Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUK-CRCR-06-74009.
McGuiness, P.J.
Bret William Bogue (appellant) appeals from a judgment entered after he pleaded guilty to felony management of a location used for the unlawful manufacture and storage of a controlled substance (marijuana) (Health & Saf. Code, § 11366.5). He contends the trial court: (1) abused its discretion in denying his motion to withdraw his plea in light of a change in the law that affected his defense that he was growing marijuana as part of a medical use collective; and (2) erred in denying his motion to suppress evidence. We reject the contentions and affirm the judgment.
All statutory references are to the Health and Safety Code unless otherwise stated.
Factual and Procedural Background
An information filed February 4, 2008, charged appellant with cultivation of marijuana (§ 11358, count 1) and possession of marijuana for sale (§ 11359, count 2). According to the probation report, “On September 29, 2006, Deputy Hendry [of the Mendocino County Sheriff’s Department] was... in a marked patrol unit and smelled the strong odor of fresh marijuana. The Deputy attempted to contact subjects in front of the residence, who fled. Deputy Hendry did make contact with Bret Bogue and Neal Sacheck, who came out from inside the residence.... [T]he Deputy located a large amount of marijuana bud being processed in the downstairs room, as well as five subjects... trimming. Bogue told Deputy Hendry he hoped to realize about [25] pounds of processed marijuana from all that was there. Bogue said all of the marijuana belonged to him. [¶] Agent Nishiyama spoke with Bogue, who was detained and not arrested. He showed the Agent the processed marijuana and stated he was growing it for compassionate purposes. He showed Agent Nishiyama eight medical recommendations for marijuana, including one for [him] and his wife. None of the paperwork indicated that Bogue was a caregiver.... Sergeant Noe from the County of Mendocino Marijuana Eradication Team (COMMET) took custody of the processed marijuana, which was weighed at COMMET... [N]inety-two pounds of semi-trimmed marijuana and 249 pounds of processed marijuana [was]e seized. The marijuana was determined to still be wet and from an indoor garden. Sergeant Noe placed a [26] pound sample along with five random samples in evidence, and destroyed the rest per court order dated October 2, 2006.
The probation report provides only a brief summary of the circumstances of the crime; the facts and procedures as they relate to appellant’s contentions on appeal are set forth in more detail below in the Discussion section of this opinion.
On February 29, 2008, appellant filed a motion to suppress “all evidence seized without a search warrant as well as all police observations made as a product of an unlawful search and arrest....” The trial court denied the motion. On July 14, 2008, the parties entered into a negotiated disposition whereby appellant pleaded guilty to a newly added charge of felony management of a location used for the unlawful manufacture and storage of a controlled substance (§ 11366.5, count 3) in exchange for dismissal of the remaining charges and the prosecution’s agreement not to seek a prison sentence.
On September 10, 2008, appellant filed a motion to withdraw his plea. The trial court denied the motion. At sentencing, the court suspended imposition of sentence and placed appellant on probation for three years with various conditions, including a requirement that he spend 180 days in county jail. Appellant filed an amended notice of appeal on November 12, 2008, and requested a certificate of probable cause. The trial court granted the request for a certificate of probable cause on November 24, 2008.
Motion to Withdraw Plea
Appellant contends the trial court abused its discretion in denying his motion to withdraw his plea in light of a change in the law affecting his defense that he was growing marijuana as part of a medical use collective. We reject the contention.
Background
In 1996, the California electorate approved Proposition 215 and adopted the Compassionate Use Act (CUA), which grants a limited immunity from prosecution for the cultivation or possession of marijuana by a patient or a patient’s primary caregiver “who possesses or cultivates [the] marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” (§ 11362.5, subd. (d); see also, e.g., People v. Urziceanu (2005) 132 Cal.App.4th 747, 772-773 (Urziceanu).) In 2003, the Legislature passed the Medical Marijuana Program Act (MMPA) in order to “[c]larify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers.” (Stats. 2003, ch. 875, § 1, subd. (b)(1).) The MMPA provides in part that qualified patients and primary caregivers can register and receive annually renewable identification cards to show law enforcement officers who may otherwise arrest them for marijuana-related crimes. (§§ 11362.71, 11362.745.) The MMPA also placed a limit on the amount of marijuana patients and primary caregivers could possess absent a doctor’s recommendation that they possess more (§ 11362.77), and allowed for the collective or cooperative cultivation of marijuana for medical purposes by qualified patients or primary caregivers (§ 11362.775) (collective defense).
In Urziceanu, supra, 132 Cal.App.4th at page 758, the defendant was convicted of a number of crimes, including conspiracy to sell marijuana. The defendant argued his conspiracy conviction must be reversed because the trial court did not allow him to present evidence of his involvement in the collective cultivation and distribution of medical marijuana. (Id. at pp. 782-783.) The Court of Appeal concluded the trial court erred in not allowing the defendant to present evidence in support of a collective defense, which was allowed by the MMPA, section 11362.775. (Id. at pp. 782, 785.) The Court observed that the MMPA’s “specific itemization of marijuana sales law indicates it contemplates the formation and operation of medical marijuana cooperatives that would receive reimbursement for marijuana and the services provided in connection with the provision of that marijuana.” (Id. at p. 785.)
On May 22, 2008, during the pendency of appellant’s case, the Second District Court of Appeal, Division Three, issued People v. Kelly (2008) 163 Cal.App.4th 124, 132-133 (Kelly), which held that section 11362.77—the provision of the MMPA that limits the amount of marijuana that qualified patients and primary caregivers can possess—was an unconstitutional amendment of the CUA because article II, section 10, subdivision (c), of the California Constitution bars the Legislature from amending an initiative unless the initiative grants the Legislature the authority to do so. Relying on Kelly, the prosecutor in appellant’s case moved for an order barring appellant from presenting a collective defense under the MMPA, section 11362.775. The prosecutor argued that section 11362.775, like section 11362.77, constituted an unconstitutional amendment of the CUA because “[t]he CUA only addressed the needs of patients and their caregivers” and section 11362.775 “clearly expands the will of the voters as to who is entitled to the protections of the CUA....”
At a July 10, 2008, hearing, the trial court noted that a petition for review had been filed in Kelly and questioned “what effect that may have on the value of Kelly.” Defense counsel argued Kelly “has no value right now as it stands” and that in any event, it was a “very narrow decision” that did not address the collective defense. He stated, “as we have seen in the Urziceanu decision, the collective defense is something that was spawned out of Proposition 215 urging to the Legislature that they enact a procedure for distribution.” The prosecutor stated he “completely” disagreed with defense counsel “on the interpretation of Kelly and its applicability....” The court asked whether the trial should be continued until the Supreme Court decided whether to grant review in Kelly, and defense counsel moved for a continuance. The prosecutor reiterated his position that Kelly was good law and asked, “But what do we do with every other marijuana case that we deal with every day? We can’t just continue every case.”
After a recess, the parties discussed various authorities, including California Rules of Court provisions relating to when a published opinion may be cited. The prosecutor stated, “if this court is inclined to grant the... motion to continue the jury trial, ... I would ask the court... to not make a ruling today with respect to whether Kelly is good law.... I ask the court to allow leave for both parties to file a brief on that issue when we come back again next week and we, first, make the decision as to whether we can lawfully rely on Kelly.... I understand there is some concern in the court’s mind whether we can or not. [¶] In the event the court decides that Kelly is... citable, ... I’d ask the court to—at that point... set a date to begin the voluminous 402 [in limine] motions that will occur before we even get to a jury trial in this case.”
The trial court stated, “First of all, let me say that I haven’t come to any conclusion in terms of whether it’s citable or not. I need to, obviously, digest some of these rules and do a little more research.... [¶] Secondly, ... I have been somewhat persuaded by the prosecution argument that we’ve got a lot of these cases in the works, and I’m not sure at this juncture if it would be wise just to put this case off. We might as well go ahead and try it and what happens, happens. [¶] Finally, I do agree, also, that the 402 motions are going to take some time. We’re scheduled to start trial on Monday. What I would suggest is that we use Monday for the court to give a final determination... regarding the citability of Kelly and we set a timetable to hear the 402 motions starting on Monday.” The defense counsel reiterated that under cases including Urziceanu, “you do have the collective defense.” The court stated it had reviewed all of the cases and that “on Monday we’ll be ready to go.”
When the parties returned to court on Monday, July 14, 2008, there was no discussion of Kelly. The parties discussed appellant’s motion for a continuance and the trial court denied the motion. The parties then discussed when in limine motions, jury selection, and the presentation of evidence should begin. After a recess, the parties announced they had reached a negotiated disposition whereby appellant would plead guilty to a newly added charge of felony management of a location used for the unlawful manufacture and storage of a controlled substance (§ 11366.5, count 3), in exchange for dismissal of the remaining charges and the prosecution’s agreement not to seek a prison sentence. Appellant pleaded guilty, and based on the parties’ stipulation, the trial court found there was a factual basis for the plea. The trial court accepted appellant’ guilty plea and dismissed the remaining charges after finding he had knowingly, intelligently and voluntarily waived his rights in entering the plea.
Appellant requested a continuance on the ground that his attorneys had an unanticipated scheduling conflict.
On September 10, 2008, appellant filed a motion to withdraw his plea. Defense counsel submitted a declaration in support of the motion, stating he informed appellant “there [was] no guarantee” the trial court was going to allow him to present a collective defense and that this “consultation [with appellant] was the motivating factor, and premise, for [appellant] to take the plea agreement.” Counsel noted that after appellant entered his plea, the Court of Appeal for the Fourth District, Division One, decided the case of County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 830, fn. 17 (San Diego NORML), which held that section 11362.71—the provision of the MMPA that allows patients and primary caregivers to obtain identification cards—was valid because, unlike section 11362.77, which was ruled unconstitutional in Kelly, section 11362.71 did not amend the CUA. Counsel further noted that on August 25, 2008, the California Attorney General issued a “Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use, ” which provided an opinion as to what constitutes a lawful medical marijuana collective. He declared, “Counsel believes that the facts in this case conform to elements of a lawful collective described in the California Attorney General opinion.... [¶] Counsel has no doubt that the judge would permit the collective defense, had counsel proffered the [San Diego NORML] decision and the... California Attorney General Opinion in support of his argument. [¶] If Counsel had [these authorities] at his disposal, Counsel would have never advised [appellant] to accept the plea, and has full knowledge that [appellant] would not have entered his plea.”
As appellant points out on appeal, the California Supreme Court granted review of Kelly in August 2008, approximately one month after appellant entered his plea. The Supreme Court has since issued an opinion affirming the Court of Appeal’s holding that section 11362.77 invalidly amended the CUA. (People v. Kelly (2010) 47 Cal.4th 1008, 1012.)
The trial court denied appellant’s motion to withdraw his plea, stating, “I am not persuaded by the defense argument. In any trial there’s a certain level of uncertainty, not only on the evidence before the jury but on various legal questions that will be presented to the court. What the court would have ruled—or the way the court would have ruled if the issue would have been presented to the court at this juncture is merely speculation. [¶] The motion is denied.”
Discussion
Penal Code section 1018 allows a defendant to withdraw a guilty plea at any time before judgment on a showing of good cause by clear and convincing evidence. (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617.) To establish good cause, the defendant must show the plea was the product of “mistake, ignorance, fraud, duress, or any other factor that overcomes the exercise of free judgment....” (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) “The fact that [the defendant] may have been persuaded, or was reluctant, to accept the plea is not sufficient to warrant the plea being withdrawn. [Citation.] ‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’ [Citation.]” (Id. at p. 919.)
“A decision to deny a motion to withdraw a guilty plea ‘ “rests in the sound discretion of the trial court” ’ and is final unless the defendant can show a clear abuse of that discretion. [Citation.] Moreover, a reviewing court must adopt the trial court’s factual findings if substantial evidence supports them. [Citation.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) An abuse of discretion occurs if the trial court rules “in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice.” (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)
Appellant argues there was good cause to withdraw his plea because, after the entry of his plea, the law changed to provide him with the opportunity to present a collective defense—a defense he claims was unavailable to him at the time of the plea, pursuant to Kelly. He states, “the trial court and the prosecutor believed the court was bound by the Kelly decision.... Because appellant faced serious charges which likely would have led to an extended prison term, and because he had serious health problems which would have been adversely affected by a prison term, appellant had no choice but to accept a plea bargain which would result in probation and permission for him to continue the use of marijuana as a medical treatment for his ailments.” He relies on People v. Rossi (1976) 18 Cal.3d 295, 304 (Rossi) and People v. Collins (1978) 21 Cal.3d 208, 214 (Collins) for his position that a change in law constitutes good cause to withdraw a plea. The cases, however, are distinguishable.
In Rossi, the defendant was found guilty of five counts of oral copulation. (18 Cal.3d at p. 298.) It was undisputed the acts took place between consenting adults. (Ibid.) After judgment but before appellate finality, the Legislature amended the oral copulation statutes in a way that “completely repealed the provisions under which defendant was convicted, ” making her actions no longer criminal. (Id.at p. 302.) Rossi reversed the conviction, holding that “ ‘when the legislature repeals a criminal statute or otherwise removes the State’s condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct. The rule applies to any such proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it.’ ” (Id. at p. 304, quoting Bell v. Maryland (1964) 378 U.S. 226, 230.) Similarly, in Collins, the defendant pleaded guilty to an act of oral copulation and on appeal, the Supreme Court reversed the conviction on the ground that the conduct that had produced the conviction was no longer criminal. (21 Cal.3d at p. 214.) Rossi and Collins “deal with the legislative decriminalization of conduct, the effect of which is to put an end to all prosecutions and proceedings under the repealed statute not reduced to final judgment.” (People v. Robertson (1989) 48 Cal.3d 18, 51.) No such decriminalization occurred in this case.
Moreover, appellant has not shown that the laws regarding the availability of a collective defense actually changed after he entered his plea. As defense counsel argued below, at the time appellant entered his plea, there existed a Court of Appeal case, Urziceanu, supra, 132 Cal.App.4th at pages 782 and 785, which held the trial court erred in not allowing the defendant to present evidence in support of a collective defense. Further, although Kelly invalidated section 11362.77, it did not address whether the collective defense was still available under section 11362.775. The trial court had made no decision as to whether Kelly also invalidated the collective defense, and stated it had not even “come to any conclusion in terms of whether it’s citable or not.” It had also made no decision regarding whether appellant would be allowed to present evidence in support of the collective defense in light of the circumstances of his case. Thus, at the time appellant entered his plea, it was, as the trial court stated, “merely speculation” that it would have denied him the opportunity to rely on the collective defense had the parties proceeded to trial.
Section 11362.82 provides that “[i]f any section, subdivision, sentence, clause, phrase, or portion” of the MMPA is held invalid or unconstitutional, “that portion shall be deemed a separate, distinct, and independent provision, and that holding shall not affect the validity of the remaining portion thereof.” Recently, the Court of Appeal for the Fourth District, Division One, distinguished Kelly and held the collective defense is valid because it does not constitute an unconstitutional amendment of the CUA. (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1011.)
“Often the decision to plead guilty is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.” (Brady v. United States (1970) 397 U.S. 742, 756-757.) The record shows that in entering his guilty plea, appellant consulted with competent counsel who reasonably advised him “there was no guarantee” the trial court was going to allow him to present a collective defense. The fact that neither appellant nor his counsel anticipated that later cases would specifically validate the collective defense does not constitute good cause to allow appellant to withdraw his plea.
Motion to Suppress
Appellant contends the trial court erred in denying his motion to suppress evidence. We disagree.
Background
At the hearing on the motion to suppress, Deputy Raymond Hendry of the Mendocino County Sheriff’s Department testified that at about 4:00 p.m. on September 29, 2006, he was on his way to assist the California Highway Patrol deal with juveniles riding ATVs when he noticed a strong odor of marijuana coming from a residence located on Ridgewood Road in Willits. The residence was a “two-level residence” with a deck on the upper level and an entrance into the home below the deck. Hendry stopped in front of the residence, and while still sitting in his vehicle, attempted to make contact with a man who was standing on the street outside the residence. The man walked away. When Hendry asked the man again whether he could talk to him, the man continued to walk away and proceeded along the side of the house. At that point, Hendry exited his vehicle, walked down the driveway, and made contact with another man who was walking outside the house. The man said he was leaving, and when Hendry asked if he knew who and where the owner of the house was, the man said he did not know where the owner was.
Hendry then walked along a path on the side of the house and came upon a wooden deck. He climbed up the steps of the deck and proceeded down its walkway. The marijuana odor became stronger. As Hendry got to the corner of the walkway, he heard what he thought was someone or something running through the bushes. He turned the corner and saw a white male running through the woods.
For his safety, Hendry returned to the front of the house where he made contact with appellant and a man named Neal Sacheck. Hendry asked the men who owned the house, and Sacheck responded it was his. Hendry asked whether there was marijuana growing on the property. Appellant responded, “no, ” and Sacheck responded, “yes.” During this conversation, the three of them walked towards the back and “ended up somewhere back [in the deck area].” When he told the men he “wanted medical marijuana recommendations” from them, appellant said he did not have all of them with him. Appellant also told Hendry that people were “trimming” medical marijuana inside.
For “[o]fficer safety” reasons, and because he had seen “several subjects jumping from the deck into the woods, ” Hendry asked appellant to go inside the residence and count the number of people inside. Appellant went inside and returned and said there were eight people. Another deputy, Deputy Wells, arrived. Hendry then asked appellant “if he would walk us downstairs to the bottom portion of the house.” As Hendry, Wells and appellant walked towards the door to the bottom portion of the residence, Hendry heard the locking mechanism lock. Wells checked the door knob to see if it would open but the door was locked. Appellant then knocked on the door several times and encouraged the people inside to open the door. The door opened and appellant went inside, followed by Hendry, who was a few feet behind appellant, and Wells. As they did so, Hendry was having a conversation with appellant. Appellant said “This is my medical marijuana. Everything is legal.” He did not try to close the door behind him or tell Hendry he could not come in. Appellant then walked Hendry through the bottom part of the residence. Hendry said he did not ask appellant for permission to enter the home and did not have or obtain search warrant. Hendry did not have his gun drawn and was not shouting at appellant or instructing him to do anything when he entered the residence.
On cross-examination, Hendry testified he did not “exactly recall how we all ended up at the bottom of the house at all.”
Robert Ayala, appellant’s half brother, testified that on September 29, 2006, he “pulled up” to the residence, parked his car, and was walking towards the residence when he saw a sheriff’s vehicle “in the cul-de-sac coming down [the street].” He continued to walk and went to the lower deck and went inside. Appellant, who was also inside, told Ayala to lock the door behind him, and left the residence for a few minutes. When appellant returned, he knocked on the door and said, “It’s Bret.” Ayala unlocked the door and opened it. Appellant left the residence a second time and again told Ayala to lock the door behind him. Ayala testified that within a minute after he had arrived at the residence, he knew the police were there because “[t]hey were knocking on the windows and the door.”
Ayala further testified that when appellant returned to the door the second time, “the cops were at that door and... they were knocking on it, pulling on the handle. And they said, ‘Let us in or we will break it... down’ ” and also said, “ ‘Open it or we’ll open it, ’ something to that effect.” The police made this statement “repeatedly.” Ayala became “more cautious” and did not open the door for some time. The “second” Ayala finally unlocked the door, “the door opened enough to push [him] backwards, ” and an officer entered first. The officers did not have their guns drawn and did not push him on the ground but they were shouting at him.
Appellant testified that when he first encountered Hendry, Hendry “had already walked past the initial gravel driveway up onto the deck and through over to the back side of the deck....” Hendry asked, “Who jumped in the woods?” and appellant responded he did not know. Hendry instructed everyone to go to the deck and “do not move, ” then instructed appellant to go downstairs and count the number of people inside. Appellant testified that Hendry was “aggressive” and “all over the place; walking all over the decks, back from one side to the other of the deck, banging on the doors and trying to get in.” When asked whether he had arrested appellant and the others, Hendry “kept on saying, ‘You’re not arrested, but you cannot go anywhere. You cannot leave this premise.’ ”
Appellant further testified that at some point, Hendry asked appellant to go inside to count the number of people inside. Once inside, appellant, who had already instructed Ayala not to open the doors for anyone but him, “re-instruct[ed]” Ayala “regarding the door being locked.” Appellant returned and told Hendry the number of people who were inside the house. Later, Hendry once again asked appellant to go count the number of people who were inside. As appellant proceeded to the door, he was “startled” that two officers including Hendry were following him. Appellant heard the lock mechanism lock on the door. Appellant said, “Hey, it’s Bret.” At that point, before he “could do anything else, the officers jumped up at the door and... it looked like they were going to kick in the door.” They had their hands on their guns and appellant, who was in fear of his life, stepped aside. They said, “Open the door or we’ll kick the door open. Mendocino County Sheriff’s.” The officers pushed the door open and went inside. Appellant never went through the door. Appellant further testified that he “know[s]” he had a lawful medical marijuana operation. He stated, “I know [the operation was legal] per my conversations with the Mendocino County Sheriff himself in his office for over 30 hours of consultations.”
On rebuttal, Hendry denied jumping on or banging on doors or windows. He testified he did not do anything the day of the incident to cause anyone to fear for their lives. When asked to describe the encounter he had with appellant before entering the house, Hendry testified, “Everything was fine. We even talked about the sunsets, the beautiful views... of the residence. At no time was I angry or disgruntled towards anybody that was there.” Hendry testified he was in fear for his safety when he initially walked on the deck but never touched his weapon.
Pursuant to a stipulation of the parties, a portion of a document entitled “Transcript of Taped Interview Between [appellant] and... Hendry and Mendocino Major Crimes Task Force Commander Nishiyama” was admitted into evidence. The transcript reflects Hendry asking appellant how many recommendations he has on site, and appellant responding he does not “have all of them here right now” but that “every one of us... ha[s] a recommendation.” Appellant states, “we are processing our medical marijuana, ” and also states he has met with “every sheriff, every D.A., ” all of whom “know exactly what I’m doing. I’m on record. I’m on file.” He states, “everything that we’re doing is up [and] above board.... We’re not doing anything illegal.” At one point, Hendry asks “who ran through the trees, ” and when appellant cannot answer, Hendry says, “I’ll tell you what, how about you walk downstairs, you look at... whoever’s down there... [¶]... and then maybe you can tell me who’s not there. And I will wait right here.” Hendry asks appellant how many people “are still downstairs, ” and appellant responds there are eight. Appellant reiterates that what he is doing is within his right, and Hendry responds, “so that’s what we’re doing.... I’m just going to get to the bottom of this. Okay? [¶]... [¶]... And then as soon as that happens, we’ll be out [¶]... [¶]... of your hair.” Hendry informs “everybody” he is there because he smelled marijuana and asks them to “hang tight and I’ll be right back. You can even walk downstairs but just make sure everybody hangs tight.” He states he does not want anyone else “running in the trees, ” and appellant responds, “We don’t need to—I’m not going to run, man.” Appellant states, “It’s completely legal. It’s just unbelievable.” Appellant explains the marijuana came from his medical field and that they are “just trimming our marijuana from our field.” When asked why, he responds, “Why? Because I don’t have a place to trim it there and there isn’t a viable place to do it there. Okay? And up here in the middle of nowhere, very quiet.” Hendry says it is “very understandable” and that he is not there to “hover over you” but that he is “trying to figure out what is going on here.” Appellant states he is “within a legal limit” and states, “Everything that I’m doing is legal. It’s Proposition 215. I go to all the meetings. I—I’ve talked with the sheriffs. I’ve talked with the D.A.s. I have all written statements.” Hendry states he is waiting for one more deputy to arrive “and then we’re going to figure this out” to determine whether what is going on is legal. At one point, appellant states, “We didn’t do anything, ” and an unidentified speaker states, “Not yet. You’re being detained at this point.” Appellant asks, “We’re all being detained? [¶]... [¶] For?” and the unidentified speaker states, “That’s what we’re going to make a determination.” At various times, Hendry speaks to other individuals and asks them questions, including where they are from, whether they have recommendations, and whether they “have [any] part of this.” He asks an unidentified speaker how long he has lived at the residence, and the speaker responds he has been there “[a]bout a month and a half.” They converse about the nice view and the clouds and the “rolling hills” in the area.
The trial court denied the motion to suppress. It stated that having listened to the taped interview, it “cannot draw a conclusion... that the officer was out of control, was pounding on windows, was pounding on doors.... I think those particular issues do go to the question of credibility.” The court noted that Hendry was at the residence “because of the smell of marijuana” and told appellant and others he was there to “determine what’s going on.” The court also noted that appellant “freely admitted that he was growing marijuana, everyone knew he grew marijuana. He was there processing marijuana. He had people downstairs trimming the marijuana for him. He was in total compliance. He had spoken to members of law enforcement and everybody knew what he was doing on the premises. [¶]... [H]e certainly displays a certain pride in the business that he is conducting in regard to the cultivation and processing of marijuana.” The court further stated, “at some point the officers follow the defendant downstairs. I don’t know of any other reason... the officers are following you downstairs unless they are going to go in and check on what you are doing downstairs, which you believe is totally legal. [¶]... The officers are both in uniform. They are standing right there according to their version.... The knock occurs, the statement, ‘It’s me. Open the door.’ The door opens. The defendant goes in and is followed by the officers. Yes, the defense version is different from that. But I don’t find the defense version to be credible. [¶] I find based on the totality of these circumstances that this was implied consent and the officers entered with the consent of the defendant.”
Discussion
The Constitutions of the State of California and of the United States bar unreasonable searches and seizures of individuals and their property by government officials. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13.) Thus, at trial, the prosecution bears the burden of justifying any warrantless search. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272.) Statements and evidence obtained as the result of a defendant’s unconstitutional search or seizure may require suppression. (Wong Sun v. United States (1963) 371 U.S. 471, 484-485; In re Tyrell J. (1994) 8 Cal.4th 68, 75.) Penal Code section 1538.5, subdivision (a)(1), provides in part: “A defendant may move... to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: [¶] (A) The search or seizure without a warrant was unreasonable.” (See also People v. Curley (1970) 12 Cal.App.3d 732, 746 “To state [it] positively: a warrantless seizure of evidence may be valid if reasonable cause for the seizure exists”].)
“In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. [Citation.]” (People v. Miranda (1993) 17 Cal.App.4th 917, 922; see also People v. Ingram (1993) 16 Cal.App.4th 1745, 1750.)
Although the home is a location enjoying a heightened level of privacy (United States v. Karo (1984) 468 U.S. 705, 714), this expectation of privacy may be waived by a resident’s consent to a government search of the home. (Florida v. Jimeno (1991) 500 U.S. 248, 250-251; People v. Bravo (1987) 43 Cal.3d 600, 605.) Thus, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” (Katz v. United States (1967) 389 U.S. 347, 351.) Residents may consent to a search of their homes either by express invitation or by implicit consent to enter. (People v. Camacho (2000) 23 Cal.4th 824, 832; People v. Frye (1998) 18 Cal.4th 894, 990, disapproved on other grounds by People v. Doolin (45 Cal.4th 390, 412, fn. 22.) Consent to enter a residence may be given nonverbally. (People v. Frye, supra, 18 Cal.4th at p. 990 [consent to enter inferred where victim opened the door and pointed to defendant when officer asked who had hurt victim]; People v. Harrington (1970) 2 Cal.3d 991, 996 [opening door, stepping back and making welcoming gesture with an arm was nonverbal consent], superseded by constitutional amendment on other grounds as stated in People v. Coffman and Marlow (2004) 34 Cal.4th 1, 117-118; People v. Martino (1985) 166 Cal.App.3d 777, 791 [defendant opened door, stepped back, and told officer there were other people in the house and he did not know if they were armed], People v. Guyette (1964) 231 Cal.App.2d 460, 464 [subject tossed the officer the key to enter the premises]; United States v. Mejia (9th Cir.1991) 953 F.2d 461, 466 [although defendant’s wife’s permission to enter the house did not include permission to enter every room in the home, her failure to object to their following her into a bedroom constituted implied consent to enter that room].)
Whether consent was given in a particular case is a question of fact for the trial court to determine, and a trial court’s affirmative finding is upheld on appeal if supported by substantial evidence. (People v. James (1977) 19 Cal.3d 99, 107; People v. Parrison (1982) 137 Cal.App.3d 529, 536.) The scope of a consent to search is measured by a standard of reasonableness, i.e., what the typical reasonable person would have understood by the exchange between the officer and the defendant. (Florida v. Jimeno, supra, 500 U.S. at p. 251.) In evaluating the reasonableness of a challenged search, the court looks to “the totality of the circumstances.” (People v. Souza (1994) 9 Cal.4th 224, 230.)
Appellant argues “the evidence did not support [the trial court’s] finding” “ ‘that [appellant’s actions amounted to] implied consent and the officers entered with the consent of the defendant.’ ” We disagree. Hendry testified he asked appellant “if he would walk us [Hendry and Wells] downstairs to the bottom portion of the house.” Although Hendry did not recall the specifics of how they ended up downstairs, he testified that he, Wells and appellant walked downstairs and that appellant knocked on the door and encouraged the people inside to open the door. Hendry testified he did not engage in any physical display of force and did nothing to place appellant in fear. (See People v. Harrington, supra, 2 Cal.3d at pp. 996-997 [consent supported by facts that officer did not unholster gun or engage in any other potentially coercive action and occupant made gesture indicating permission to enter].)
Appellant also asserts the officers “unlawfully detained him” but offers no argument in support of the assertion. An assertion “is deemed to be without foundation and requires no discussion” where, as here, it is made “without any argument of or authority for its position.” (People v. Ham (1970) 7 Cal.App.3d 768, 783 disapproved on other grounds in People v. Compton (1971) 6 Cal.3d 55, 60.) However, assuming—without deciding—there was a detention, we would conclude the detention was lawful. A detention is lawful when there are specific and articulable facts before the officer reasonably suggesting the suspect has committed, is committing, or is about to commit, a crime. (Terry v. Ohio (1968) 392 U.S. 1; In re James D. (1987) 43 Cal.3d 903, 911-912.) Here, Hendry noticed a marijuana odor that got stronger as he approached the residence, individuals outside the residence were evasive, and at least one man ran away through the woods. Appellant told Hendry that people were “trimming” medical marijuana inside and that he did not have recommendations with him for all of the individuals for whom the marijuana was being trimmed. Although appellant repeatedly stated that what he was doing was legal, the fact that circumstances may be consistent with lawful activity does not deprive a police officer of the authority to entertain a reasonable suspicion of criminal conduct and commence an investigative detention. (In re Tony C. (1978) 21 Cal.3d 888, 894.)
Appellant attempts to distinguish cases, including People v. Frye, supra, 18 Cal.4th 894, and People v. Harrington, supra, 2 Cal.3d 991, in which courts found implied consent. He asserts that he, unlike the subjects in those cases, did not exhibit any “positive behavior” demonstrating he was permitting the officers to enter. However, when the door opened, appellant entered with full knowledge that Hendry was just a few feet behind him, and was in fact having a conversation with him at the time. Appellant did not close or attempt to close the door behind himself and did not tell Hendry he could not come in, but instead stated, “This is my medical marijuana. Everything is legal, ” and proceed to show him around the bottom part of the residence. Appellant’s acts were tantamount to inviting the officers into the residence. Moreover, before the entry occurred, Hendry had made various statements indicating he was there to determine the legality of what appellant was doing, and appellant repeatedly said (and also testified at the hearing on the motion to suppress) that he believed his medical marijuana operation was legal. From the above evidence, the trial court could reasonably determine that appellant impliedly consented to having the officers enter the residence in order to conduct a compliance check.
Appellant argues that Hendry’s “testimony concerning the events surrounding the search was evasive and self-serving” and that while Hendry testified in detail about most aspects of his encounter with appellant, he could “not recall” the details of what happened at the time he entered the residence. This argument, however, is essentially an attack on Hendry’s credibility. We will not interfere with the trial court’s credibility finding unless the testimony on which the finding rests is inherently improbable or physically impossible. (People v. Barnes (1986) 42 Cal.3d 284, 306; People v. Huston (1943) 21 Cal.2d 690, 693, overruled on other grounds by People v. Burton (1901) 55 Cal.2d 328, 352.) We discern no inherent improbability or physical impossibility in Hendry’s testimony.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.