Opinion
F080792
11-14-2023
THE PEOPLE, Plaintiff and Respondent, v. TOBY LEE COFFEY, Defendant and Appellant.
Erica Gambale and Mi K. Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, for Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF175954A Michael G. Bush and David R. Zulfa, Judges.
Judge Bush presided over the motion to suppress hearing. Judge Zulfa presided over the plea and sentencing hearings.
Erica Gambale and Mi K. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, for Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
This matter returns to us on transfer from our Supreme Court after its decision in People v. Prudholme (2023) 14 Cal.5th 961 (Prudholme), with directions to vacate our prior opinion and reconsider.
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 and further agree, in light of our Supreme Court's decision in Prudholme, that defendant's term of probation should be reduced to two years. We reduce defendant's term of probation to two years. As modified, 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 trial 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.
On October 7, 2021, we issued our now vacated opinion.
On November 10, 2021, defendant filed a petition for review.
On September 21, 2023, our Supreme Court transferred the matter to us with directions to vacate our decision and reconsider in light of the decision in Prudholme, supra, 14 Cal.5th 961.
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-caliber special ammunition, and one round of .270-caliber 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-caliber 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 searches of his trailer were 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 1950
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.) Our Supreme Court has concluded that Assembly Bill 1950 is retroactive pursuant to In re Estrada (1965) 63 Cal.2d 740. (Prudholme, supra, 14 Cal.5th at p. 969.) Therefore, the amendments to sections 1203a and 1203.1 apply to all cases not final on Assembly Bill 1950's effective date. (Prudholme, at p. 969; Estrada, at p. 742.)
As the parties agree, as do we, 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).) 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).
In Prudholme, our Supreme Court clarified the appropriate remedy when a defendant who entered into a plea agreement for a set term of probation is entitled to relief pursuant to Assembly Bill 1950. (Prudholme, supra, 14 Cal.5th at pp. 978-979.) "[B]y enacting Assembly Bill 1950, the Legislature intended that its new limitations on the maximum term of probation in amended section 1203.1 should be applied to existing, nonfinal plea agreements while otherwise maintaining the remainder of the bargain." (Prudholme, at p. 979.) "The proper remedy ... is to modify the judgment to reflect the new probationary term of two years." (Ibid.)
After transfer by our Supreme Court, the People concede that "the proper remedy [is] to modify the judgment to reflect the new probationary term of two years." We agree and modify defendant's term of probation accordingly.
DISPOSITION
Defendant's term of probation is modified to two years. As modified, we affirm.
[*] Before Hill, P. J., Levy, J. and Pena, J.