Opinion
C084091
03-29-2018
THE PEOPLE, Plaintiff and Respondent, v. RAMON RUIZ III, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CRF144540)
Following a jury trial, defendant Ramon Ruiz III was convicted of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and transportation of methamphetamine (§ 11379). The trial court sustained a strike (Pen. Code, § 667, subds. (c), (e)(1)), a prior prison term (Pen. Code, § 667.5, subd. (b)) and a prior drug conviction enhancement (§ 11370.2, subd. (c)) and sentenced defendant to serve a 12-year state prison term.
Undesignated statutory references are to the Health and Safety Code.
On appeal, defendant contends (1) his suppression motion should have been granted because the warrantless search of the bag in his car was not supported by probable cause, (2) the search was the product of an unreasonably prolonged detention, and (3) his prior drug conviction should be stricken in light of changes to section 11370.2. Defendant also asks us to review the sealed record regarding his Pitchess motion. We conclude the search of defendant's vehicle and the containers within was supported by probable cause and was not the result of an unreasonably prolonged detention. The prior drug conviction must be stricken because the Legislature's amendment to section 11370.2 applies retroactively to defendant's case. Finally, having reviewed the sealed records, we conclude there is no Pitchess error. We shall strike the section 11370.2 enhancement and affirm the judgment as modified.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
BACKGROUND
Since the only pertinent facts go to the motion to suppress, we limit our summary of the facts to the facts adduced at the preliminary hearing, which also served as a suppression hearing.
On September 10, 2014, at about 8:43 p.m., Yolo County Sheriff's Deputy Richard Stevens was in the Clarksburg area when he spotted a Kia Sorrento driving without license plates. Deputy Stevens stopped the car and contacted the driver, defendant. Tiffany Duran was in the back seat.
Deputy Stevens asked for identification and defendant gave him his driver's license. Defendant was smoking a cigar, and Deputy Stevens noticed the odor of burned marijuana emitting from the car, the occupants, or both. A records check on the patrol car computer revealed the Kia's registration expired in August, defendant's license was suspended, and he had three suspensions on his driving record. Deputy Stevens confirmed the information with a dispatch officer.
Defendant was asked to step out of his car. Deputy Stevens told defendant his car was going to be searched based on the smell of marijuana coming from it and his suspended license. Defendant replied, "okay." Asked if there was anything illegal in the car, defendant replied nothing other than an open container of alcohol in Duran's possession. Duran confirmed there was an open container by the rear passenger side door.
Both defendant and Duran were outside the car when Deputy Stevens conducted the search. He smelled marijuana and alcohol when he opened the door. A search of the passenger compartment located two orange pill bottles containing marijuana residue, along with several cigar packages. Based on his experience, Deputy Stevens knew marijuana users often opened a cigar, placed marijuana within, rolled it back up, and smoked it. This was commonly known as a "blunt."
Deputy Stevens then searched the hatchback area of the car, where he observed several suitcases. He searched the suitcases and found a shaving kit within one of them. Searching the shaving kit, Deputy Stevens found a piece of plastic containing 18.73 grams of methamphetamine, several plastic baggies, and an operational digital scale.
The pill bottles were left in the Kia and not booked into evidence because the amount of marijuana contained in them was so small it would be only an infraction violation. Defendant and Duran were arrested. Duran gave a Miranda waiver, said the methamphetamine was hers, and described what was in the shaving kit. Deputy Stevens did not find any burned marijuana in the car.
Miranda v. Arizona (1966) 384 U.S. 436 . --------
The magistrate found Deputy Stevens had the right to search the entire vehicle when he smelled the odor of burned marijuana. The odor remained after defendant and Duran were removed from the car, so it was clear the odor had come from somewhere within the vehicle. It could not come from the pill containers, as the marijuana in them was not burned. It was therefore reasonable to believe that, after searching the passenger compartment, the odor came from the hatchback part of the car. Since marijuana can be secreted in a small container, it was also reasonable for Deputy Stevens to open the shaving kit. Finding the search authorized under the totality of circumstances, the magistrate denied the suppression motion.
Defendant subsequently renewed the suppression motion and filed a Penal Code section 995 motion arguing the only evidence against him was the product of an illegal search. The trial court denied the motion, finding the magistrate's ruling was correct. Defendant later renewed the suppression motion based on a recent United States Supreme Court precedent on unreasonably prolonged detentions, Rodriguez v. United States (2015) ___ U.S. ___ (Rodriguez). The trial court found Rodriguez did not support granting the motion.
DISCUSSION
I
Probable Cause to Search Car
Defendant contends the search of his car violated the Fourth Amendment because it was not supported by probable cause. We disagree.
"If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross [(1982)] 456 U.S. 798, 820-821 authorizes a search of any area of the vehicle in which the evidence might be found." (Arizona v. Gant (2009) 556 U.S. 332, 347 [173 L.Ed.2d 485, 498].) The automobile exception applies where a car is being used as a car because it was readily mobile and there is a reduced expectation of privacy. (People v. Hochstraser (2009) 178 Cal.App.4th 883, 903-904.) "Under the automobile exception to the warrant requirement," if the police have probable cause to suspect that " 'an automobile contains contraband or evidence' " of a crime (People v. Waxler (2014) 224 Cal.App.4th 712, 718 (Waxler)), they may search " ' " 'every part of the vehicle and its contents that may conceal the object of the search' " ' " (id. at p. 719). We apply the totality of the circumstances test to determine whether there was probable cause for the warrantless search. (Illinois v. Gates (1983) 462 U.S. 213, 230-231, 238 [76 L.Ed.2d 527, 543-544, 548].)
Deputy Stevens smelled burned marijuana from either defendant, Duran, or the car during the initial encounter. He smelled both marijuana and alcohol when he opened the car door. Defendant argues the smell of burned marijuana did not provide probable cause to search his car.
A distinctive odor can provide probable cause "to conduct a search or seizure under the automobile or exigent circumstances exception to the warrant requirement." (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1240 [and cases cited therein].) Under California law at the time defendant was stopped, "nonmedical marijuana--even in amounts within the statutory limit set forth in section 11357, subdivision (b)--[was] 'contraband' and [could] provide probable cause to search a vehicle under the automobile exception." (Waxler, supra, 224 Cal.App.4th at p. 715.) The odor of marijuana provided sufficient probable cause to search the Kia for the source of the odor. (People v. Strasburg (2007)148 Cal.App.4th 1052, 1059; People v. Dey (2000) 84 Cal.App.4th 1318, 1320-1322.)
Contrary to defendant's claim, it makes no difference whether the odor is of fresh or burned marijuana. (See Waxler, supra, 224 Cal.App.4th at pp. 712, 721 [existence of probable cause did not depend on fact that odor detected was that of burned marijuana-- "officer had probable cause to search the defendant's car when the officer smelled marijuana"]; United States v. Neumann (8th Cir. 1999) 183 F.3d 753, 756 [detection of smell of burned marijuana while conducting search for open container gave officer probable cause to search entire car for drugs].)
The smell of burned marijuana gave Deputy Stevens probable cause to believe contraband was in the car. His finding trace amounts of marijuana in the pill bottles did not justify ending the search, as the marijuana was not burned. The containers in the hatchback section were in plain view, and could have contained the source of the burned marijuana smell. Deputy Stevens was justified in opening them. The search was supported by probable cause, and therefore valid under the automobile exception to the warrant requirement.
II
Length of Detention and Search
Citing Rodriguez, supra, ___ U.S. ___ , defendant contends the search was illegal because it was the product of an unreasonably prolonged stop.
Police who observe a traffic violation may stop and detain a defendant to investigate that violation. (Rodriguez, supra, ___ U.S. at pp. ___ [191 L.Ed.2d at pp. 496, 498].) However, such a seizure may "become unlawful if it is prolonged beyond the time reasonably required to complete that mission." (Illinois v. Caballes (2005) 543 U.S. 405, 407 [160 L.Ed.2d 842, 846].) "[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'--to address the traffic violation that warranted the stop, [citation] and attend to related safety concerns, [citation]. [Citations.] Because addressing the infraction is the purpose of the stop, it may 'last no longer than is necessary to effectuate th[at] purpose.' [Citations.] Authority for the seizure thus ends when tasks tied to the traffic infraction are--or reasonably should have been--completed. [Citation.]" (Rodriguez, at p. ___ [191 L.Ed.2d at p. 498.) Such tasks include those related to ensuring vehicles on the road are operated safely and responsibly, including validating a license and registration, searching for outstanding warrants, and checking for proof of insurance. (Id. at p. ___ [191 L.Ed.2d at p. 499.)
Defendant claims that when the search of the passenger compartment was completed, the subsequent search of the suitcases violated the Fourth Amendment. He draws support for the argument from Deputy Stevens's decision to ignore the pill bottles containing trace amounts of marijuana and the cigar defendant was smoking. According to defendant those "actions essentially 'erased' the reasonable suspicion from the smell of burnt marijuana and meant the traffic stop should have ended." He concludes the decision to disregard the marijuana and cigar rendered the subsequent search of the bags unconstitutional.
The marijuana in the pill bottles was fresh, not burned, and therefore did not end the justification for a continued search of defendant's car. While marijuana can be burned in cigars, as the expert testified at the preliminary hearing, defendant did not tell Deputy Stevens this was the source of the burned marijuana smell, and there is no indication this was the source of the smell, let alone the only possible source of burned marijuana in the car. Having viewed the video of the encounter from the camera in Deputy Stevens's patrol car, we conclude the encounter with defendant was not unreasonably delayed or the search improperly prolonged. The trial court correctly denied the motion to reconsider its ruling on the suppression motion.
III
Enhancement for Prior Drug Conviction
In a supplemental brief, defendant contends recent changes to section 11370.2 apply to him and his enhancement under this provision should be stricken. The Attorney General concedes the point. We accept the concession.
Senate Bill No. 180 (Stats. 2017, ch. 677, § 1), which became effective on January 1, 2018, amends section 11370.2 to limit the scope of the enhancement to apply only to prior felony convictions for a violation of section 11380. Defendant's section 11370.2 enhancement was based on a prior conviction for violating section 11378.
Absent evidence to the contrary, it is presumed the Legislature intended an amended statute reducing the punishment for a criminal offense to apply retroactively to defendants whose judgments are not yet final on the statute's operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.) Because there is no indication the recent amendments to section 11370.2 were intended to operate prospectively only, defendant's enhancement under the statute must be stricken.
IV
Pitchess Motion
Prior to trial, defendant filed a motion pursuant to Pitchess, supra, 11 Cal.3d 531 seeking discovery pertaining to Deputy Stevens. The trial court held an in camera hearing to examine all records produced by the custodian of records, and concluded law enforcement officials should make one disclosure.
Defendant now asks this court to conduct an independent review of the sealed records of the hearing. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228, 1232.) The People do not oppose the request.
We will not disturb a trial court's ruling on a Pitchess motion absent an abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) Having reviewed the sealed records, we conclude the court did not abuse its discretion.
DISPOSITION
The judgment is modified to strike the Health and Safety Code section 11370.2 enhancement. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modified judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
MAURO, J.