holding in Collins that allowed the prosecution to refile the previously dismissed charges as long as the defendant was not resentenced to a greater term than provided in the original plea agreement.” (Hernandez, supra, 55 Cal.App.5th at p. 959.) We then concluded that “Stamps did not extend Collins to permit such a” limitation of sentencing options in this situation. (Hernandez, at p. 959.) Stamps “instead held the People could completely withdraw from the plea agreement if the prior serious felony enhancement was dismissed.” (Hernandez, at p. 959.) The parties would thus be restored to the “ ‘status quo ante.' ” (Stamps, supra, 9 Cal.5th at p. 707.) We do not depart from Hernandez. Upon remand, if the plea agreement is vacated, the matter will be restored to the status quo ante and any eventual sentence will not be capped by the sentence imposed pursuant to the original plea agreement.
The court in People v. Griffin (2020) 57 Cal.App.5th 1088, 1099, disagreed with our conclusion. (Accord, People v. Houle (2021) 64 Cal.App.5th 395, 398.) The Griffin court commented that “Stamps never addressed the language in Collins capping the sentence that could be imposed on remand, and Stamps never addressed whether the trial court could properly impose a longer sentence on remand.” (Griffin, at p. 1099.) The Griffin court further found that the limitation of sentence imposed in Collins was more appropriate than the restoration to the status quo ante in Stamps because Senate Bill 136-like the decriminalization of an act to which the defendant had pled guilty in Collins-was an “ ‘external event[]' that simply rendered the plea agreement[] unenforceable.” (Griffin, at p. 1099.) We respectfully disagree with Griffin.
DISPOSITION
The sentence is vacated. The matter is remanded to the trial court to modify the term of probation to conform with Assembly Bill 1950 and permit the People and trial court an opportunity to withdraw from the plea agreement. In all other respects, we affirm.
[*] Before Hill, P. J., Levy, J. and Peña, J.