Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05NCR03167
SIMS, J.
After his motion to suppress was denied, defendant Ronald Dean Glaser pled no contest to possession of methamphetamine for the purpose of sale (Health & Saf. Code, § 11378; undesignated statutory references are to the Health and Safety Code). Sentenced to 10 years in state prison, defendant previously appealed his conviction. (People v. Glaser (Jan. 22, 2008, C053974) [nonpub. opn.] (Glaser).)
In the prior appeal, this court initially affirmed the trial court’s decision to deny defendant’s motion to suppress. (Glaser, supra, C053974.) After granting rehearing, however, we concluded, “the denial of the motion to suppress, on the ground defendant consented to the search of a safe in the trunk of his car, [was] erroneous.” (Id. at p. 1.) Accordingly, we issued a limited remand directing the trial court to “make a determination with respect to whether there was probable cause to search the safe in the absence of defendant’s consent.” (Id. at p. 12.) We further directed the trial court to resentence defendant, should the motion to suppress be denied again.
On remand, the trial court reviewed the transcript from the February 8, 2006, hearing on defendant’s motion to suppress and heard oral argument from both sides. After taking the matter under submission, the trial court issued a written ruling denying defendant’s motion. The trial court later resentenced defendant to an aggregate term of 10 years in state prison, consistent with defendant’s plea agreement. Defendant appeals his conviction and his sentence.
The facts are taken from the prior opinion on rehearing.
“On October 28, 2005, while on duty, City of Colusa Police Officer Terry Baker spotted a black Honda Civic parked on the side of the road near a residence that Officer Baker testified is known within the county to be a ‘drug residence.’ [Footnote omitted.] The Civic was facing oncoming traffic with its headlights on. Officer Baker pulled over and stopped his patrol car about a quarter of a mile behind the Civic to ‘observe.’ Shortly thereafter, the driver of the Civic (later identified as defendant) drove away.
“Officer Baker followed defendant and realized he could not read the Civic’s license plate from 50 feet, as required by the Vehicle Code. (Veh. Code, § 24601.) [Footnote omitted.] In fact, there was an acrylic cover on the license plate that ‘obscured the light,’ rendering the plate ‘illegible’ until Officer Baker was only one or two car lengths behind defendant.
“Once Officer Baker was able to read the license plate, he called the dispatcher, gave her the license plate number, and told her he was making a traffic stop. Officer Baker pulled defendant over and approached the car, illuminating the car’s interior with his flashlight. Officer Baker told defendant that he pulled him over because of a defective license plate light. Officer Baker asked to see defendant’s identification, which defendant produced. He then asked if defendant was on probation or parole, and defendant said he was not.
“While talking to defendant, Officer Baker observed that defendant seemed nervous. Defendant would not make eye contact with Officer Baker, and defendant’s pupils were constricted even though it was dark outside. Based on his education and experience, Officer Baker suspected defendant might be under the influence of an illegal drug. He asked defendant if he was on any illegal drugs at that time. Defendant said he was not currently using, but he had been ‘arrested for drugs years ago.’
The trial court found Officer Baker to be qualified as an expert in assessing whether someone may be under the influence of an illegal drug.
“Continuing with his investigation, Officer Baker asked defendant if he could search him. Defendant replied: ‘Yes, you can.’ [Footnote omitted.] Thus, with defendant’s consent, Officer Baker patted down defendant.
“Soon, additional police officers arrived and Officer Baker asked defendant for permission to search the car. Defendant consented to this search as well. [Footnote omitted.] While Officer Baker was searching the passenger compartment of the car, the other officers conducted a field sobriety test on defendant.
Presumably, defendant passed the sobriety test as the officers later allowed defendant to drive away.
“Finding nothing in the passenger compartment, Officer Baker removed the keys from the ignition and opened the trunk. Inside the trunk, Officer Baker saw ‘a Brinks safe.’ He took one of the keys from the same key ring he had removed from the ignition and put it into the safe’s keyhole. Defendant immediately told Officer Baker to ‘stop the search.’ Officer Baker stopped searching but his fellow officer, Todd James, who has prior experience with detecting methamphetamine, told Officer Baker that he smelled ‘a chemical odor that was consistent with methamphetamine’ coming from the right side of the trunk, near the safe. Officer Baker, however, testified that he did not smell anything. Officer Baker proceeded to open the safe without defendant’s consent.
“Inside the safe, Officer Baker found ‘two hypodermic syringes, a glass smoking pipe commonly used for smoking methamphetamine, [] eight plastic wraps containing a crystal substance [he] believed to be methamphetamine,’ and a digital gram scale. Defendant was immediately arrested for possession of suspected methamphetamine and drug paraphernalia.
The crystal substance was tested by another officer and it all ‘came back presumptively positive for methamphetamine.’
“As Officer Baker was putting defendant in the back of the patrol car, defendant ‘stated that he wanted to assist TAGMET by purchasing drugs off of people....’ After discussing it with his fellow officers and his sergeant, Officer Baker released defendant with charges pending. He never wrote defendant a traffic citation.
According to the Internet at www.rbpd.org/tagmet, TAGMET is the ‘Tehama and Glenn Methamphetamine Enforcement Team.’ The website indicates that TAGMET was created in 1998 ‘to combat all forms of controlled substance trafficking and manufacturing in Tehama and Glenn Counties through an aggressive multi-jurisdictional law enforcement approach.’
“Prior to trial, defendant filed a Penal Code section 1538.5 motion to suppress the evidence found as a result of the search on October 28, 2005. That motion was initially heard in conjunction with the preliminary hearing. Defendant’s motion was denied. Later, defendant pled not guilty and renewed his motion to suppress in superior court pursuant to Penal Code section 1538.5, subdivision (i). Defendant’s renewed motion to suppress was heard by the same judge who served as the magistrate judge at the preliminary hearing.
“At the hearing on his renewed motion to suppress, defendant argued: ‘The withdrawal of the consent about the search of the car at the point just prior to the safe being opened was never addressed by this Court and there was no finding.’ The court clarified its prior ruling: ‘[M]y ruling was not very artful, but I found that there was consent and I found that that consent was never -- based upon [defendant’s] own testimony, really, was never effectively withdrawn.’
“Defendant subsequently pled no contest to possession of methamphetamine for the purpose of sale, along with the enhancements for his prior convictions (§ 11370.2, subd. (c)) and his prior prison terms (Pen. Code, § 667.5) in exchange for a 10-year ‘cap’ on his prison sentence. Consistent with his plea, the trial court sentenced defendant to an aggregate term of 10 years in state prison.” (Glaser, supra, C053974.)
Defendant appealed; we reversed and remanded for the limited purpose of having the trial court rule on whether the officers had probable cause to search the locked safe inside defendant’s trunk. (Glaser, supra, C053974.) On remand, the trial court reviewed the transcript from the February 2006 hearing and heard argument from both sides. The trial court then took the matter under submission.
The trial court subsequently issued a written decision denying defendant’s motion to suppress. In reaching its decision, the court found Officer James’s testimony that he smelled an odor consistent with methamphetamine emanating from the trunk, near the safe, to be credible. The court further explained: “the Court finds James’s experience was a sufficient basis for him to testify about the smell of methamphetamine, and thus the Court must and will consider additional factors. The fact that Baker did not smell the odor is not dispositive. Although Defendant suggests that Baker should have been able to detect the odor because he was an expert, he was only found to be an expert in evaluating persons to be under the influence of narcotics. There are other reasonable explanations for why Baker never detected the odor, even after the safe was opened; for example, he may never have been trained to recognize such smells. Second, even if crystal methamphetamine is odorless, that does not make James’s testimony incredible. Baker testified that although the wraps of methamphetamine were heat-sealed, he did not test them to see if air leaked. There also was no testimony about the paraphernalia, which also could have been the source of the smell. James never testified that the smell was coming from the safe; he merely stated that it was coming from the trunk of the car. It is reasonable to believe that he could have smelled methamphetamine in the trunk, even if the safe contained odorless crystal methamphetamine. There was also no evidence that a metal box could contain the smell.”
The court found probable cause based on the smell emanating from defendant’s trunk, defendant’s apparent intoxication, defendant’s admission of a prior arrest for possession of paraphernalia, and defendant’s presence at a known drug residence. The court then resentenced defendant to 10 years in state prison, consistent with his plea agreement. Defendant appeals.
Defendant makes the following claims on appeal: (1) there is insufficient evidence to support the trial court’s denial of his motion to suppress; (2) the initial detention was unlawful; (3) the detention was unduly prolonged; (4) the trial court erred in failing to obtain a supplemental probation report on remand; (5) the trial court erred in imposing the upper term without submitting the aggravating facts to a jury; (6) the trial court erred in holding a sentencing hearing without defendant present; and (7) the trial court miscalculated his presentence custody credits. We shall modify the abstract of judgment to reflect the correct calculation of credits and otherwise affirm the judgment.
I
DISCUSSION
A. Unlawful Detention
Defendant contends the initial detention was unlawful and the stop unduly prolonged. Defendant made these same arguments in his previous appeal and we rejected them. (Glaser, supra, C053974.) Defendant remains bound by that decision. (Kowis v. Howard (1992) 3 Cal.4th 888, 894 [once appellate court decides cause by written opinion after matter was fully briefed and parties given opportunity for oral argument, “law of the case” doctrine precludes relitigation of same issue].)
B. Consent to Search the Trunk
Defendant also contends the court erred in finding that defendant consented to a search of his trunk. Defendant’s claim is barred by res judicata and misconstrues the scope of our remand.
Defendant failed to raise this issue in his prior appeal, though he could have. Thus, the issue is barred by the doctrine of res judicata. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897 [doctrine of res judicata precludes raising in subsequent appeal, legal theories that could have been raised in prior appeal]; see also People v. Wycoff (2008) 164 Cal.App.4th 410, 415.)
Moreover, “[i]n an appeal following a limited remand, the scope of the issues before the court is determined by the remand order. [Citations.]” (People v. Murphy (2001) 88 Cal.App.4th 392, 396-397; People v. Deere (1991) 53 Cal.3d 705, 713). Here, the remand order limited the trial court’s action to determining “whether there was probable cause to search the safe....” (Glaser, supra, C053974 [italics added].) We already affirmed the trial court’s finding that defendant consented to the officers’ search of his trunk.
C. Insufficiency of the Evidence
Defendant also argues there is insufficient evidence to support the trial court’s finding that there was probable cause to search the locked safe found inside his trunk. We disagree.
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
“Hornbook law states that the Fourth Amendment to the United States Constitution permits the warrantless search of an automobile with probable cause. (See United States v. Ross (1982) 456 U.S. 798, 804-809 [72 L.Ed.2d 572, 580-584] (Ross); Carroll v. United States (1925) 267 U.S. 132, 153-154 [69 L.Ed. 543, 551-552]; People v. Chavers (1983) 33 Cal.3d 462, 467-468.) The scope of such a warrantless search is defined by the nature of the items being sought: ‘If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.’ (Ross, supra, at pp. 824-825.)” (People v. Strasburg (2007)148 Cal.App.4th 1052, 1059.)
On remand, the trial court found there was probable cause to search the locked safe in defendant’s trunk. The court’s decision was based on: (1) Officer James’s testimony that he smelled an odor associated with methamphetamine emanating from the trunk; (2) defendant’s admission of a prior arrest for possessing drug paraphernalia; (3) defendant’s apparent intoxication at the time he was stopped; (4) and defendant’s presence at a known drug residence. Defendant claims it was error for the court to rely on these facts. Defendant is wrong.
Defendant argues that Officer James’s testimony regarding the odor he smelled is incredible because it is inconsistent with Officer Baker’s testimony that he did not smell anything and it was physically impossible for Officer James to smell the methamphetamine in defendant’s safe because it was crystallized and wrapped in heat-sealed bundles. The trial court ruled otherwise.
The trial court found Officer James’s testimony to be credible and not inconsistent with Officer Baker’s testimony. The court based its decision not only on Officer James’s experience, but on Officer Baker’s lack of experience. We will defer to the trial court’s credibility determination. (See People v. Boyer (2006) 38 Cal.4th 412, 444.)
The trial court also found that even if the drugs were odorless and heat-sealed, which was in doubt, the smell may have been coming from something other than the methamphetamine itself. We conclude that such a finding was a reasonable inference based on the evidence before the court.
Defendant also argues that it was error for the court to find probable cause based on the officers’ initial impression that defendant was intoxicated because, ultimately, defendant was allowed to drive away. Defendant’s claim ignores the fact that the defendant himself testified that he was undergoing field sobriety tests at the time the officers were searching his car. Thus, the officers’ decision to allow defendant to drive away, presumably finding he was not intoxicated, could not have been made until after the safe was opened.
Citing this court’s opinion in People v. Sandoval (2008) 163 Cal.App.4th 205 (Sandoval), defendant further contends it was error for the trial court to rely on his prior conviction as a basis for probable cause. Relying on People v. Glaser, supra, 11 Cal.4th 354, defendant also claims the trial court erred in relying on defendant’s presence at a known drug residence to find probable cause.
Unlike the circumstances involved in defendant’s 1995 appeal, here, defendant was not just “seen near” a known drug residence. (People v. Glaser, supra, 11 Cal.4th at p. 374.) Nor was he, like the defendant in Sandoval, simply “present when a residence [was] searched for drugs.” (Sandoval, supra, 163 Cal.App.4th at p. 213.) Here, defendant was seen parked in front of a known drug residence, appeared to be intoxicated when he was stopped, admitted having been previously arrested for possessing drug paraphernalia, had a locked safe in his trunk, and an odor associated with methamphetamine was emanating from the trunk.
Under these circumstances, we conclude the trial court correctly found there was probable cause to search the safe in defendant’s trunk. (See People v. Strasburg, supra, 148 Cal.App.4th at p. 1059, citing People v. Dey (2000) 84 Cal.App.4th 1318, 1320-1322 [finding probable cause when smell of marijuana was emanating from car parked in public parking lot].)
The recent United States Supreme Court decision in Arizona v. Gant (2009) ___ U.S. ___ [173 L.Ed.2d 485] (Gant), has no impact on the decision in this case. In Gant, the Supreme Court ruled only that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” (Id. at p. 501) The Supreme Court specifically noted that “[i]f there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U.S. 798, 820-821, 72 L.Ed.2d 572 (1982), authorizes a search of any area of the vehicle in which the evidence may be found.” (Id. at p. 498.)
D. Supplemental Probation Report
Defendant contends the trial court erred in failing to obtain a supplemental probation report before resentencing defendant.
Both Penal Code section 1203.2, subdivision (b), and California Rules of Court, rule 4.411(c), require ordering an updated probation report for sentencing proceedings that “‘occur a significant period of time after the original report was prepared.’” (People v. Dobbins (2005) 127 Cal.App.4th 176, 180 (Dobbins).) The Dobbins court added: “The Advisory Committee Comment to the rule suggests that a period of more than six months may constitute a significant period of time, even if the defendant remains incarcerated and under the watchful eyes of correctional authorities.” (Id. at p. 181.)
Here the probation report was prepared in June 2006 and defendant was resentenced in May 2008. Although defendant remained incarcerated this entire period, the 23 months is substantially more than the six months the Advisory Committee Comment suggested as a significant period of time. (Advisory Com. com., West’s Cal. Rules of Court (2008 ed.) foll. rule 4.411, p. 236.) The trial court erred in failing to obtain a supplemental probation report before resentencing. We will not reverse, however, unless it is reasonably probable defendant would have obtained a more favorable result if not for the error. (Dobbins, supra, 127 Cal.App.4th 176, 182; People v. Watson (1956) 46 Cal.2d 818, 836.)
Despite defendant’s claim of error, he makes no argument that he would have obtained a more favorable result had a supplemental probation report been obtained. In any event, a review of the record shows that defendant was ineligible for probation because he served two prior prison terms (Pen. Code, § 1203, subd. (e)), he was sentenced consistent with his plea, and the upper term was chosen based on defendant’s criminal history. Under these circumstances, it is not reasonably probable that a supplemental probation report would have made a difference in the decision whether to grant probation or impose the upper term. The error in failing to obtain a supplemental probation report was harmless.
E. Upper Term
Defendant also contends that the upper term sentence imposed on count two contravenes the holdings of Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. Defendant is mistaken.
Defendant was sentenced after the Legislature amended Penal Code section 1170 to give the trial court broad discretion to impose the lower, middle, or upper term by simply stating its reasons for imposing the selected term. As amended, the upper term, not the middle term, is the statutory maximum that may be imposed without additional factfinding. (People v. Sandoval (2007) 41 Cal.4th 825, 850-851.)
Here, the trial court imposed the upper term because defendant “has prior felony convictions and... [h]e’s not been successful on parole.” Imposing the upper term for these reasons was well within the trial court’s discretion. Because the upper term is now the statutory maximum, the trial court did not violate defendant’s Sixth Amendment rights when it sentenced him to the upper term.
F. Hearing on Defendant’s Sentence
Defendant contends his Sixth Amendment rights under the confrontation clause were violated when the trial court conducted a hearing on defendant’s sentence without defendant present. We disagree.
The court imposed sentence on May 14, 2008; defendant was present at that hearing. On June 6, 2008, the court held a hearing to correct an error in defendant’s sentence:
“What happened, [defense counsel], who’s present on behalf of [defendant], is the Court used the wrong verbage [sic] by staying the terms of the enhancements. You cannot stay them unless it involves a 654 issue. As I understand it, the correct verbage [sic] would be to strike the enhancements in order to achieve the agreed upon 10 year sentence.
“Do you agree to that [defense counsel]?
“[Defense counsel]: I agree with that.”
Thus, contrary to defendant’s claim, he was not “sentenced” on June 6, 2008, and his presence was not required. “Section 977 permits a felony defendant, with leave of court, to waive his or her presence at all stages of the trial other than arraignment, plea, presentation of evidence, and sentencing.” (People v. Coddington (2000) 23 Cal.4th 529, 629 (Coddington), overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) There is, however, no waiver in the record.
“Assuming but not deciding, that [a hearing to correct defendant’s sentence to be consistent with his plea agreement] is subject to the statutory written-waiver requirement [citations] nothing in the record suggests that [defendant] suffered any prejudice as a result of his absence [at the hearing].” (Coddington, supra, 23 Cal.4th at p. 630.)
G. Conduct Credits
Defendant makes the following claims regarding his conduct credits: (1) the trial court erroneously omitted from the amended abstract of judgment the 138 days of credit he received prior to his initial sentencing in October 2006, and (2) the trial court failed to calculate his presentence conduct credits on remittitur, awarding him only 50 days of custody credits. The People concede the errors. Having reviewed the applicable law and the record, we accept the People’s concession.
The People agree that defendant was in custody for a total of 50 days while awaiting resentencing. Presentence conduct credit for the time defendant spent in custody is calculated under Penal Code section 4019 “‘by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]’ [Citation.]” (People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14.) The number 50, divided by four and rounded down to the nearest whole number, equals 12; 12 multiplied by two equals 24; 50 actual days plus 24 conduct days totals 74 days of presentence custody credit. We will modify the judgment accordingly. (People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence may be corrected at any time].)
DISPOSITION
The judgment is modified to provide for an additional 24 conduct days on the 50 days defendant was in jail prior to his resentencing. As modified, the judgment is affirmed.
The trial court is directed to prepare a third amended abstract of judgment reflecting this modification, indicating that conduct credits were awarded pursuant to Penal Code section 4019. The trial court is further directed to amend the abstract of judgment to include the 138 days of credit earned by defendant prior to his sentencing in October 2006, and to forward a certified copy of said third amended abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.