Opinion
F060162
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. DEREK DELANE HALL, Defendant and Appellant.
Law Office of Allison H. Ting and Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. MCR028020 and MCR034947)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Jennifer R. S. Detjen, Judge.
Law Office of Allison H. Ting and Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant/defendant Derek Delane Hall pleaded no contest to multiple narcotics-related offenses and was allowed to remain on bail pending his sentencing hearing in the Superior Court of Madera County case Nos. MCR028020 and MCR031239. On the day of the sentencing hearing, defendant failed to appear, a bench warrant was issued, and narcotics agents set up a surveillance of his residence. Defendant was seen loading items into his vehicle and then he drove away. An agent conducted a traffic stop, arrested defendant on the bench warrant, searched his vehicle, and found narcotics. As a result, defendant was charged with additional narcotics offenses in case No. MCR034947.
Defendant filed a motion to suppress the evidence found during the warrantless search of his vehicle and argued the agent lacked probable cause and the search was not valid as incident to his arrest. The court denied defendant's suppression motion.
On appeal, defendant challenges the court's denial of his suppression motion in case No. MCR034947. He also challenges the calculation of his conduct credits and the court's imposition of various fees.
FACTUAL AND PROCEDURAL HISTORY
OF CASE NOS. MCR028020 and MCR031239
Case No. MCR028020 The following facts are from the probation report, which served as the factual basis for defendant's plea in case No. MCR028020.
On February 22, 2007, members of the Madera County Narcotics Enforcement Team (MADNET) assisted officers from the Madera County Probation Department with a probation search of Brian Brown and his residence. When the officers arrived, they found defendant hiding at the end of a hallway. An agent asked defendant for his consent to search him and defendant said to go ahead. The agent found $86 in cash, a set of car keys, and two small Ziploc bags of cocaine base in defendant's pants pockets. The agent also searched defendant's vehicle and found $600.
On December 18, 2007, an information was filed in case No. MCR028020, charging defendant with possession of cocaine base for sale with special allegations for prior convictions. Defendant pleaded not guilty, the matter was set for trial, and defendant was released on bail. Case No. MCR031239 The following facts are from the probation report, which served as the factual basis for defendant's subsequent no contest pleas, together with the preliminary hearing in case No. MCR031239.
On March 18, 2008, Officer Giachino Chiaramonte of MADNET followed defendant's Chevrolet truck and then ordered another officer to conduct a traffic stop on the vehicle. Defendant's two-year-old daughter was also in the truck and was not in a child-restraint seat.
Chiaramonte testified that officers searched defendant's vehicle and found a plastic bag under the passenger seat which contained over 60 grams of marijuana. The officers also found a spray can of "Liquid Wrench" with a hidden bottom compartment. Chiaramonte unscrewed the can's false bottom and found 6.5 grams of cocaine, seven plastic bags, each of which contained 1.7 grams of cocaine base, five plastic bags, each of which contained 0.2 grams of cocaine base, and a rock of cocaine base which weighed 1.0 grams.
The officers also executed a search warrant for defendant's residence on Barcelona Way in Madera. There was $700 in cash in two nightstands in the master bedroom. In the garage, the officers found the following items inside a cooler: a bag with 28.9 grams of cocaine, a straight blade, three packages containing numerous smaller resealable plastic bags, a digital scale with cocaine residue, and a Pyrex measuring cup with white residue. The cooler also contained three large bags of marijuana, which weighed over 100 grams. A refrigerator in the garage contained an open box of baking soda. Officer Chiaramonte testified that baking soda is used to convert cocaine into cocaine base. The consolidated information
Defendant filed a motion to suppress in case No. MCR031239, and argued his vehicle was illegally searched on March 18, 2008. The court denied the motion and found defendant's vehicle was included within the terms of the search warrant, the vehicle was seen at defendant's house, and the traffic stop was performed when defendant left the house in the vehicle and the officers were about to execute the search warrant. Defendant has not challenged this decision in this appeal.
On December 8, 2008, a consolidated information was filed in case Nos. MCR028020 and MCR031239, charging defendant with count I, possession of cocaine base for sale, committed on or about February 22, 2007 (Health & Saf. Code,§ 11351.5). Defendant was also charged with committing the following offenses on or about March 18, 2008: count II, child endangerment (Pen. Code, § 283 a, subd. (a)); counts III and IV, transportation of cocaine base (§ 11352, subd. (a)); count V, possession of cocaine base for sale; count VI, transportation of marijuana (§ 11360, subd. (a)); count VII, possession of cocaine for sale (§ 11351); count VIII, possession of marijuana for sale (§ 11359).
All further statutory references are to the Health and Safety Code unless otherwise indicated.
As to counts I, III, IV, V, and VII, it was further alleged defendant had three prior narcotics-related convictions (§ 11370.2, subd. (a)), and as to all counts, it was alleged defendant served three prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant's pleas to the consolidated information
On February 6, 2009, defendant pleaded no contest to counts I and III of the consolidated information and admitted two prior narcotics-related convictions, with a stipulated term of 11 years. The court dismissed the remaining charges and allegations. The parties stipulated to the probation report as the factual basis for the pleas in case Nos. MCR028020 and MCR031239.
As part of the negotiated disposition, defendant was allowed to remain on bail pending sentencing. Defendant was ordered to report to the probation officer to schedule an appointment. The court set the sentencing hearing for April 13, 2009. Defendant's failure to appear
On April 1, 2009, the probation officer advised the court that defendant failed to appear for his appointment on February 18, 2009.
On April 13, 2009, defendant failed to appear for the sentencing hearing, and the court issued a no-bail bench warrant for defendant's arrest.
FACTS AND PROCEDURAL HISTORY OF
CASE NO. MCR034947
Defendant's appeal in this case is based on his challenge to the lawfulness of the warrantless search of his vehicle on April 13, 2009, which resulted in felony charges being filed in case No. MCR034947. Defendant's arrest and the search of his vehicle
As we will explain, post, the following facts are from the court's evidentiary hearing on defendant's motion to suppress evidence obtained during the April 13, 2009, search of his vehicle, which is the disputed issue in this appeal.
As set forth ante, defendant remained on bail pending his sentencing hearing for his no contest pleas to the consolidated information, and he failed to appear for his sentencing hearing on April 13, 2009.
On the morning of April 13, 2009, MADNET Agent Brian Esteves was advised that defendant failed to appear and a no-bail bench warrant had been issued for his arrest. Esteves testified that he already knew defendant because he had previously arrested defendant for the sale of cocaine base, and he participated in surveillance of defendant as part of a parole or probation search. Esteves testified he also knew that other MADNET officers had previously arrested defendant for possession for sale. Esteves testified he spoke to Officer Chiaramonte, and Chiaramonte said he had arrested defendant during that prior investigation. Esteves testified he had read the reports about that incident.
Esteves also testified that based on that information, he was aware that defendant used his vehicle to transport and possess narcotics for sale, and that defendant hid narcotics in obscure places in his vehicle, such as under the hood and in the center compartment.
At the evidentiary hearing on defendant's suppression motion, defendant repeatedly raised hearsay objections to Agent Esteves's testimony about what Chiaramonte and other officers had told him about defendant's activities. The court held Esteves's testimony was not admissible for the truth of the matter, but it was admissible for the limited purpose of showing what kind of information Esteves had received through reliable channels, and as the basis of Esteves's expert opinion that defendant possessed the contraband for the purposes of sale.
Once Agent Esteves was notified about the bench warrant, he put together a briefing plan and surveillance team to watch defendant's residence. Esteves had information that defendant was living at a residence on Jaden Court. Esteves assigned Agent Torres to watch that residence in an unmarked car.
Agent Esteves testified the surveillance of the residence began at 11:10 a.m. on April 13, 2009. About two hours later, Agent Torres advised Esteves that defendant walked from the house to a tan Ford Explorer SUV that was parked at the house, defendant put items in the Ford's rear hatch, he went back to the house, and then he put more items in the vehicle.
Agent Esteves testified that he decided not to arrest defendant when they initially saw him outside the residence because of the possibility he could run "back into the house or that type of situation."
After a few minutes of surveillance, Agent Torres advised Esteves that defendant was driving away from the residence in the Ford. Esteves, who was in a marked patrol car, caught up with defendant's Ford, activated the patrol car's lights and siren, and conducted a traffic stop. Defendant pulled over.
Esteves approached the Ford and asked defendant for identification, and defendant complied. Esteves asked defendant to get out of the vehicle, and defendant again complied. Esteves advised defendant that he was under arrest for failing to appear. Defendant said he didn't think he had to be in court until the next day. Esteves replied that the judge had issued a warrant that morning. Esteves arrested defendant and placed him in handcuffs.
Esteves testified he then searched defendant's body incident to the arrest, and found 34 unused Ziploc-style bags in his pants pocket. Esteves testified that such bags were consistent with being used for the packaging of narcotics. Esteves explained that while the baggies were common items, they were also "the most common way narcotics are packaged at the street level."
Esteves also found $92 in defendant's pocket. Esteves explained the bills were not folded or wrapped together in one bundle. Instead, the larger bills were folded independently of each other, and each bill was "folded up real tight separately." Esteves testified the manner in which the bills were independently folded was consistent with short-term drug sales. Based on his past experience, Esteves had commonly found money folded in that way in the possession of someone who was selling drugs. "Commonly a user will have a bill folded up small, hand it to the dealer and the transaction will occur. Therefore, when I find money that's independent of itself all folded up that raises my suspicion."
Esteves testified that based on his discovery of the cash and empty baggies in defendant's pockets, along with Agent Torres's observation that defendant had been loading items into the vehicle, and his information from Officer Chiaramonte and other agents about defendant's background and past narcotics activities, "I suspected narcotics would probably be somewhere in the vehicle."
Esteves testified that after he found the cash and baggies on defendant's person, he conducted a search of the vehicle. Esteves testified that one of the reasons he searched the vehicle was that it was incident to defendant's arrest.
Esteves found a clear plastic bag with 3.5 grams of methamphetamine in the Ford's glove box. There was a cell phone in the center console that appeared to fit an empty case on defendant's belt. The cell phone kept ringing during the traffic stop. Defendant later said it was his cell phone.
Esteves searched the vehicle's cargo compartment and found ammunition, a loaded nine-millimeter handgun, and an unloaded .32-caliber revolver. The firearms were operable and separately wrapped in knit caps.
Esteves testified he decided not to have the vehicle towed and impounded. Instead, he decided to obtain a search warrant for the residence. Esteves testified that if he had not found the baggies and cash in defendant's pocket and searched the vehicle, he would have impounded the vehicle and conducted an inventory search of the entire vehicle. Esteves testified that defendant's residence was subsequently searched and no contraband was found. Defendant's suppression motion
On April 15, 2009, a complaint was filed in case No. MCR034947 charging defendant with multiple felony offenses based on the contraband found in his vehicle on April 13, 2009. Defendant was held in custody after his arrest.
On June 24, 2009, defendant filed a motion to suppress the evidence seized during the April 13, 2009, search of his vehicle and argued Agent Esteves lacked probable cause to conduct the warrantless search. Defendant further argued the warrantless search of the vehicle was not valid as a search incident to arrest based on Arizona v. Gant (2009) _____ U.S. _____ (Gant), because defendant was already in custody when the officer searched the vehicle.
In opposition, the prosecution requested that the court take judicial notice of the files in defendant's two pending cases and argued that he was arrested on a lawful bench warrant for failing to appear, defendant's person was validly searched incident to his arrest, and the officer found empty plastic baggies and cash. The prosecution argued that the officer had probable cause to conduct the warrantless search of defendant's vehicle based on the discovery of the baggies, together with the officer's independent knowledge that defendant had recently been arrested for narcotics sales and large amounts of narcotics had been found in his vehicle during the prior investigation which led to his arrest on March 18, 2008. The evidentiary hearing
On July 13, 2009, the court conducted the preliminary hearing in case No. MCR034947, concurrently with the evidentiary hearing on defendant's motion to suppress the contraband found during the search of his vehicle on April 13, 2009. Agent Esteves was the only witness and testified about the events of that day as set forth ante.
At the conclusion of the evidence, defense counsel argued that Esteves's discovery of the cash and plastic bags in defendant's pocket failed to create probable cause for a warrantless search of the vehicle. Defense counsel asserted that Esteves's information about defendant's past activities was also insufficient to create probable cause because "the fact that you arrest somebody for something doesn't then just create probable cause to go ahead and search them in the future for any indefinite period of time." Defense counsel further argued Esteves's search of the vehicle was not valid as incident to defendant's arrest, based on the limitations set forth in Gant, since defendant had been removed from the vehicle and placed in handcuffs.
The prosecutor replied that Esteves properly conducted the traffic stop and detained defendant based on the lawful bench warrant. The prosecutor further argued that Esteves had probable cause to conduct the warrantless search of defendant's vehicle pursuant to the automobile exception, based on his training and experience and the following facts: Esteves's personal knowledge and information from other officers about defendant's narcotics activities, defendant had been arrested in the past for using his car to transport and sell drugs, defendant had been seen loading items into his car that morning, defendant failed to appear for his scheduled sentencing hearing when he was going to receive 11 years in prison, and Esteves discovered the distinctively-folded cash and empty baggies in defendant's pockets. The court's ruling
Invalid bases for warrantless search
The court held the prosecution could not rely on the theory of an inventory search and inevitable discovery since Agent Esteves failed to explain whether the vehicle was a hazard on the roadway, and there was no evidence to show cause to tow the vehicle.
An officer may exercise his or her discretion to impound a vehicle and conduct a warrantless inventory search if the impoundment is reasonable and not pretextual, and the vehicle search is conducted pursuant to established departmental protocols. (South Dakota v. Opperman (1976) 428 U.S. 364, 373; Florida v. Wells (1990) 495 U.S. 1, 4-5, People v. Torres (2010) 188 Cal.App.4th 775, 786-790.) The inevitable discovery doctrine, an exception to the exclusionary rule, applies when tainted evidence would have been discovery by the police through lawful means. (People v. Superior Court (Walker)(2006) 143 Cal.App.4th 1183, 1214-1215.)
The court cited to Gant and held that the vehicle was not validly searched incident to defendant's arrest since defendant had been removed from the vehicle and placed in handcuffs. The court further held that defendant's arrest for failing to appear was insufficient to support a warrantless search of the vehicle.
Valid basis for warrantless search
However, the court held that Agent Esteves validly searched the vehicle without a warrant because he "believed that there were narcotics in the vehicle and then [he laid] out all these other factors of why he believed they would be there ... ." The court also held defendant to answer. The information in case No. MCR034947 Defendant subsequently filed another suppression motion and argued the bench warrant for his arrest was not lawfully issued until the day after Agent Esteves arrested defendant and searched his car. The court heard and denied the renewed motion, and found there was a lawful arrest warrant for defendant on the day of his arrest and the search of the vehicle. Defendant has not challenged the validity of the warrant on appeal.
On March 22, 2010, a second amended information was filed in case No. MCR034947, charging defendant with committing the following offenses on or about April 13, 2009: count I, transportation of methamphetamine (§ 11379, subd. (a)); count II, possession of methamphetamine for sale (§ 11378); count III, possession of methamphetamine while armed with a loaded, operable firearm (§ 11370.1, subd. (a)); count IV, carrying a concealed firearm in a vehicle having been convicted of a narcotics-related offense (Pen. Code, § 12025, subd. (a)(1)); count V, felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)); count VI, felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1)); and count VII, felon carrying a loaded firearm in a public place (Pen. Code, § 12031, subd. (a)(2)(A)).
As to counts I and II, it was further alleged defendant was personally armed with a firearm (Pen. Code, § 12022, subd. (c)), and that he had six prior narcotics-related convictions (§ 11370.2, subd. (c)). As to all counts, it was alleged defendant was on bail when he committed the charged offenses (Pen. Code, § 12022.1) and he served three prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant's pleas and sentence
On April 30, 2010, defendant entered into a negotiated disposition in case No. MCR034947, and pleaded guilty to count I, transportation of methamphetamine, and count V, felon in possession of a firearm, and admitted one prior narcotics-related conviction and two prior prison terms.
On the same date, the court sentenced defendant to an aggregate term of 17 years 8 months in consolidated case Nos. MCR028020 and MCR031239, and case No. MCR034947.
On May 4, 2010, defendant filed a timely notice of appeal as to the consolidated case Nos. MCR028020/MCR031239, and case No. MCR034947, as to the denial of his motion to suppress in the latter case.
DISCUSSION
I. Validity of the vehicle search incident to defendant's arrest
We begin with the validity of Agent Esteves's search of the entirety of defendant's Ford Explorer after he arrested defendant on the outstanding warrant. Defendant argues the search was invalid based on Gant, supra, 129 S.Ct. 1710, because Agent Esteves exceeded the scope of a lawful search incident to arrest since defendant had been removed from the vehicle prior to the search.
"In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. [Citation.] The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]" (People v. Hoyos (2007) 41 Cal.4th 872, 891.) We exercise our independent judgment in determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment. (Ibid.)"Our review is confined to the correctness or incorrectness of the trial court's ruling, not the reasons for its ruling. [Citations.]" (People v. Dimitrov (1995) 33 Cal.App.4th 18, 27.)
"Under California law, issues relating to the suppression of evidence derived from police searches and seizures must be reviewed under federal constitutional standards. [Citations.]" (People v. Robles (2000) 23 Cal.4th 789, 794.) Where law enforcement officers conduct a warrantless search, the People have the burden of proving by a preponderance of the evidence that the officers' actions were justified by an exception to the warrant requirement. (People v. Camacho (2000) 23 Cal.4th 824, 830; People v. Jordan (1990) 217 Cal.App.3d 640, 645.)
We will review the exception to the warrant requirement for searches incident to lawful custodial arrests, the scope of such searches in vehicles as previously provided for in New York v. Belton (1981) 453 U.S. 454 (Belton), and the United States Supreme Court's clarification about the limitation of such searches in Gant.
A. Chimel and Belton
"The Fourth Amendment protects an individual's reasonable expectation of privacy against unreasonable intrusion on the part of the government." (People v. Jenkins (2000) 22 Cal.4th 900, 971.) "A search conducted without a warrant is unreasonable per se under the Fourth Amendment unless it falls within one of the 'specifically established and well-delineated exceptions.' [Citations.]" (People v. Woods (1999) 21 Cal.4th 668, 674.) One such exception is a search incident to a lawful arrest. (Gant, supra, 129 S.Ct. at p. 1716; People v. Leal (2009) 178 Cal.App.4th 1051, 10591060.) "The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations. [Citations.]" (Gant, supra, 129 S.Ct. at p. 1716.)
In Chimel v. California (1969) 395 U.S. 752, the court explained the "proper extent" of a search incident to arrest. (Id. at p. 762.) First, to effect the arrest in a safe manner, "it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape." (Id. at p. 763.) Second, the police may conduct a "search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction." (Ibid.)"[T]he area into which an arrestee might reach in order to grab a weapon or evidentiary items," i.e., the "area 'within his immediately control,' " is "governed by a like rule." (Ibid.)
In Belton, supra, 453 U.S. 454, the court applied Chimel to the warrantless search of an automobile incident to an arrest. An officer stopped a car for speeding, asked the driver for his license and registration, and discovered none of the four occupants owned the car or was related to the owner. The officer smelled burnt marijuana and saw an envelope on the floor marked " 'Supergold,' " a term associated with marijuana. The officer had probable cause to believe the four occupants had committed a drug offense. He ordered them out of the car, placed them under arrest, and conducted patdown searches. The officer separated the four occupants so they were not within physical range of each other, and then he searched the interior of the vehicle, including the pockets of a jacket found on the backseat. There was cocaine in the jacket's pocket. (Id. at pp. 455456.) A lower court held the warrantless search of the jacket was invalid because it was conducted after the occupants were arrested and the vehicle was under the officer's control. (Id. at pp. 456-457.)
Belton held the car and the jacket were properly searched incident to the arrest of the vehicle's occupants within the meaning of Chimel. (Belton, supra, 453 U.S. at pp. 462-463.) In reaching this holding, Belton sought to craft "a straightforward rule" to address the "proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants." (Id. at p. 459.) "[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.'" (Belton, supra, 453 U.S. at pp. 460, fn. omitted, italics added.)
Belton further held that police could examine "the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. [Citations.]" (Belton, supra, 453 U.S. at p. 460, fn. omitted.) Belton cautioned that its holding only addressed the interior and any containers in the passenger compartment, and did not encompass the trunk. (Id. at p. 460-461, fn. 4.) Belton further cautioned that it was simply determining "the meaning of Chimel's principles in this particular and problematic context," and it was not altering "the fundamental principles established in the Chimel case" regarding the basic scope of searches incident to lawful custodial arrests. (Belton, supra, 453 U.S. at p. 460, fn. 3.)
In California and other jurisdictions, Belton was widely understood to permit officers to conduct warrantless searches of the interior of an automobile after the arrest of a recent occupant, even if the arrestee had been removed from the vehicle and there was no possibility that he or she could gain access to the vehicle at the time of the search. (See, e.g., Gant, supra, 129 S.Ct. at pp. 1718, 1722-1723; People v. Hunt (1990) 225 Cal.App.3d 498, 507-509, overruled on other grounds in People v. Brendlin (2006) 38 Cal.4th 1107, 1115; People v. Stoffle (1991) 1 Cal.App.4th 1671, 1680-1682; People v. Mitchell (1995) 36 Cal.App.4th 672, 674; People v. Rodriguez (2006) 143 Cal.App.4th 1137, 1151; People v. Baker (2008) 164 Cal.App.4th 1152, 1157-1158.)
In addition, the federal courts "uniformly construed Belton's 'bright line' rule to authorize contemporaneous searches of vehicles where the occupant(s) of the vehicles were immobilized and separated from the searched vehicles, usually by being put in the back of a patrol car. [Citations.] Appellate courts in many other states have reached the same conclusion. [Citations.]" (People v. Hunt, supra, 225 Cal.App.3d 498, 508, italics in original; see also U.S. v. McLaughlin (9th Cir. 1999) 170 F.3d 889, 891-892 [Belton is "a bright-line rule that may be invoked regardless of whether the arresting officer has an actual concern for safety or evidence" and "does not depend upon a defendant's ability to grab items in a car but rather upon whether the search is roughly contemporaneous with the arrest"]; U.S. v. Humphrey (10th Cir. 2000) 208 F.3d 1190, 1196, 1201-1202; U.S. v. Buford (6th Cir. 2011) 632 F.3d 264, 268-269 [see cases cited within].)
B. Gant
In Gant, the United States Supreme Court revisited Belton in light of a "chorus" of courts and legal scholars who had "questioned that decision's clarity and its fidelity to Fourth Amendment principles" as to the scope of a vehicle search incident to an arrest. (Gant, supra, 129 S.Ct. at p. 1716.) In Gant, the defendant and a particular residence were under surveillance during a narcotics investigation. The officers determined the defendant was driving with a suspended license. During the surveillance, the defendant drove up to the residence, got out of his car, and started to walk away. An officer immediately arrested the defendant for driving with a suspended license. The defendant was handcuffed and placed in a locked patrol car. The officers then searched the interior of the defendant's vehicle incident to his arrest for driving with a suspended license. They found a gun in the car and cocaine in the pocket of a jacket in the back seat. (Gant, supra, 129 S.Ct. at p. 1715.) The defendant's motion to suppress was denied based on the lower court's application of Belton's apparent " 'bright-line rule' " that permitted officers to search the interior of a vehicle after the arrestee had been detained. (Gant, supra, at p. 1716.)
Gant acknowledged that Belton had been "widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search," even in situations where a handcuffed arrestee " 'has already left the scene.' [Citation.]" (Gant, supra, 129 S.Ct. at pp. 1718, 1719.) Gant explained the "broad reading" of Belton had "untether[ed] the rule from the justifications underlying the Chimel exception—a result clearly incompatible with our statement in Belton that it 'in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.' [Citation.]" (Gant, supra, 129 S.Ct. at p. 1719.)
Gant concluded that Belton "did not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle." (Gant, supra, 129 S.Ct. at p. 1714.)
"Accordingly, we reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." (Gant, supra, 129 S.Ct. at p. 1719, fn. omitted, italics added.)
Gant explained that Chimel "held that a search incident to arrest may only include 'the arrestee's person and the area "within his immediate control"-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.' [Citation.] That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. [Citations.] If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply. [Citation.]" (Gant, supra, 129 S.Ct. at p. 1716, italics added.)
Gant acknowledged that the broad interpretation of Belton had been "widely taught in police academies and that law enforcement officers have relied on the [Belton]rule in conducting vehicle searches during the past 28 years," but explained that many of those searches "were not justified by the reasons underlying the Chimel exception." (Gant, supra, 129 S.Ct. at p. 1722.) Gant rejected the argument that a "broad reading" of Belton was necessary to protect law enforcement safety and evidentiary interests. (Id. at p. 1721.) "Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis. For these reasons, we are unpersuaded by the State's arguments that a broad reading of Belton would meaningfully further law enforcement interests and justify a substantial intrusion on individuals' privacy." (Gant, supra, 129 S.Ct. at p. 1721, fn. omitted.)
As a separate exception for warrantless searches of automobiles, Gant further held that, "[a]lthough it does not follow from Chimel," circumstances "unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle." (Gant, supra, 129 S.Ct. at pp. 1719, 1714.)
As applied to the facts of that case, Gant held the search of the vehicle's interior and the jacket were unconstitutional as either a search incident to arrest or based on the nature of the arrest:
"Neither the possibility of access nor the likelihood of discovering offense-related evidence authorized the search in this case. [T]he five officers in this case outnumbered the three arrestees, all of whom had been handcuffed and secured in separate patrol cars before the officers searched [defendant's] car. Under those circumstances, [defendant] clearly was not within reaching distance of his car at the time of the search. An evidentiary basis for the search was also lacking in this case. .. .[Defendant] was arrested for driving with a suspended license--an offense for which police could not expect to find evidence in the passenger compartment of [defendant's] car. [Citation.] Because police could not reasonably have believed either that [defendant] could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case was unreasonable." (Gant, supra, 129 S.Ct. at p. 1719.)
Since Gant was decided, both state and federal courts have recognized that the United States Supreme Court has limited the scope of a vehicle search incident to an arrest that was previously based on Belton. (See, e.g., Montejo v. Louisiana (2009) _____ U.S. __ [129 S.Ct. 2079, 2092] (conc. opn. of Alito, J.); People v. Diaz (2011) 51 Cal.4th 84, 96, fn. 9; People v. Leal, supra, 178 Cal.App.4th at p. 1060; People v. Osborne (2009) 175 Cal.App.4th 1052, 1063-1065; U.S. v. Gonzalez (9th Cir. 2009) 578 F.3d 1130, 1131-1132.)
Gant is retroactive to searches which occurred prior to the court's ruling, and in cases that were pending on direct review and not yet final when Gant was decided. (Davis v. U.S. (June 16, 2011) __ U.S._[131 S.Ct. 2419, 2431] (Davis).)
C. The vehicle search was invalid under Gant
Defendant contends the search of his vehicle was unconstitutional as a search incident to arrest under Gant. Defendant is correct. On April 13, 2009, Agent Esteves conducted the traffic stop, arrested defendant on the bench warrant for failing to appear, and placed defendant in handcuffs. Esteves searched defendant's body incident to his arrest and found the empty baggies and the cash. Esteves then searched defendant's vehicle and found methamphetamine and the firearms. Esteves testified that one of the reasons he searched the vehicle was incident to defendant's arrest.
At the time of the traffic stop and warrantless vehicle search, Belton was the controlling authority as to the scope of a vehicle search incident to an arrest, and Esteves searched defendant's Ford incident to his arrest in accordance with Belton's "straightforward rule." (Belton, supra, 453 U.S. at p. 459.)
On April 21, 2009, however, the United States Supreme Court decided Gant, and held that Belton did not authorize "a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle." (Gant, supra, 129 S.Ct. at p. 1714.)
In the instant case, the superior court properly relied on Gant and held the vehicle was not validly search incident to defendant's arrest since defendant had been removed from the vehicle and placed in handcuffs. Gant is retroactive to cases that were not yet final on direct review. (Davis, supra, 131 S.Ct. 2431.) Defendant's case clearly fits into that category. Gant was decided just days after the search and defendant's arrest in this case, and the criminal charges against defendant were pending and not yet final. We thus conclude that, based on Gant, Agent Esteves improperly searched the interior of defendant's Ford Explorer incident to his arrest on the bench warrant.
II. Application of the good faith exception to pre-Gant searches
While Agent Esteves's warrantless search of defendant's vehicle was not valid as a search incident to an arrest, that conclusion does not end the analysis in this case. We must still determine whether the exclusionary rule applies to suppress contraband seized during a search incident to arrest, which was conducted in accordance with then-existing legal precedent.
A. Davis
After Gant was decided, several California appellate courts declined to apply the exclusionary rule in situations nearly identical to this case, where officers conducted vehicle searches incident to arrest in accordance with the then-existing standards in Belton, the searches occurred prior to the decision in Gant, and Gant was decided while the criminal proceedings were pending. These courts concluded that Gant was retroactive, but they applied the good faith exception to the exclusionary rule set forth in United States v. Leon (1984) 468 U.S. 897 (Leon), and found the exclusionary rule should not be applied where officers conducted vehicle searches based on the widely understood authority of Belton.
In addition, there was a split of authority among federal circuits as to whether Leon's good faith exception to the exclusionary rule applied to pre-Gant searches conducted in accordance with Belton, and the issue was pending on review before the United States Supreme Court and the California Supreme Court.
The United States Supreme Court has now resolved this issue in Davis, supra, 564 U.S. _____ . In Davis, officers conducted a routine traffic stop in 2007, two years before Gant was decided. They arrested the driver for being under the influence and the defendant/passenger for giving a false name. The officers removed them from the vehicle, placed them in handcuffs, and seated them in separate patrol cars. The officers then searched the passenger compartment of the vehicle and found a revolver inside the defendant's jacket. (Davis, supra, at p. 2425.) The defendant moved to suppress the evidence but acknowledged the search was valid under Belton. (Davis, supra, at p. 2426.) The trial court denied the defendant's suppression motion, and the defendant was convicted. Gant was decided while the defendant's direct appeal was pending. The Eleventh Circuit held the search of the car incident to arrest was invalid under Gant. However, the Eleventh Circuit declined to apply the exclusionary rule and held the contraband was not subject to suppression, concluding that penalizing the arresting officer "for following binding appellate precedent would do nothing to 'dete[r] ... Fourth Amendment violations.' [Citation.]" (Davis, supra, at p. 2426.)
Davis held that Gant was retroactive to cases pending on direct appeal at the time it was decided. (Davis, supra, 131 S.Ct. at p. 2431.) However, Davis further held the evidence seized from the car during the search incident to arrest was not subject to the exclusionary rule because the officers conducted the search in "objectively reasonable reliance on [the] binding appellate precedent" of Belton, and because "suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety ...." (Davis, supra, at p. 2423.)
Davis reviewed the derivation of the Belton rule, and acknowledged that "[f]or years, Belton was widely understood to have set down a simple, bright-line rule. Numerous courts read the decision to authorize automobile searches incident to arrests of recent occupants, regardless of whether the arrestee in any particular case was within reaching distance of the vehicle at the time of the search. [Citation.] Even after the arrestee had stepped out of the vehicle and had been subdued by police, the prevailing understanding was that Belton still authorized a substantially contemporaneous search of the automobile's passenger compartment." (Davis, supra, 131 S.Ct. at p. 2424, fn. omitted.) Davis noted that the officers' search of the vehicle followed then-existing precedent "to the letter," and their conduct "was in strict compliance" with then-binding case law "and was not culpable in any way." (Id. at p. 2428.)
Davis concluded that "[t]he harsh sanction of exclusion 'should not be applied to deter objectively reasonable law enforcement activity.' [Citation.] Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule." (Davis, supra, 131 S.Ct. at p. 2429.) Davis further held that while Gant was retroactive, "[i]t does not follow . that reliance on binding precedent is irrelevant in applying the good-faith exception to the exclusionary rule." (Davis, supra, at p. 2432.) "We therefore hold that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply." (Id. at p. 2434.)
B. Analysis
When Agent Esteves searched defendant's truck incident to his arrest on the outstanding warrant, Esteves acted in accordance with well-settled law in California, and pursuant to the interpretation of Belton by other state and federal courts. (Davis, supra, 131 S.Ct. at p. 2424.) As the United States Supreme Court has now explained in Davis, the contraband seized from defendant's vehicle during the search incident to arrest is not subject to the exclusionary rule because the search was conducted in accordance with what the court acknowledged was the "widely understood" and "simple, bright-line rule" of Belton. (Davis, supra, at p. 2424.) Agent Esteves could not have been expected to question the judgment of then-existing United States Supreme Court precedent. In this case, as in Davis, "[e]xcluding evidence in such cases deters no police misconduct and imposes substantial social costs." (Id. at p. 2434.)
Agent Esteves searched the vehicle incident to defendant's arrest "in objectively reasonable reliance on binding judicial precedent" at the time of the search, and the exclusionary rule does not apply in this case. (Davis, supra, 131 S.Ct. at p. 2428.) "It is one thing for the criminal 'to go free because the constable has blundered.' [Citation.] It is quite another to set the criminal free because the constable has scrupulously adhered to governing law." (Id. at p. 2434.)
The trial court in this case felt compelled to find that the vehicle search was invalid under Gant. However, the court still denied defendant's suppression motion based on the alternate theory that the vehicle search was independently supported by probable cause. " ' "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." [Citation.]' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 976.)
We thus conclude the trial court properly denied defendant's motion to suppress the contraband seized from his vehicle after he was arrested. In doing so, we base our conclusion on the different reason that the exclusionary rule does not apply to suppress evidence seized during a vehicle search conducted in accordance in Belton, and prior to the decision in Gant. Given the United States Supreme Court's clear holding in Davis, we need not address the other reasons relied on by the trial court to deny defendant's motion to suppress.
III. Conduct credits
Defendant's next issue concerns the amendment to Penal Code section 4019 as to the alternate calculation of conduct credit. The previous version of Penal Code section 4019 provided that conduct credits could be accrued at the rate of two days for every four days of actual presentence custody. (Former Pen. Code, § 4019.) The Legislature, however, amended Penal Code section 4019, effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7, subdivision (c) or a violent felony as defined in section 667.5, subdivision (c), may accrue additional conduct credits. (See Pen. Code, § 4019, subds. (b)(1) & (c)(1).) From the probation report, it does not appear that defendant has been convicted of a serious or violent felony.
When defendant was sentenced on April 30, 2010, the court divided the calculation of conduct credit based on the time he spent in custody before and after January 25, 2010. For the custodial period from April 13, 2009, to January 24, 2010, the court calculated credits based on the previous version of Penal Code section 4019. The court then relied on the amended version of Penal Code section 4019 to calculate defendant's credits for the period he was in custody after January 25, 2010.
Defendant contends the court should have calculated his conduct credit pursuant to the amended version of Penal Code section 4019 as to the entirety of his custodial period, without regard to when the amendment went into effect.
We find that the amendment to Penal Code section 4019 applies prospectively only. Under Penal Code section 3, it is presumed that a statute operates prospectively " 'absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application]. [Citation.]' [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by " ' "clear and compelling implication" ' " from any other factor(s), that it intended the amendment operate retroactively. (Id. at p. 754.) Therefore, the amendment applies prospectively only.
We decide this case according to our opinion in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, which is currently before the California Supreme Court, along with its companion case, People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.
We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the amendment to Penal Code section 4019.
We also conclude that prospective-only application of the amendment does not violate defendant's equal protection rights. One of Penal Code section 4019's principal purposes, both as formerly written and as amended, is to motivate good conduct. Defendant and those like him who were sentenced prior to the effective date of the amendment cannot be further enticed to behave themselves during their presentence custody. The fact that a defendant's conduct cannot be influenced retroactively provides a rational basis for the Legislature's implicit intent that the amendment only apply prospectively.
Since the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)
IV. Imposition of presentence report fees
Defendant's final issue concerns the court's decision to impose fees for the preparation of presentence reports pursuant to Penal Code section 1201.3b. Defendant argues the court failed to follow the statutory procedures to impose such fees, because it failed determine his ability to pay or advise him that he had a right to a hearing on the matter.
A. Background
On April 30, 2010, the court conducted the sentencing hearing as to defendant's pleas in (1) consolidated case Nos. MCR028020 and MCR031239, and (2) case No. MCR034947. There were two separate presentence/probation reports prepared, each of which recommended the imposition of various fees and fines, including a $330 fee in each case for the preparation of the presentence/probation reports.
At the sentencing hearing, the court sentenced defendant to state prison and followed the recommendation of the probation reports, imposed various fees and fines, and imposed two separate $330 presentence report fees as to the two cases, for a total of $660. The court did not make any findings as to defendant's ability to pay, and defendant did not object to the imposition of any of the fees or fines.
B. Analysis
Penal Code section 1203.1b, subdivision (a) permits the sentencing court to order defendant to pay the reasonable costs of the preparation of any presentence probation report. "The probation officer, or his or her authorized representative, shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant's ability to pay. The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver." (Pen. Code, § 1203.1b, subd. (a).) If the defendant does not waive his right to a hearing, the probation officer is to refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payment shall be made. (Pen. Code, § 1203.1b, subd. (b).)
In People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis), the court held that defendant's failure to object to fees imposed pursuant to Penal Code section 1203.1b waived the error on appeal. Valtakis found that the antiwaiver language in the statute did not speak to appellate review and that counsel still needed to preserve claims for appellate review by lodging an appropriate objection. (Valtakis, supra, at p. 1075.) Valtakis further held that defendant's failure to object at the sentencing hearing to noncompliance with Penal Code section 1203.1b's statutory procedures constituted a waiver of the claim on appeal, consistent with the general waiver rules discussed in People v. Welch (1993) 5 Cal.4th 228 (Welch) and People v. Scott (1994) 9 Cal.4th 331:
"[T]o construe the language [in the statute] as abrogating Welch and Scott ... would work results horribly at odds with the overarching cost conservation policy of the section. 'Statutes should be construed to produce a reasonable result consistent with the legislative purpose. [Citation.] The object to be achieved and the evil to be prevented are prime considerations in determining legislative intent.' [Citation.] If needed to avoid absurd consequences, the intent of an enactment prevails over the letter and the letter will, if possible, be read so as to conform to the spirit of the act. [Citation.] Here the antiwaiver language that helps shield defendants against fees beyond their ability to pay subserves a greater purpose of conserving the public fisc [citations], a purpose that would be sacrificed if we adopted [defendant's] reading. Criminal defendants often lack the means to pay high recoupment fees, and so the amounts imposed are relatively modest in most of the cases we see. To allow a defendant and his counsel to stand silently by as the court imposes a $250 fee, as here, and then contest this for the first time on an appeal that drains the public fisc of many thousands of dollars in court and appointed counsel costs, would be hideously counterproductive. It would also be completely unnecessary, for the Legislature has provided mechanisms in section 1203.1b for adjusting fees and reevaluating ability to pay without an appeal anytime during the probationary period [citation] or the pendency of any judgment [citation]." (Valtakis, supra, 105 Cal.App.4th at pp. 1075-1076, italics in original.)
We agree with the reasoning of Valtakis that defendant's failure to object at sentencing to the imposition of fees pursuant to Penal Code section 1203.1b forfeits his claim on appeal. (See Welch, supra, 5 Cal.4th at p. 235.) Moreover, defendant was advised in the probation officer's report about the recommendation for the presentence report fees. Defendant failed to raise the issue of ability to pay during the sentencing hearing either before or after the trial court made its ruling. If defendant had raised the issue, the court could have made factual findings at the sentencing hearing concerning defendant's ability to pay. There was no reason why defendant could not have raised these same objections to the court's noncompliance with the presentence report fee procedures at the conclusion of sentencing, rather than standing by silently as the court imposed the fees, and then contesting this for the first time on appeal, a practice that the Valtakis court described as "hideously counterproductive" and "unnecessary." (Valtakis, supra, 105 Cal.App.4th at p. 1076.)
We note that in People v. Pacheco (2010) 187 Cal.App.4th 1392 (Pacheco), the Sixth District addressed defendant's claims that the trial court erroneously imposed various statutory fees, including a $64 per month probation supervision fee under Penal Code section 1203.1b, "without determining his ability to pay these fees, and that there [was] insufficient evidence to support any such determination." (Pacheco, supra, at p. 1397.) Pacheco allowed the defendant to raise these issues on appeal, despite his failure to first object to the absence of an ability to pay determination in the trial court. (Ibid.) Pacheco reasoned that since the defendant's claims were "based on the insufficiency of the evidence to support the order or judgment. [S]uch claims do not require assertion in the court below to be preserved on appeal. [Citations.]" (Ibid.)
We agree with the general proposition in Pacheco that sufficiency of the evidence claims are preserved for appeal even in the absence of an objection at the trial level. However, defendant has limited his appellate challenge in this case to the statutory procedures and has not raised a substantial evidence claim. Moreover, we find Pacheco distinguishable for several reasons. First, the fees imposed in Pacheco were not for the costs of the preparation of the presentence probation report; instead, the fees imposed were a criminal justice administration fee, a probation supervision fee, an attorney's fee, a court security fee, and a booking fee. (Pacheco, supra, 187 Cal.App.4th at pp. 13961397.) Second, the defendant in Pacheco was granted probation while the court here sentenced defendant to state prison. (Id. at p. 1396.) Third, some of the fees in Pacheco were impermissibly imposed as conditions of the defendant's probation, which made them independently erroneous regardless of whether substantial evidence supported the amounts. (Id. at pp. 1402-1404.)
We decline to follow Pacheco on the issue as to defendant's failure to object because we believe Pacheco is inconsistent with Valtakis and the authorities cited in that opinion.
DISPOSITION
The judgment is affirmed.
Poochigian, J. WE CONCUR: Levy, Acting P.J. Kane, J.