Opinion
H046520
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN ALEXANDER DAVIS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. Nos. 17CR02235, 17CR05048, 17CR06908)
After defendant Benjamin Alexander Davis was charged by complaint with drug and firearm offenses, he brought a motion to quash the search warrant and suppress the evidence seized which led to these charges. The trial court, after reviewing the sealed portion of the affidavit supporting the warrant in camera, denied his motion to quash and suppress. After a preliminary hearing, Davis was held to answer. He was charged by information and subsequently convicted by a jury on all charges, but he did not renew his motion to quash the search warrant prior to his trial. Davis was sentenced to a total term of eight years four months in prison.
On appeal, Davis renews his challenge to the search warrant, asking that this court review whether the affidavit supporting the warrant was properly sealed and if the motion to quash the warrant and suppress the evidence was properly denied. Davis also argues, citing People v. Dueñas (2019) 30 Cal.App.5th 1157, that the trial court erred in imposing fines and fees at sentencing without first determining that he had the ability to pay those assessments. Alternatively, if Davis is found to have forfeited his challenge to the fines and fees due to counsel's failure to timely object, he argues his counsel was constitutionally ineffective.
As explained below, we reject all of Davis's arguments and will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial procedural history
Davis was charged by complaint in Santa Cruz County Superior Court No. 17CR02235 (Case No. '2235), filed April 20, 2017, with possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), and possession of a controlled substance for sale (Health & Saf. Code, § 11378) with a prior controlled substance conviction within the meaning of section 1203.07, subdivision (a)(11).
Unspecified statutory references are to the Penal Code.
On August 11, 2017, the district attorney filed a second complaint (Santa Cruz County Superior Court No. 17CR05048) (Case No. '5048) accusing Davis of possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)), possession for sale of a controlled substance (Health & Saf. Code, § 11378) with a prior controlled substance conviction within the meaning of section 1203.07, subdivision (a)(11), and misdemeanor possession of an injection/ingestion device (Health & Saf. Code, § 11364, subd. (a)). The complaint further alleged that Davis committed the felony offenses while on bail or own recognizance release (§ 12022.1).
On September 11, 2017, in Case No. '2235, Davis filed a motion to quash the search warrant and suppress the evidence seized in executing that warrant. The motion was heard and denied on September 25, 2017.
On October 30, 2017, Davis was charged in a third complaint (Santa Cruz County Superior Court Case No. 17CR06908) (Case No. '6908) with sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), possession of a controlled substance for sale (Health & Saf. Code, § 11378) with special allegations that Davis committed the felony offenses while on bail or own recognizance release (§ 12022.1).
Preliminary examination on each of the three complaints took place on November 6, 2017. Following the hearings, Davis was held to answer on the charges and special allegations in all three complaints. On November 20, 2017, the district attorney filed separate informations in Case Nos. '2235, '5048, and '6908 against Davis.
On June 19, 2018, the trial court granted the district attorney's motion to consolidate the three cases. By amended information filed on July 11, 2018, Davis was charged with possession of a controlled substance while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a); count 1); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2); three counts of possession of a controlled substance for sale (Health & Saf. Code, § 11378; counts 3, 5, 7); possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count 4); and sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 6). The information further alleged that, as to count 7, Davis possessed more than 28.5 grams of methamphetamine (§ 1203.073) and as to counts 5 and 7, Davis committed those offenses while on bail (§ 12022.1).
At sentencing, the probation department informed the court that the amended information alleged a total of seven counts, but "there was no Count 6." The trial court indicated that counts 7 and 8 as set forth in the amended information would be treated as counts 6 and 7, respectively. Davis did not object below and does not argue on appeal that this was improper. We mention it only to explain why the amended information in the record on appeal does not list a count 6.
B. Trial
Santa Cruz County Sheriff's Deputy Christopher Hankes testified as an expert on narcotics and narcotics sales. On April 19, 2017, Hankes and a team of officers executed a search warrant for 561 30th Avenue in Santa Cruz. The warrant specifically named Davis and his codefendant Marcos de la Garza as targets.
De la Garza is not a party to this appeal.
The officers set up near the address and waited for de la Garza to arrive. When he pulled into the driveway, Hankes and other officers blocked his vehicle and placed him under arrest. In the trunk of de la Garza's vehicle, officers found two functional electronic scales, along with a plastic bag containing 7 grams of cocaine, and a jacket with $6,030 in cash in one of its pockets.
Hankes and a group of officers went to the second-floor apartment where Davis lived and knocked on the door, identifying themselves as sheriff's officers and announcing that they had a search warrant. After knocking and announcing between two and four times without response, Hankes broke down the door. Davis was in the bedroom inside. In the closet of that same bedroom, officers found a leather bag containing an unloaded .410-caliber bolt-action sawed-off shotgun and a loaded .38-caliber revolver. Officers also found syringes and a plastic bag containing $1,800 in cash in that closet.
In searching the bedroom, officers discovered some methamphetamine in a shot glass, methamphetamine powder scattered around the glass, an electronic scale, a box of plastic sandwich bags on top of the dresser, and a cellphone. On top of a desk, there was a methamphetamine pipe, a mirror with lines of methamphetamine cut across it, and two additional boxes of plastic sandwich bags. Inside the desk was a bag containing 17 grams of methamphetamine. Officers found two more cellphones on the bed.
In searching the rest of the residence, officers found seven gallon-sized plastic bags with methamphetamine residue, plastic sandwich bags, another electronic scale, and methamphetamine residue on a coffee table. There was also mail addressed to Davis in the residence, as well as a paycheck made out to him, and his driver's license reflecting his street address as 561 30th Avenue.
Hankes testified at length about text messages which were extracted from de la Garza's phone and from one of the phones found on Davis's bed. The phone recovered from Davis's bed contained images and text messages indicating that it belonged to Davis. That phone contained multiple text messages to and from Davis which Hankes opined established that Davis was selling narcotics. Hankes also found text messages indicating that Davis would accept weapons in exchange for drugs, as well as a message that Davis sent out to someone which read ".410 caliber bolt-action shotgun."
Hankes testified that certain text messages on de la Garza's phone indicated that he was also involved in selling narcotics.
Police were unable to unlock the other phones recovered from the residence.
On August 10, 2017, Hankes was patrolling in an unmarked vehicle with another officer in the "Beach Flats" area of Santa Cruz County, which has a "high density of drug trafficking." Hankes saw Davis drive by, so the officers began to follow him and eventually stopped his vehicle. In Davis's car, officers found two cellphones, a bag with an injection kit, eight syringes, an electronic scale, at least 20 plastic bags, a methamphetamine pipe, and a container with a small amount of a white crystalline substance inside. In the trunk was a locked safe which Hankes opened with a key from the key ring found in the ignition. Inside the safe were "22 rounds of nine-millimeter . . . ammunition, 20 ball ammunition and two hollow-point rounds." Officers searched Davis and found a baggie containing 4.4 grams gross weight of methamphetamine and $1,247 in cash.
On October 27, 2017, at around 1:30 p.m., Santa Cruz County Sheriff's Deputy Salvador Mejia was driving through the parking lot of a shopping mall in an unmarked vehicle when he saw Joe Weston, whom he knew to be a parolee-at-large, sitting in a parked vehicle. Mejia could see there were other people in the vehicle, so he called for assistance from other officers before trying to arrest Weston. When the other officers arrived, Mejia discovered that Davis, who also had a warrant out for his arrest, was one of the other passengers in the vehicle with Weston. Davis had 18 grams of methamphetamine in his pocket, and on the floorboard where Davis was sitting, officers found a bag containing 101 grams of methamphetamine and a digital scale.
The defense presented no evidence.
C. Verdict and sentencing
After deliberating, the jury found Davis guilty of possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 1); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2); three counts of possession of methamphetamine for sale (Health & Saf. Code, § 11378; counts 3, 5, 7); possession of ammunition as a felon (§ 30305, subd. (a)(1); count 4); and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 6). The jury found not true the special allegation that Davis possessed more than 28.5 grams of methamphetamine for sale when he was arrested on October 27, 2017.
Before the close of evidence, the jurors were informed by stipulation that Davis had suffered a prior felony conviction.
In a bifurcated proceeding, the trial court found true the special allegations that Davis was on bail during the commission of the offenses alleged in the information.
On December 4, 2018, the trial court sentenced Davis to a total term of eight years four months, consisting of the upper term of four years on count 1, two separate consecutive eight-month terms (one third the middle terms of two years) on counts 4 and 5, a consecutive one-year term (one third the middle term of three years) on count 6, plus a two-year term for the first allegation of committing an offense on bail. The trial court imposed, and stayed pursuant to section 654, separate concurrent two-year terms on counts 2, 3 and 7, and struck the punishment for the second allegation of committing an offense on bail. Davis was awarded 410 days of actual custody credit and 410 days of conduct credits under section 4019 for total credit of 820 days.
The trial court imposed a $2,400 restitution fine (§ 1202.4), along with a $2,400 parole revocation restitution fine (§ 1202.45) which was stayed pending completion of parole. In addition, the court imposed a $210 court operations fee (Gov. Code, § 70373) and a $280 court security assessment fee (§ 1465.8).
Davis timely appealed.
II. DISCUSSION
A. Motion to quash search warrant and suppress evidence
Davis filed a motion to quash the search warrant and to suppress evidence, alleging that the search warrant was not supported by probable cause. The trial court reviewed in camera the sealed portion of the search warrant affidavit and ruled that the material had been properly sealed in order "to protect the identity of people involved in the investigation." The court also found the information in the affidavit provided probable cause to issue the search warrant. Davis requests that this court conduct an independent review of the sealed search warrant affidavit to determine if the trial court should have disclosed additional information and if it properly denied his motion to suppress.
The Attorney General contends that, pursuant to People v. Lilienthal (1978) 22 Cal.3d 891 (Lilienthal), Davis forfeited his right to review by failing to renew his objections to the search warrant in the superior court after being held to answer to the complaint.
Section 1538.5, subdivision (m) provides in relevant part, "A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case . . . . Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of the property or the suppression of the evidence."
In Lilienthal, supra, 22 Cal.3d at page 896, the California Supreme Court held that section 1538.5, subdivision (m) "should be interpreted to require that the matter be raised in the superior court to preserve the point for review on appeal," reasoning that, "it would be wholly inappropriate to reverse a superior court's judgment for error it did not commit and that was never called to its attention." The Lilienthal court stated, however, that the defendant need not raise the matter in the superior court by a motion to suppress, and that raising the issue in the superior court via a section 995 motion was sufficient to preserve the Fourth Amendment issue. (Lilienthal, supra, at pp. 896-897.)
When Lilienthal was decided, a motion to suppress filed at or before the preliminary hearing would have been heard by a municipal court judge sitting as magistrate. Twenty years later, the superior courts and municipal courts were unified. Regardless, it is well-settled that "[t]he unification of the municipal and superior courts has not abrogated the need for a renewal of a motion to suppress evidence following certification of a case to the superior court." (People v. Garrido (2005) 127 Cal.App.4th 359, 364.) The Garrido court explained, "Lilienthal continues to apply postunification because the California Constitution, [former] article VI, section 23, subdivision (c), which created the unified court system, specifically provides for superior court review of preliminary hearing suppression motions." (Ibid.) "[T]he consensus is that the Lilienthal rule continues to apply even in the wake of trial court unification because that rule never rested on the distinction between the municipal court and the superior court; rather, it rests on the distinction between magistrates and superior court judges—a distinction that remains valid even following unification." (People v. Richardson (2007) 156 Cal.App.4th 574, 589.)
Because Davis failed to renew his motion to quash the search warrant and suppress the evidence seized in the superior court after he was held to answer, he may not appeal the denial of that motion.
However, even assuming he did not forfeit this claim, we conclude that it has no merit.
Section 1534, subdivision (a) specifies that the contents of a search warrant, including the supporting affidavit, become public record once the warrant is executed and returned. In People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), our Supreme Court held that some portion or even the entirety of a search warrant affidavit may remain sealed to protect the identity of a confidential informant. (Id. at pp. 971-975.)
Hobbs explains that "[o]n a properly noticed motion by the defense seeking to quash or traverse the search warrant, the lower court should conduct an in camera hearing pursuant to the guidelines set forth in [Evidence Code] section 915, subdivision (b), and this court's opinion in [People v.] Luttenberger [(1990)] 50 Cal.3d [1,] 20-24." (Hobbs, supra, 7 Cal.4th at p. 972.) "It must first be determined whether sufficient grounds exist for maintaining the confidentiality of the informant's identity. It should then be determined whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid revealing the informant's identity." (Ibid.)
"[I]f the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant (Pen. Code, § 1538.5), the court should proceed to determine whether, under the 'totality of the circumstances' presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was 'a fair probability' that contraband or evidence of a crime would be found in the place searched pursuant to the warrant." (Hobbs, supra, 7 Cal.4th at p. 975.)
We have reviewed the sealed and public portions of the search warrant affidavit. We conclude that the court properly ordered the sealed portion of the transcript to remain sealed to protect the identity of the confidential informant. (Hobbs, supra, 7 Cal.4th at pp. 972-973.)
Additionally, we find that under the totality of circumstances presented in the search warrant affidavit, there was a fair probability that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. (Hobbs, supra, 7 Cal.4th at p. 975.) Therefore, the court properly denied Davis's motion to quash the search warrant and suppress evidence.
B. Dueñas
Davis argues that the trial court erred by imposing fines and fees, and by not staying the $2,400 restitution fine, without first holding a hearing on his ability to pay as required by People v. Dueñas, supra, 30 Cal.App.5th 1157.
1. Forfeiture
The Attorney General argues that Davis failed to object to these fines and fees at his sentencing hearing and has therefore forfeited the claim. As we discuss below, because any sentencing error in this case was harmless, we need not address the question of forfeiture.
2. Ability to pay
Presently, the Courts of Appeal are split on whether Dueñas was correctly decided (see Santos, supra, 38 Cal.App.5th at pp. 926-927 [applying Dueñas]; People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [expressing concern over due process analysis in Dueñas]; People v. Petri (2020) 45 Cal.App.5th 82, 90 [finding Dueñas unpersuasive]). We need not consider the validity of Dueñas, however, because any error in this case was harmless.
The issue is pending before the California Supreme Court, which granted review in People v. Kopp (2019) 38 Cal.App.5th 47 (review granted Nov. 13, 2019, S257844), and asked the parties to brief the following issues: whether a trial court must consider a defendant's ability to pay before imposing fines, fees and assessments, and, if so, which party bears the burden of proof regarding the defendant's inability to pay. Until the Supreme Court resolves the burden of proof question, we adhere to our conclusion in Santos that the burden is on the defendant, not the prosecution, to demonstrate an inability to pay. (Santos, supra, 38 Cal.App.5th at p. 934.)
We review federal constitutional errors under the harmless-beyond-a-reasonable-doubt test for prejudice set forth in Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Johnson (2019) 35 Cal.App.5th 134, 140 (Johnson) [finding Dueñas error harmless under Chapman]; People v. Jones (2019) 36 Cal.App.5th 1028, 1030-1031 (Jones) [same].) Any error was harmless if the record demonstrates that defendant could not have established an inability to pay. That is the case here.
Davis was sentenced to a prison sentence of eight years four months. Davis is in his mid-30s, earned $28 per hour at his most recent job prior to incarceration, and he believed that same employer would hire him upon his release from custody. In addition, there is no reason to believe Davis will be unable to perform work in prison. "Wages in California prisons currently range from $12 to $56 a month. [Citations.] And half of any wages earned (along with half of any deposits made into [a defendant's] trust account) are deducted to pay any outstanding restitution fine." (Jones, supra, 36 Cal.App.5th at p. 1035.)
Davis urges this court to "follow the path it charted in Santos," and remand the matter for a hearing on his ability to pay. However, all the evidence in the record demonstrates that Davis is on a different path than the defendant in Santos.
In Santos, the defendant's counsel noted at the sentencing hearing that his client was indigent. (Santos, supra, 38 Cal.App.5th at p. 928.) Furthermore, Santos's probation report noted that he was: (1) homeless and could not sustain employment; (2) was bipolar and schizophrenic; and (3) had a back injury for which he received monthly Social Security disability benefits. (Id. at p. 933.)
In this case, Davis informed the probation department that he has no history of mental health problems, is "in good physical health," had worked "on and off for the past eight to ten years" at a job which payed him $28 per hour and which he believed would hire him again upon his release. Davis also indicated that he had no assets and approximately $30,000 in private debt, consisting of "school, medical bills, and credit card debt." While this is not insignificant, it does not suggest that Davis would be unable to pay the fines and fees imposed. Prior to his arrest, Davis was able to maintain a residence for himself and pay for at least one cell phone, if not more, in connection with his narcotics dealing. He also managed to post bail in both Case Nos. '2235 and '5048.
Bail was set at $75,000 in Case No. '2235 but we could find no reference to the amount of bail set in Case No. '5048. --------
As a result, we conclude that any error was harmless. (Johnson, supra, 35 Cal.App.5th at p. 139; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 ["defendant's ability to obtain prison wages and to earn money after his release from custody" are properly considered when determining whether a defendant has the ability to pay].)
III. DISPOSITION
The judgment is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.