Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CRF06-167, CRF03-633
BLEASE, Acting P. J.
Following the denial of defendant Larry Neil Houk’s motion to suppress evidence (Pen. Code, § 1538.5), in which he sought to suppress evidence found in a warrantless search of a pickup he was driving, a jury convicted him of transportation of methamphetamine (Health & Saf. Code, § 11379) and possession of methamphetamine for sale (Health & Saf. Code, § 11378). Defendant pleaded guilty to an additional charge of failure to appear (§ 1320, subd. (b)). Defendant waived his right to a jury trial on allegations of two prior convictions and the service of six separate prison terms, all of which the court found true. The court sentenced defendant to state prison for 14 years 8 months and imposed various fines and fees, including a cumulative $60 court security fee pursuant to section 1465.8. The sentences on the remaining convictions were run concurrent.
Further undesignated statutory references are to the Penal Code.
Defendant was also found guilty of Health & Safety Code section 11379, subdivision (a) in Placer County Case No. 62-053924 and sentenced to one year consecutive.
On appeal, defendant contends he received ineffective assistance of counsel when, at the suppression hearing, counsel failed to argue there was no probable cause for his arrest or for the search of his truck. Defendant also claims imposition of the court security fees violated the prohibitions against an ex post facto law and retroactive application of the Penal Code. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
As part of a drug investigation of defendant, Agent Parker obtained the following search warrant: “YOU ARE THEREFORE COMMANDED TO SEARCH:
“1. 1632 Plumas Arboga Road, Yuba County, Ca. This location is further described as an approximately five-acre parcel with a large shop, several outbuildings, trailers, motor homes, and abandoned vehicles.
“2. 3306 Forbestown Road, Butte County, Ca. This location is further described as a parcel of land with a mobile home.
“Including buildings, trailers, the surrounding grounds and all containers therein and thereon which could contain any of the items sought which are found to be under the dominion and control of Larry Houk.
“FOR THE FOLLOWING PERSON(S):
“Houk, Larry Neil, . . . .
“FOR THE FOLLOWING VEHICLE(S):
“Any and all vehicles and trailers found to be under the dominion and control of Larry Houk . . . .
“FOR THE FOLLOWING PROPERTY: Methamphetamine in liquid or powder form. . . . Paraphernalia used in the use of, packaging of, and distribution of methamphetamine, including but not limited to, scales, . . ., plastic baggies, . . . . Articles of personal property tending to establish the identity of the persons in control and possession of . . . vehicles, . . . and containers where contraband and evidence may be found including but not limited to . . . canceled mail, . . . personalized I.D., driver’s license, . . . .
“AND TO SEIZE IT IF FOUND and bring it forthwith before me or this court at the courthouse of this court. This Search Warrant and incorporated affidavit was sworn to and subscribed before me on this 7th day of April, 2003, at 8:40 A.M.
“Wherefore, I find probable cause for the issuance of this Search Warrant and do issue it.” (Bold in original.)
Later that same day, Parker gave Agent Hatfield a description of the truck defendant was seen driving that day and asked Hatfield to locate the defendant. Hatfield, who was driving an unmarked vehicle, soon saw defendant driving the described truck and contacted the two local uniformed officers assisting in the investigation to effect a traffic stop of defendant. Following the stop, defendant was handcuffed and placed in a patrol car.
Additional officers arrived at the scene and, purportedly pursuant to the search warrant, searched the truck. In the passenger compartment, the officers found two baggies containing methamphetamine, and beneath the hood they found a duffel bag containing more methamphetamine as well as indicia of drug trafficking, defendant’s driver’s license, and a prescription bottle with defendant’s name on it.
Defendant moved to traverse the warrant on the grounds that the facts set forth in the supporting affidavit were stale, thereby rendering it invalid, and because the officers executing the warrant lacked a good faith belief in its validity.
The trial court agreed that several of the asserted facts were stale and struck them. However, the court concluded that the remaining facts supported probable cause for the warrant’s issuance and denied the motion.
DISCUSSION
I
Ineffective Assistance of Counsel
Defendant argues that his counsel at the suppression hearing provided ineffective assistance because he failed to make the following argument: Since defendant’s arrest and the search of the truck occurred at a location other than one of the locations specified in the search warrant, the People cannot rely on the warrant to justify either his arrest or the search of the truck. Instead, the officers were required to have independent probable cause to arrest him and to search the truck, i.e., probable cause to believe that defendant was committing a criminal offense at the time he was stopped. He concludes, since the officers had no such probable cause, his arrest and the search of the truck were unlawful, and his counsel was ineffective for having failed to make this argument.
In order to demonstrate ineffective assistance of counsel, a defendant must show both that counsel “failed to act in a manner to be expected of [a] reasonably competent attorney [] acting as [a] diligent advocate” and that in the absence of counsel’s failing that a result more favorable to him would have occurred. (People v. Pope (1979) 23 Cal.3d 412, 425.) Trial counsel is not required to “advance meritless arguments . . . merely to create a record impregnable to assault for claimed inadequacy of counsel.” (People v. Jones (1979) 96 Cal.App.3d 820, 827.)
Because we conclude there was probable cause to arrest defendant, we do not consider whether in fact defendant was arrested when he was handcuffed and placed in the patrol car prior to the officers searching his vehicle.
“Probable cause [to arrest] exists when the facts known to the arresting officer would persuade someone of ‘reasonable caution’ that the person to be arrested has committed a crime.” (People v. Celis (2004) 33 Cal.4th 667, 673.)
Defendant does not claim, nor could he reasonably do so, that the redacted affidavit does not contain probable cause for the search warrant’s issuance. Specifically, the facts set forth in the redacted affidavit established both probable cause to believe that defendant had recently been, and likely was presently, committing the criminal offenses of possession, manufacture, and sale of methamphetamine from the two locations specified in the warrant and that evidence of those offenses would be found at those locations and in any vehicle under defendant’s control.
Indeed, defendant impliedly concedes this to be the case. In his opening brief, defendant states: “Here, the People offered no evidence to show the officers reasonably believed [he] was engaged in criminal activity at the time of his arrest at Ninth and E streets in Marysville. While the People had obtained a search warrant for two particular parcels of land based on some reliable information from confidential informants that [defendant] might have been manufacturing methamphetamine there, no evidence connected the alleged operations at those premises to the location where [defendant] was arrested.”
The redacted affidavit provided: (1) Within the past month, confidential reliable informant number 3 (hereafter “CRI3”) told Nelson that he knew defendant and he knew defendant was involved in the manufacture and sale of methamphetamine; (2) In the month preceding issuance of the warrant, defendant told CRI3 he would sell methamphetamine “upon request;” (3) Within the 10 days prior to issuance of the warrant, CRI3 saw defendant with “a large quantity of methamphetamine” and he told Parker that defendant was willing to sell the methamphetamine; (4) Within the three weeks preceding issuance of the warrant, confidential informant number 4 (hereafter “CI4”) witnessed defendant “manufacture” methamphetamine; (5) CI4 also told Parker that although defendant was no longer living at the Plumas Road property, CI4 knew that defendant continued to manufacture methamphetamine on that property; (6) In the three weeks preceding issuance of the warrant, CI4 saw defendant with “no less than one pound of methamphetamine”; (7) NET-5 agents saw defendant on the Plumas Road property; and (8) NET-5 agents confirmed that defendant recently purchased the Forbestown Road property.
Setting forth these facts in the affidavit does not render them unusable in other circumstances. On the contrary, by obtaining a search warrant based on these facts, the officers established there was probable cause to arrest defendant. (See People v. Stout (1967) 66 Cal.2d 184, 192-193 [the standard for probable cause to arrest is the same as probable cause to search]; see also Greene v. Reeves (6th Cir. 1996) 80 F.3d 1101, 1106.)
B. Search of Defendant’s Vehicle was Lawful as a Search Incident to Arrest
Having concluded the officers had probable cause to arrest defendant, the contemporaneous search of the passenger compartment was lawful under New York v. Belton (1981) 453 U.S. 454 [69 L.Ed.2d 768]. After the officers found methamphetamine in the passenger compartment of defendant’s truck, the officers could lawfully search the rest of the truck. (See People v. Dey (2000) 84 Cal.App.4th 1318, 1322 [after finding illegal drugs in the passenger compartment, it is reasonable to believe more illegal drugs may be found elsewhere in the vehicle].)
The officers also could lawfully search any containers within the truck that may conceal more methamphetamine. (United States v. Ross (1982) 456 U.S. 798, 824 [72 L.Ed.2d 572, 593] [“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”]; People v. Chavers (1983) 33 Cal.3d 462, 466-467.) The officers’ continued search under the hood of the truck and into the black “duffel” bag was thus lawful.
C. Lawful Search Based on Probable Cause
There was also an independent basis for upholding the search of defendant’s vehicle. It is well settled that the warrantless search of an automobile based upon probable cause to believe that the vehicle contains evidence of a crime does not contravene the Fourth Amendment’s warrant requirement. (California v. Acevedo (1991) 500 U.S. 565, 569 [114 L.Ed.2d 619].)
Those facts contained within the affidavit in support of the search warrant that were not deemed “stale” by the trial court, gave the officers probable cause to believe defendant’s truck contained evidence of the manufacture and sale of methamphetamine. Accordingly, the warrantless search of defendant’s truck was lawful regardless of whether the search was incident to his arrest.
The failure of his trial counsel to advance this meritless Fourth Amendment argument did not constitute ineffective assistance of counsel; it was simply good lawyering.
Having considered the merits of defendant’s Fourth Amendment claim, we conclude that defendant did not suffer ineffective assistance of counsel.
II
Court Security Fee
Defendant also argues the imposition of court security fees on his convictions violates the prohibition against retroactive application of the law and the ex post facto provisions of the federal and state constitutions. Defendant is wrong on both counts.
A. Ex Post Facto
Defendant argues the court improperly ordered a court security fee of $40 for the two convictions in case number CRF06-663 under section 1465.8, subdivision (a)(1), which imposes a $20 security fee upon “every conviction for a criminal offense” to “ensure and maintain adequate funding for court security . . . .” The statute became effective on August 2, 2003 (Stats. 2003, ch. 159, § 25), and defendant’s offenses occurred on April 7, 2003. Thus, he argues the fee violates the constitutional prohibition on ex post facto laws because it made the punishment for his crimes more burdensome than it was at the time they were committed.
The court imposed total court security fees of $60 on three of the convictions, including $40 for the two convictions in case number CRF06-663.
Section 1465.8, subdivision (a)(1) states: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.”
After the parties filed their briefs, the California Supreme Court filed its decision in People v. Alford (2007) 42 Cal.4th 749, in which the court rejected the same claim raised by defendant herein. We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Both the United States and California Constitutions prohibit the passage of ex post facto laws (U.S. Const., art. 1, § 10; Cal. Const., art. 1, § 9) and the courts have interpreted the state clause in a manner that is consistent with the federal clause. (Alford, supra, 42 Cal.4th at p. 756.) The ex post facto clause prohibits “‘laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.”’” (People v. Grant (1999) 20 Cal.4th 150, 158; Collins v. Youngblood (1990) 497 U.S. 37, 41-42 [111 L.Ed.2d 30, 38].)
The high court in Collins defined an ex post facto law as “‘any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.’" (Collins v. Youngblood, supra, 497 U.S. at pp. 42-43 [111 L.Ed.2d at pp. 38-39].)
However, the court security fee is not penal in nature. Because it is only a surcharge enacted as part of an emergency budgetary measure for the nonpunitive purpose of funding court security, it does not violate the ex post facto clause. (Alford, supra, 42 Cal.4th at pp. 756-759.) The fee is assessed for the use of court facilities to make them safer; the same fee is imposed in civil, probate, and traffic cases; and the enactment of the fee depended on the adoption of specified trial court funding levels. (Id. at p. 759.) Moreover, the fee is small, it does not promote the traditional aims of punishment, and it has a rational relationship to a nonpunitive purpose. (Ibid.) Defendant’s claim therefore fails.
B. Retroactivity
Defendant also contends that imposition of the court security fee violates Penal Code section 3, which states: “No part of [the Penal Code] is retroactive, unless expressly so declared.”
This argument has also been rejected in People v. Alford, supra, 42 Cal.3d at pages 753-755. “Section 1465.8’s legislative history supports the conclusion the Legislature intended to impose the court security fee to all convictions after its operative date.” (Id. at p. 754.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS , J. NICHOLSON , J.