Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD218074, Charles G. Rogers, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Patrick Donovan Terry appeals from a judgment of conviction for one count of transporting cocaine base. Terry contends that the trial court erred in denying his motion to suppress the physical evidence found in his car and his residence, in that the trial court failed to address whether the officers had reasonable suspicion to effectuate the traffic stop of his vehicle based on one officer's testimony that he saw that one of the brake lights on Terry's car was out. A defense investigator found both brake lights to be working approximately a month after Terry's car was impounded as a result of his arrest.
Terry further contends that there is not sufficient evidence to support the trial court's finding that he did not possess the cocaine base for personal use, for purposes of Proposition 36 probation. Finally, Terry contends that he is entitled to recalculation of his work and conduct credits as a result of the January 25, 2010 amendments to Penal Code section 4019.
Further statutory references are to the Penal Code unless otherwise indicated.
We conclude that the trial court properly denied Terry's motion to suppress the evidence found in his car and residence, and that there is substantial evidence to support the trial court's determination, for purposes of determining Terry's eligibility for Proposition 36 probation, that Terry did not transport the drugs for personal use. We agree with Terry, however, that the section 4019 amendments that took effect after he was sentenced should be applied retroactively to him, such that the trial court should recalculate his presentence conduct credits. We therefore affirm Terry's convictions and sentence, but reverse the judgment insofar as it does not award Terry presentence custody credits under the amended version of section 4019. We remand the case to the trial court with directions to recalculate Terry's custody credits consistent with the version of section 4019 in effect between January 25, 2010 and September 28, 2010.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
On January 5, 2009, San Diego Police Officer Jared Wilson and his partner John Denny were on patrol in the East Village area of downtown San Diego. The East Village is considered a high narcotics area.
At approximately 2:00 p.m., the officers were driving behind a 1991 Chrysler that Terry was driving. Officer Wilson noticed that the left brake light of Terry's car did not light up when he stopped at a red light. Officer Wilson suggested that they stop Terry. Officer Denny activated the patrol car's emergency lights. Just after Officer Denny activated the emergency lights, Terry threw two small pieces of a white substance out of the driver's side window. Terry then turned the corner and, approximately 30 feet from where he discarded the substance, stopped the car.
Officer Wilson asked Terry to get out of his car, and as he did, a sandwich bag dropped from Terry's left hand. The sandwich bag contained a white substance that appeared to be rock cocaine. The officers searched Terry's vehicle and found $148 in small bills under the passenger seat cover, and latex gloves in the glove compartment. Officer Denny recovered one of the items Terry had discarded in the street. The item appeared to be rock cocaine. At trial, the parties stipulated that the substances found in the sandwich bag and in the street were cocaine base, and that together, the drugs weighed 12.31 grams.
Later that afternoon, police officers searched Terry's home. In the bedroom closet, officers found $2,600, in $100 bills, inside an electric shaver case. Officers found an additional $429 in a bedside table, and found marijuana in another bedside table.
San Diego Police Department Officer Justin Wallace was called to testify as an expert on drug possession and sales. Officer Wallace was of the opinion that Terry possessed the drugs for sale, based on the quantity of drugs found and the large amount of cash Terry possessed, which was found in several different locations.
B. Procedural background
The People charged Terry with one count of possessing cocaine base for sale (Health & Saf. Code, § 11351.5; count 1) and transporting cocaine base (Health & Saf. Code, § 11352, subd. (a); count 2). The information also alleged that Terry had three prior drug convictions (Health & Saf. Code, § 11370.2, subd. (a)) and two prior prison convictions (§ 667.5, subd. (b)).
On August 28, 2009, a jury convicted Terry on count 2. The jury deadlocked on count 1, and the trial court declared a mistrial as to that count and dismissed it.
Terry admitted having suffered the three prior drug-related convictions and the two prior prison convictions.
On October 9, 2009, the trial court sentenced Terry to a total term of 10 years in prison, comprised of the middle term of four years on count 2, plus two consecutive three-year terms for two of the three prior drug-related convictions. The court struck both of Terry's prison priors.
Terry filed a timely notice of appeal on October 20, 2009.
III.
DISCUSSION
A. The trial court did not err in denying Terry's motion to suppress
Terry challenges the trial court's denial of his motion to suppress the evidence officers obtained during the search of his vehicle and his residence on the ground that the court erred in failing to make "a finding on the brake light issue." According to Terry, the court erroneously determined that Terry's actions in "driving part of a block before stopping for police... brought the case within the ambit of [California v.] Hodari D. [(1991) 499 U.S. 621 (Hodari D.)], " and as a result, the court failed to address the legitimacy of the officers' claim that they initiated the traffic stop because one of Terry's brake lights was out.
On appeal, Terry does not clarify exactly what evidence he contends should have been suppressed. However, in the trial court, Terry argued that all of the evidence that police acquired in the search of his residence and vehicle should have been suppressed.
1. Additional background
On the afternoon of January 5, 2009, while it was still light outside, Officers Wilson and Denny noticed Terry driving an older blue Chrysler, which was stopped at a stop sign at an intersection. After Terry moved through the intersection, the officers pulled in behind Terry and followed him as he traveled north on 14th Street. When Terry stopped his car at a traffic light, Officer Wilson noticed that Terry's left brake light was not working.
After the traffic light turned green, Officer Denny activated the overhead emergency light bar in an attempt to pull Terry over. Terry continued driving for approximately 40 yards, or approximately the length of a block.
Officer Wilson testified that in response to the activation of the lights, the Chrysler "continued driving like it didn't see us—or it didn't make any change for about 40 yards."
Just before the next intersection, the officers saw Terry's elbow emerge from the driver's side window, and watched as he discarded two white items that appeared to be the shape and size of pieces of rock cocaine. Terry then made a "quick right turn" onto the cross-street and pulled over by a red curb.
Officer Wilson jumped out of the patrol car on 14th Street and attempted to prevent other cars from driving over the items that Terry had discarded. Officer Denny continued to the intersection and turned right, in order to pull in behind Terry's vehicle.
After Terry was placed under arrest, the officers requested that a towing company retrieve Terry's car and take it to an impound yard. Terry's car was impounded by C&D Towing and was taken to C&D Towing's downtown location.
On February 9, 2009, an investigator with the public defender's office went to the impound yard to view Terry's car and test the brake lights. The vehicle's battery had been removed. A C&D Towing employee installed a battery in the car so that the investigator could test the brake lights. The investigator and the C&D Towing employee proceeded to test the brake lights. Both rear brake lights on the car were functioning.
2. Applicable law
"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.)
In evaluating the legality of a search or seizure, we are governed by federal constitutional law. (People v. Murphy (2005) 37 Cal.4th 490, 498.)
"A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, ' "by means of physical force or show of authority, " ' terminates or restrains his freedom of movement [citations], 'through means intentionally applied' [citation]." (Brendlin v. California (2007) 551 U.S. 249, 254 (Brendlin), italics omitted.) "The law is settled that in Fourth Amendment terms a traffic stop entails a seizure of the driver 'even though the purpose of the stop is limited and the resulting detention quite brief.' [Citation.]" (Id. at p. 255.)
"A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned. [Citations.]" (Brendlin, supra, 551 U.S. at p. 254, citing Hodari D., supra, 299 U.S. at p. 626, fn. 2.)
In Hodari D., two police officers walked toward a group of juveniles; when the juveniles saw the officers they began to run away. (Hodari D., supra, 499 U.S. at pp. 622-623.) One officer ran after Hodari, and, during the pursuit, the officer saw Hodari throw away what appeared to be a small rock. (Id. at p. 623.) Shortly thereafter, the officer tackled Hodari and arrested him. (Ibid.) The officer retrieved the rock, which was later determined to be crack cocaine. (Ibid.) The United States Supreme Court held that the officer's seizure of the crack cocaine was lawful, even though the officer did not have the reasonable suspicion required to stop Hodari before he started to run. (Id. at p. 624, fn.1.) The court explained that even if the pursuit qualified as a "show of authority, " Hodari was not seized at the time he dropped the crack cocaine because he had not submitted to the show of authority; rather, Hodari was seized only when he was tackled by the officer. (Id. at pp. 626-629.) Pursuant to Hodari D., for purposes of the Fourth Amendment, a "seizure" of the person occurs only when police use physical force to restrain a person or, in the absence of physical force, when a person physically submits to a show of authority by the police. (Id. at p. 629.) The cocaine, which Hodari had abandoned prior to the seizure, was therefore admissible, since the officer witnessed Hodari throw it before they seized him. (Ibid.)
3. Analysis
Terry complains that the trial court did not "address the hotly disputed issue of whether the police made up the brake light violation" because the court erroneously relied on Hodari D. to conclude that Terry had not been seized at the time he dropped the two items out of his window, and, therefore, that officers had reasonable suspicion to stop him after that point. Even assuming that the trial court did not make a finding with respect to whether the officers had reasonable suspicion to stop Terry's car based on one of the car's brake lights not functioning, we affirm the trial court's ruling on the motion to suppress because the trial court correctly determined that although the officers had turned on their patrol car's emergency lights before Terry discarded two small white rocks out the window of his car, they had not seized him because Terry had not yet submitted to their authority. Further, Terry's throwing the two suspicious items out of his window before pulling over created sufficient reasonable suspicion to believe that Terry had violated the law to justify the traffic stop.
It appears that the trial court did make a finding on this issue, however, stating, "So I cannot find as a matter of law or a matter of fact that [Officer Wilson] was incredible about what he said about the brake light." However, the court's finding that Terry's discarding the items just after the activation of the patrol car's emergency light provided an independent basis for the stop.
Terry argues that this case is distinguishable from Hodari D. in that the youths in that case fled at the sight of the officers (Hodari D., supra, 499 U.S. at p. 623) whereas Terry simply drove "for 40 yards before stopping." Terry contends that his conduct in continuing to drive another 40 yards does not constitute "flight in the sense that [it] is used in Hodari D. or other cases." According to Terry, "[i]t is not a reasonable application of the Fourth Amendment to find that appellant's 'flight'... in delaying part of a block in stopping, 40 yards after the overhead lights were activated, " "obviated any Fourth Amendment violation." We disagree. Under Hodari D., the relevant question for determining when a seizure has occurred is not whether there has been "flight, " but, rather, whether there has been "actual submission" to an officer's show of authority. (Brendlin, supra, 551 U.S.at p. 254 ["A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned"], citing Hodari D., supra, 499 U.S. at p. 626, fn. 2.)
In this case, there is substantial evidence to support the trial court's determination that Terry did not actually submit to the officers' show of authority until after he discarded the objects out of the driver's side window. Thus, at the time Terry threw the items out of his car, he had not been seized for purposes of the Fourth Amendment. Once the officers witnessed Terry discard the suspicious items out of his window, they had reasonable suspicion to support the traffic stop. After the officers observed Terry discard the items, the officers could lawfully detain Terry, and any evidence that the officers subsequently discovered was lawfully obtained. The trial court thus did not err in denying Terry's motion to suppress the evidence collected from Terry's car and home.
B. There is substantial evidence to support the trial court's finding that Terry did not possess the drugs for personal use
Terry contends that the trial court erred in finding him ineligible for probation under Proposition 36. According to Terry, "[t]here was not a preponderance of evidence he possessed cocaine base for sale...." Terry seems to suggest that the jury's failure to reach a verdict on count 1, the possession for sale count, demonstrates that the evidence was insufficient to support the trial court's determination that Terry's transportation of the cocaine base was not for personal use, but, rather, was for the purpose of selling the drugs.
"[T]he provisions of Proposition 36 essentially 'amended state law to create an alternative sentencing scheme for persons convicted of [nonviolent] drug offenses; it requires that qualifying offenders receive probation, conditioned on participation in and completion of an appropriate drug treatment program, rather than a prison term or probation without drug treatment, thus eliminating the court's traditional discretion to determine whether such offenders are suitable for probation. [Citations.]' [Citation.]" (People v. Harris (2009) 171 Cal.App.4th 1488, 1495-1496 (Harris).)
Section 1210.1 governs a defendant's eligibility for treatment under Proposition 36 and provides in relevant part: "Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program."
"The term 'nonviolent drug possession offense' means the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance..., or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. The term 'nonviolent drug possession offense' does not include the possession for sale, production, or manufacturing of any controlled substance and does not include violations of Section 4573.6 or 4573.8." (§ 1210, subd. (a), italics added.)
With respect to the trial court's finding of eligibility for Proposition 36 probation, the defendant has the burden of proving that the drug possession or transportation was for personal use. (People v. Dove (2004) 124 Cal.App.4th 1, 10 (Dove); see also People v. Barasa (2002) 103 Cal.App.4th 287, 295–296.) Although there may be instances in which a jury's verdict or special finding will establish a defendant's eligibility for Proposition 36 probation (see Harris, supra, 171 Cal.App.4th at p. 1498), in other situations "a jury's verdict will not necessarily determine whether the defendant is eligible or ineligible [for Proposition 36 probation]." (Dove, supra, at p. 10.) In a case like the one at issue here, when the jury's verdict leaves open the possibility that the transported drugs were not for personal use, the trial court must make a factual finding regarding whether or not the drugs were transported for personal use. The standard is proof by a preponderance of the evidence, not proof beyond a reasonable doubt. (See id. at pp. 10, 11.) On appeal, we review the trial court's finding to determine whether there is substantial evidence to support it. (Id. at p. 10.)
The fact that the jury could not reach a guilty verdict with respect to count 1, the possession for sale count, in no way bound the trial court with respect to its determination of the personal use question for Proposition 36 probation purposes. (See, e.g., Harris, supra, 171 Cal.App.4th at p. 1498 ["We recognize that the acquittal of a charge or not true finding of a sentencing allegation generally does not bind the trial court from redetermining the personal use issue for Proposition 36 purposes based on the preponderance of the evidence standard because an acquittal or not true finding merely means that the jury was not convinced beyond a reasonable doubt on such issue. [Citations.]"].)
Here, there was substantial evidence to support the trial court's finding that Terry was not transporting the cocaine base for personal use. The evidence that supports this finding includes the significant amount of the drug that Terry had in his possession, i.e., 12.31 grams; the fact that the drugs had been divided into rocks of a size commonly sold for small amounts of money on the street; that Terry was in an area of high drug sales, where sales of small quantities of rock cocaine are common; that Terry had $148 in small bills under the seat cover on the passenger seat of his car; and that officers found $2,600 in cash in Terry's house.
All of this is sufficient to support the court's finding, by a preponderance of the evidence, that Terry was transporting cocaine base for sale, and not for personal use, thereby rendering Terry ineligible for Proposition 36 probation.
C. Terry is entitled to additional conduct credits
At the time of Terry's sentencing, former subdivisions (b) and (c) of section 4019 allowed a defendant to earn up to two days of presentence behavior credit for each six-day period of confinement. (Added by Stats. 1976, ch. 286, § 4, amended by Stats. 1978, ch. 1218, § 1, & Stats. 1982, ch. 1234, § 7.) The January 25, 2010 amendments to section 4019 allowed a defendant to earn up to two days of presentence behavior credit for every four-day period of confinement. (Amended § 4019, subds. (b)(1), (c)(1); amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28X, § 50, eff. Jan. 25, 2010.) Subdivision (f) of the 2010 version of section 4019 provided that "if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody."
The Legislature amended section 4019 again, effective September 28, 2010, to essentially return the provision to its pre-January 25, 2010 version—i.e., to provide for only two days of conduct credit for each six-day period of confinement, such that "if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (§ 4019, subd. (f); see also subds. (b) and (c), as amended by Stats. 2010, ch. 426, § 2.) The Legislature left no doubt as to its intention regarding to which prisoners the September 28, 2010 amendments would apply; the Legislature added subdivision (g), which provides, "The changes in this section as enacted by the act that added this subdivision shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or road camp for a crime committed on or after the effective date of that act [i.e., September 28, 2010]." (§ 4019, subd. (g), as amended by Stats. 2010, ch. 426, § 2, italics added.) We refer to the version of section 4019 that was in effect from January 25 to September 28, 2010 as the 2010 version of section 4019.
The January 25, 2010 version of section 4019 excluded those who were "required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290), w[ere] committed for a serious felony, as defined in Section 1192.7, or ha[d] a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5" from being eligible to receive the additional conduct credits, so that those individuals could earn only two days for every six-day period of confinement, such that "six days will be deemed to have been served for every four days spent in actual custody." (Amended § 4019, subd. (f); see also subds. (b)(2) and (c)(2), amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28X, § 50, eff. Jan. 25, 2010.)
Terry contends that he is entitled to a recalculation of his presentence conduct credits under the 2010 version of section 4019, which, he asserts, applies retroactively to him since the judgment in his case is not yet final. A split has arisen in the appellate courts regarding whether the amendments that took effect on January 25, 2010, apply retroactively to defendants like Terry, whose sentences were imposed before the amendments became effective, but whose underlying convictions were not yet final on appeal on January 25, 2010. Some appellate court decisions have held that amended section 4019 applies retroactively pursuant to the holding in In re Estrada (1965) 63 Cal.2d 740 (Estrada), because the amendments mitigate punishment. Other decisions have held that amended section 4019 does not apply retroactively, because the Legislature did not indicate that it intended the amendments to apply retroactively. The Supreme Court is currently reviewing the issue.
See People v. Brown (2010) 182 Cal.App.4th 1354, 1363-1365, review granted June 9, 2010, S181963, and People v. Rodriguez (2010) 183 Cal.App.4th 1, 13-14, review granted June 9, 2010, S181808.
We recognize that the proper resolution of this issue is not clear-cut, and we await further guidance on the matter from the Supreme Court. However, in the absence of such guidance, we conclude that the cases holding that the January 25, 2010 amendments to section 4019 should apply retroactively because they effectively mitigate punishment are more persuasive than those that hold that the amendments do not apply retroactively.
In Estrada, supra, 63 Cal.2d at page 745, the Supreme Court established the general rule that an enactment that reduces the punishment for a crime operates retroactively, so that the lighter punishment is imposed. The Estrada court stated: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Ibid.)
The general principle established in Estrada applies to the amendments to section 4019 that took effect on January 25, 2010. The January 25, 2010 amendments effected a reduction in the overall time of imprisonment for any defendant who qualifies for conduct credits, and, thus, constituted a reduction in punishment for those less serious offenders who have demonstrated good behavior while in custody. The People contend that the underlying purpose of the January 25, 2010 amendments suggests that the Legislature did not intend retroactive application. Specifically, the People argue that purpose of the January 25, 2010 legislative amendments is twofold: one, to address budgetary concerns by reducing prison populations, and two, to create further incentives for good behavior. According to the People, the first purpose may be served by either retroactive or prospective application; however, the second purpose is served only by prospective application. Under the People's analysis, if the Legislature's only concern had been budgetary, it could have better served that purpose by granting additional credits to all prisoners, regardless of conduct. The People contend that the fact that the Legislature did not do this suggests that the Legislature had the additional purpose of creating incentives for good behavior, indicating the Legislature's intention that the January 25, 2010 amendments apply prospectively. However, if the Legislature's intention was to reduce prison populations, but to do so responsibly by providing early release only for less serious offenders who have demonstrated good behavior, such a purpose can be served by retroactive application of the 2010 version of section 4019. Rather than simply granting additional credits to all prisoners, the Legislature increased credits only for those prisoners who earned them. Thus, only those prisoners who have demonstrated good behavior, bothin the past and going forward, would be entitled to the additional credits under the January 25, 2010 amendments.
In addition, the People's argument overlooks the fact that even if amended section 4019 were to be applied prospectively, it would nevertheless provide additional credits for past behavior, since a prisoner sentenced shortly after January 25, 2010, would be granted the enhanced benefits, notwithstanding the fact that some or much of his or her presentence custody occurred before the effective date of that legislation, and, therefore, at a time when the additional incentives were not in place.
Accordingly, we conclude that pursuant to Estrada, the 2010 version of section 4019 applies retroactively to this case. We remand the matter to the trial court for a determination of any additional presentence credits to which Terry may be entitled.
IV.
DISPOSITION
The judgment is reversed to the extent that it fails to award Terry presentence custody credits under the amended version of section 4019. In all other respects, the judgment is affirmed. The matter is remanded to the trial court for a determination of any additional presentence credits to which Terry may be entitled pursuant to this opinion.
I CONCUR: McINTYRE, J.
BENKE, J., dissenting and concurring.
For the reasons stated in People v. Zarate (2011) 192 Cal.App.4th 939 I conclude Terry is not entitled to the presentence credit he requests under Penal Code section 4019. In all other respects, I agree with the majority opinion.