Opinion
C078699
08-24-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES HENRY BROWN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F04903)
After both the preliminary hearing magistrate and the trial court denied his motion to suppress, defendant James Henry Brown pleaded no contest to possessing methamphetamine for purposes of sale (Health & Saf. Code, § 11378, count one), and to being a felon in possession of a firearm. (Pen. Code, § 29800, subd. (a)(1), count two.) He admitted one strike prior. The court sentenced him to a total term of six years in prison and did not award him any presentence conduct credits.
Further undesignated statutory references are to the Penal Code.
Defendant appeals the denial of his suppression motion, arguing he was unlawfully detained because officers lacked a reasonable suspicion based upon articulable facts that he was involved in any criminal activity. He also contends no exceptions to the Fourth Amendment's warrant requirement justified following him into the residence after he tried to flee upon seeing the officers. In defendant's view, the court erred in failing to exclude all of the evidence collected as the fruit of an illegal search. Defendant finally argues he was entitled to an award of presentence conduct credits pursuant to section 4019.
We conclude defendant's motion to suppress was properly denied. We therefore affirm the judgment. We remand the matter to the trial court, however,so that the court may calculate on the record defendant's presentence conduct credits, if appropriate, under section 4019.
FACTS AND PROCEEDINGS
This factual background is based on testimony elicited at the preliminary hearing.
In July 2014, 18-year-old C.R. and her mother, Shannon R., resided at 8689 Vintage Park Drive in Sacramento (the Residence or the Duplex). The residence was one unit of a duplex. Their front yard was covered with trash and debris.
A Web site for the Sacramento County Sheriff's Department had received two anonymous e-mails complaining about a property in the vicinity of the Residence. According to the anonymous e-mail tips, the home of concern had significant foot traffic to and from the house such that the tipster believed drugs were being sold there, and the home had significant debris scattered throughout the front yard resulting in a nuisance condition on the property. One of the tips listed the address as 8699 Vintage Park Drive, and the other identified the adjoining duplex unit, which had a street address of 8685 Vintage Park Drive.
At the time, Deputy Andrew Miller was assigned to the department's Problem Oriented Policing Team, which handles community complaints about such things as high drug trafficking areas or code enforcement violations. While following up on the e-mail tips, he learned that other officers had spoken to the neighbor living in the duplex attached to the Residence about a month prior, and that, as a result, the neighbor's residence had been ruled out as the subject of the tips. Those deputies had also observed significant trash in the Residence's front yard. He also discovered that the other street address listed 8699 Vintage Park Drive, which was very similar to the Residence at 8689 Vintage Park Drive, did not actually exist.
Despite the discrepancies with the exact street address, Deputy Miller formed the opinion that the e-mail tips actually referred to the Duplex unit. He based his opinion on the above information together with his own observations of trash on the property as well as his personal knowledge of the neighborhood from having grown up there and from also having worked patrol there for almost eight years.
A records check on the property also revealed that several individuals on probation or parole had been contacted there, and one individual, who was on searchable postrelease community supervision, was listed as living at the house. Deputy Miller had also made previous contacts with persons on probation or parole at the residence. Many of those people were required to register for various drug offenses under Health and Safety Code section 11590. Someone had also been stabbed in the Residence's front yard on July 7, 2014.
In the early afternoon of July 16, 2014, Deputy Miller and several other deputies and probation officers went to the Residence to follow up on the e-mail tips as well as on the previous stabbing incident. They were wearing tactical-style raid vests; the front and back of each vest clearly identified them as deputy sheriffs or probation officers.
As they approached the house, they observed a vehicle parked in the driveway of the adjoining duplex with a man sitting in the car. The man said he was on probation, and one of the detectives said he "possibly matched" the description of the stabbing suspect. He was detained and arrested later that day for the stabbing.
Deputy Miller and Probation Officer Marin continued to the front door of the Residence. They knocked on the door and C.R. answered. When asked whether she lived at the location, C.R. responded that she did. She told the officers that her mother was sleeping, but a few seconds later her mother, Shannon R., appeared at the door. Both women stepped out onto the front porch, partially closing the door behind them. Deputy Miller informed them why they were there.
While the officers were speaking with the women, defendant opened the front door from the inside of the home. According to Deputy Miller, as soon as defendant spotted the officers, his eyes "got huge," and he seemed surprised to see them. Deputy Miller asked him his name and whether he lived at the location, but defendant just stood there and did not respond. Deputy Miller then asked him whether he was on probation or parole. Again, defendant did not respond. Instead, he quickly tried to close the door and took off running towards the back of the residence. Before the door closed, however, Deputy Miller stuck his foot out to keep it open. He saw defendant run down a hallway and disappear from sight.
Given the purpose of their visit—to follow up on the narcotics tip and investigate the prior stabbing incident—and defendant's suspicious behavior and subsequent flight upon seeing law enforcement, Deputy Miller and another officer decided to enter the home. They stopped at the threshold of the hallway, and called out several times for defendant to come out with his hands up. They received no response. In the meantime, neither C.R. nor Shannon would divulge any information about the identity of the man who ran back into the house.
Rather than wait for a canine unit to arrive on site, Deputy Miller decided it was safer to clear the house. He and two other officers swept the rooms and eventually located defendant in a bedroom closet. One of the officers, with her firearm drawn, said to defendant, "Show me your hands." Defendant stood in the closet with his hands raised. The officers instructed defendant several times to exit the closet, but he refused to comply. They pulled him from the closet and placed him face down on the floor to handcuff him. Defendant began struggling and resisting the handcuffs.
After eventually handcuffing defendant, Deputy Miller conducted a patdown search of his rear waistband to ensure no weapons were hidden there. While Deputy Miller was rolling defendant up on his side, a loaded semiautomatic handgun fell out of his right pants pocket. In his left pants pocket, Deputy Miller located a large plastic bag with an off-white, crystal-like substance that appeared to be methamphetamine. Later chemical tests confirmed the substance was approximately 32 grams of methamphetamine. Defendant also had $2,700 in $100 bills in his pocket.
While escorting defendant from the bedroom, Deputy Miller advised him that he was being arrested for possession of narcotics and for the firearm. Defendant responded that the "dope" was his, claiming it was for personal use, and that the firearm was not. After being read his Miranda rights, defendant told another officer than he knew he was "screwed" when he opened the door and saw the officers because he knew that he was wanted and that he was carrying methamphetamine.
Miranda v. Arizona (1966) 384 U.S. 436 .
An amended information charged defendant with possession of methamphetamine for sale (Health & Saf. Code, § 11378) and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). It was further alleged that defendant was personally armed with a firearm during the offense (§ 12022, subd. (c)), that he had a prior felony narcotics conviction (Health & Saf. Code, § 11370.2, subd. (c)), that he had three prior strikes (§§ 667, subds. (b)-(i) & 1170.12), and that he had one prison prior. (§ 667.5, subd. (b).)
Defendant moved, pursuant to section 1538.5, to suppress the evidence found during the patdown search. The magistrate heard the suppression motion in conjunction with the preliminary hearing, and denied the motion.
The magistrate concluded that defendant failed to establish any expectation of privacy in the location searched because no evidence showed he was a resident or otherwise associated with the house. He further found that the officers had a legitimate law enforcement reason for going to the property to investigate the stabbing and to follow up on the e-mail tips the department had received complaining about behavior consistent with drug sales and the trash and debris throughout the front yard. Although the tips misidentified the street address, the magistrate found that the officers reasonably concluded the Residence's address was the subject of the e-mail tips given the totality of the circumstances.
The magistrate also concluded that it was reasonable to infer that defendant fled upon seeing the officers speaking to C.R. and Shannon on the front porch since they were clearly identified as law enforcement on the raid vests they were wearing. He found Deputy Miller acted reasonably by putting his foot forward when defendant tried to slam the door shut and run away after refusing to answer the officer's legitimate questions. Defendant's furtive and evasive conduct, together with the prior stabbing at the house and information regarding suspected narcotics activity presented an exigency justifying the officer's entry into the home to ensure their safety and the safety of the others present at the scene.
Defendant, in the magistrate's view, was subject to arrest when he resisted and obstructed the officers from exercising their official duties by refusing to comply with their orders to come out of the closet where he was found hiding and when he later struggled against being handcuffed. Once the gun fell out of defendant's pocket, it was in plain view and could be seized. The officers were also justified in conducting a patdown search at that point. The magistrate noted that the officers would have inevitably discovered defendant was a three-time convicted felon who was prohibited from possessing the firearm, which would have also made him subject to arrest. Any statements defendant made to Deputy Miller were spontaneous and not the result of any police interrogation.
The magistrate ultimately denied the motion to suppress the firearm, the methamphetamine, the $2,700 in cash, and defendant's spontaneous statement that the "dope" was his but the firearm was not. Defendant was held to answer.
Defendant later renewed the suppression motion, pursuant to section 995, before the trial court. After reviewing the preliminary hearing transcript, the trial court found substantial evidence supported the magistrate's finding; it denied the renewed motion to suppress, concluding that defendant lacked standing to suppress the evidence based on the warrantless entry into the home.
After the trial court denied the renewed suppression motion, defendant agreed to plead no contest to both counts and admitted one strike prior. The remaining allegations were dismissed. Defendant was sentenced to state prison for six years, consisting of a three-year upper term for the drug possession conviction, doubled to six years for the strike prior, and a concurrent three-year term, doubled to six years, for the felon in possession of a firearm offense. While imposing various fees and fines, the court asked the clerk for defendant's "credits," and the clerk responded, "234 raw." He was given 234 days of actual presentence custody credit, but no presentence conduct credit. Defendant timely appealed.
DISCUSSION
I
Motion to Suppress
Defendant contends his motion to suppress was twice improperly denied because the contraband and any incriminating statements were discovered or made only after he was unlawfully detained and searched in violation of the Fourth Amendment. His challenge is two-fold. He contends he was illegally detained by Deputy Miller because, under the totality of the circumstances, insufficient evidence showed that the deputy had a reasonable suspicion, based upon articulable facts, that he was involved in criminal activity. He further argues that the officers' warrantless entry into the home was unreasonable because no exception to the Fourth Amendment's warrant requirement existed. We disagree.
A. Standard and Scope of Review
A criminal defendant may challenge the reasonableness of a search or seizure by moving to suppress evidence at a preliminary hearing like defendant did here. (People v. McDonald (2006) 137 Cal.App.4th 521, 528 (McDonald); § 1538.5, subd. (f)(1).) If unsuccessful, he may raise the issue again before the superior court via a section 995 motion. (McDonald, supra, at p. 529; § 1538.5, subd. (m).) In a section 995 proceeding, "[t]he superior court merely reviews the evidence; it does not substitute its judgment on the weight of the evidence nor does it resolve factual conflicts." (McDonald, supra, at p. 529.)
On appeal from the section 995 ruling, we review the magistrate's determination at the preliminary hearing. (McDonald, supra, 137 Cal.App.4th at p. 529; see People v. Laiwa (1983) 34 Cal.3d 711, 718 [on appeal from section 995 review of denial of a motion to suppress, "the appellate court in effect disregards the ruling of the superior court and directly reviews" the magistrate's determination holding the defendant to answer], superseded by statute on other grounds as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223.) "We must draw all presumptions in favor of the magistrate's factual determinations, and we must uphold the magistrate's express or implied findings if they are supported by substantial evidence. [Citations.]" (McDonald, supra, at p. 529.) "We judge the legality of the search by 'measur[ing] the facts, as found by the trier, against the constitutional standard of reasonableness.' [Citation.]" (Ibid.) We exercise our independent judgment to determine whether, on the facts so found, the search or seizure was reasonable. (Ibid.)
"We may sustain the trial court's decision without embracing its reasoning." (McDonald, supra, 137 Cal.App.4th at p. 529, original italics.) Thus, we may affirm the ruling on defendant's motion to suppress if it is correct on any theory of the law applicable to the case, even if the ruling is based on an incorrect reason. (Ibid. [citing People v. Smithey (1999) 20 Cal.4th 936, 972].)
B. Fourth Amendment Principles
There are generally three types of police contact with persons, only two of which implicate the Fourth Amendment of the United States Constitution. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1237 (Frank V.).) That amendment guarantees the freedom from unreasonable searches and seizures. (U.S. Const., 4th Amend.)
The first type of contact " 'is referred to as a "consensual encounter" in which there is no restraint on the person's liberty. There need be no objective justification for such an encounter. The second type, called "detention," involves a seizure of the individual for a limited duration and for limited purposes. A constitutionally acceptable detention can occur "if there is an articulable suspicion that a person has committed or is about to commit a crime." The third type involves seizures in the nature of an arrest, which may occur only if the police have probable cause to arrest the person for a crime. [Citations.]' " (Frank V., supra, 233 Cal.App.3d at p. 1237.)
"[T]o determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." (Florida v. Bostick (1991) 501 U.S. 429, 439 [115 L.E.2d 389, 401-402].) Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer's display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer's request might be compelled. (United States v. Mendenhall (1980) 446 U.S. 544, 554 [64 L.Ed.2d 497, 509].)
We must decide where on the spectrum defendant's contact with Deputy Miller falls, keeping in mind that while police contact may be consensual initially it may later escalate into a detention or an arrest depending on the circumstances. With these concepts in mind, we examine defendant's encounter with police.
C. Defendant's Initial Encounter with Police
Defendant first contacted Deputy Miller after defendant voluntarily opened the front door, poked his head out, and saw the officers speaking with C.R. and Shannon on the porch. Upon seeing defendant open the door, Deputy Miller asked him his name, whether he resided there, and if he was on probation or parole. Defendant did not respond to any of the questions. He tried to slam the door on the officers and fled into the interior of the home.
We note at the outset that these initial questions posed at the front door of the residence did not amount to a detention under the Fourth Amendment. Officers may approach individuals in a public place and ask questions without implicating the Fourth Amendment. (People v. Rivera (2007) 41 Cal.4th 304, 309.) This includes questions posed "at the doorway of a home." (Ibid.)
"The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty, does a seizure occur. [Citations.]" (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
Defendant himself identifies the point of the unlawful detention as when he tried to slam the door and flee and the officers pursued him into the house. We agree that when the officers pursued defendant into the residence, ordered him to stop several times, instructed him to come out with his hands up, and eventually pulled him from the closet that defendant was detained within the meaning of the Fourth Amendment. The act of commanding defendant to stop and come out from hiding, and then pulling him from the closet at gunpoint conveyed a sufficient degree of authority over him to constitute a detention. (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 [20 L.Ed.2d 889, 904-905] (Terry) [a seizure occurs whenever a police officer "by means of physical force or show of authority" restrains the liberty of a person to walk away].)
D. Defendant's Conduct and the Totality of the Surrounding Circumstances Justified His Detention
Having concluded defendant was detained by Deputy Miller, we must decide whether defendant's conduct, in light of all the surrounding circumstances, justified the pursuit and detention as the trial court so found. We find that it did.
A suspect may be detained if an officer has a reasonable suspicion that criminal activity is afoot and that the suspect is connected with it. (Terry, supra, 392 U.S. at p. 30.) In determining whether a detention was justified, reviewing courts " 'must look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. [Citation.] This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about cumulative information available to them that "might well elude an untrained person.' " (People v. Osborne (2009) 175 Cal.App.4th 1052, 1058.) Applying this standard, we find Deputy Miller's detention of defendant was more than reasonable.
A defendant's flight in response to the appearance of uniformed officers ordinarily is behavior that police may legitimately regard as suspicious. (People v. Souza (1994) 9 Cal.4th 224, 227 (Souza).) Indeed, such evasive conduct "can be a key factor in establishing reasonable cause to detain in a particular case." (Ibid.) In so holding, our Supreme Court recognized that "[t]here is an appreciable difference between declining to answer a police officer's questions during a street encounter and fleeing at the first sight of a uniformed police officer." (Id. at p. 234.) "Because the latter shows not only unwillingness to partake in questioning but also unwillingness to be observed and possibly identified, it is a much stronger indicator of consciousness of guilt." (Id. at pp. 234-235; see also Illinois v. Wardlow (2000) 528 U.S. 119, 124 [145 L.Ed.2d 570, 576] ["Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such"].)
Here, defendant fled almost immediately after opening the front door and seeing the officers. The magistrate inferred that defendant recognized Deputy Miller and the other officers as law enforcement given their clothing. Substantial evidence supports the inference. Deputy Miller testified that the officers were easily recognizable as members of law enforcement because they were wearing vests that identified them as sheriffs' deputies and probation officers. The identifying words were on the front and back of their vests.
While it is true that flight from the police alone is not necessarily indicative of involvement in criminal conduct (Souza, supra, 9 Cal.4th at p. 239), when considered with other facts known to Deputy Miller, an officer with several years of police experience in that precise neighborhood, the deputy could reasonably infer defendant's flight was the result of defendant's involvement in some sort of criminal activity. (Ibid. [flight plus other factors may suggest to a trained officer that a fleeing person is involved in criminal activity sufficient to warrant a brief investigatory detention].)
The sheriff's department had received two e-mail tips about a property in the vicinity of the home, one of which complained of possible drug sales. Defendant argues the anonymous tips were not reliable, but "[e]ven if acting on an anonymous, uncorroborated tip, police may knock on the door of a residence, [and] speak with the occupant." (People v. Rivera, supra, 41 Cal.4th at p. 308.)
In any event, Deputy Miller testified about the investigative steps law enforcement took to corroborate the tips to ensure that the Residence was actually the house referred to in the tips. One of the addresses given, which only differed from the Residence's address by a single digit, could immediately be ruled out because it was a nonexistent address. Officers also met with the individual in the attached duplex to eliminate that address as the possible residence. They also based their conclusion on previous contacts they had had at the Residence, including the numerous people that had been contacted at the house that were on probation or parole for narcotics offenses.
One tip complained about heavy foot traffic to and from the house, which the tipster believed indicated possible drug sales at the home. Courts have recognized that heavy foot traffic can be indicative of narcotics sales. (See, e.g., People v. Kershaw (1983) 147 Cal.App.3d 750, 759 [frequent brief visits to a residence by numerous people is indicative of narcotics activity].) A stabbing had also occurred in front of that property the week prior, and a suspect had yet to be apprehended. Deputy Miller in fact testified that he was aware of "prior incidences of violence" at the Residence, the stabbing being the most recent. An area's reputation for criminal activity is also an appropriate factor to consider in assessing whether an investigative detention is reasonable under the Fourth Amendment. (Souza, supra, 9 Cal.4th at p. 240.)
From growing up in and working many years patrolling the neighborhood, Deputy Miller was also intimately familiar with the area and with the particular Residence. He had often seen trash and debris in the front yard as described in one of the e-mail tips. He had also contacted numerous people on probation and parole at the residence who were required to register for prior narcotics offenses. From such facts, it was reasonable to infer that narcotics activity may have been occurring there, especially given the e-mail tip describing the constant foot traffic. (People v. Kershaw, supra, 147 Cal.App.3d at p. 759 [heavy foot traffic indicative of narcotics activity].)
Deputy Miller also testified that defendant's reaction, including his shocked look upon seeing the officers, was another factor that contributed to his suspicion that defendant may have been involved in some type of criminal activity. More particularly, defendant's surprised facial expressions suggested that he may have fled to discard narcotics. This suspicion was reasonable. (People v. Magee (2011) 194 Cal.App.4th 178, 180-181 (Magee) [defendant who avoided approaching police by entering the home of a friend was found to be flushing narcotics down the toilet].)
" '[C]ircumstances and conduct which would not excite the suspicion of the man on the street,' " moreover, " 'might be highly significant to an officer who had had extensive training and experience.' " (Frank V., supra, 233 Cal.App.3d at p. 1240.) For reasonable suspicion determinations, officers may "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.' " (United States v. Arvizu (2002) 534 U.S. 266, 273 [151 L.Ed.2d 740, 749].)
Deputy Miller was also reasonably concerned for his as well as the other officers' safety. In People v. Glaser (1995) 11 Cal.4th 354, 359-360, our Supreme Court held that an officer may justifiably detain an unknown person who arrives at a house being searched to determine the person's identity and connection to the premises and to protect the officers' own safety. Glaser also recognized that firearms or other weapons are often considered "tools of the trade" where narcotics are involved. (Id. at pp. 367-368.)
Here, Deputy Miller could see defendant take off running before the door began to close. Defendant then disappeared from sight down a hallway. He refused to show himself after the officers repeatedly asked him to come out. Deputy Miller had no idea who defendant was since defendant refused to identify himself and neither C.R. nor Shannon would tell the officers any information about him. Deputy Miller knew a stabbing had recently occurred at the residence and that drug sales were reportedly taking place there. His safety concerns of losing sight of an unknown individual who had fled upon seeing him, perhaps to retrieve a weapon, were reasonable.
Based on the totality of the circumstances, including defendant's presence at the residence which was the subject of the e-mail tip regarding potential drug sales as well as the site of a prior stabbing where the suspect had not yet been apprehended, his furtive demeanor, refusal to answer questions about his identity and status, and his almost immediate flight upon seeing the officers, Deputy Miller had reasonable articulable suspicion to temporarily detain defendant by pursing him into the residence and locating him in a closet.
In Terry, the Supreme Court held that an officer has authority to conduct a reasonable search for weapons where that officer has reason to believe a suspect is armed and dangerous, regardless of whether he had probable cause to arrest the individual for a crime. (Terry, supra, 392 U.S. at p. 27.) Further, the officer need not be absolutely certain that the individual is armed; the test is whether a reasonably prudent person in the totality of the circumstances would be warranted in the belief that his or her safety was in danger. (Ibid.)
For the same reasons discussed above, we conclude Deputy Miller reasonably conducted a patdown search of defendant after he resisted being removed from the closet. While conducting the search, a loaded firearm fell out of defendant's front pocket. At that point, the officers were clearly justified in conducting a further patdown search of defendant for other weapons.
During that search, officers located the methamphetamine and cash in defendant's pocket. Upon locating the contraband, the officers could properly seize the items. "[I]f contraband is found while performing a permissible Terry search, the officer cannot be expected to ignore the contraband." (People v. Avila (1997) 58 Cal.App.4th 1069, 1075.)
And, as the magistrate recognized, once defendant resisted the officers by refusing to come out of the closet and by struggling to prevent them from detaining him, the officers had probable cause to believe defendant had committed a crime. (§ 148 [resisting, delaying or obstructing officer in discharge of duty].) When an officer has probable cause to arrest a person, a warrantless search becomes justified as a search incident to arrest. (People v. Avila, supra, 58 Cal.App.4th at p. 1075.) The "search incident to arrest rule" generally applies to the arrestee's person and the area within his immediate control, such as the pockets of defendant's pants, because those areas serve as possible sources of concealed weapons or other evidentiary items. (People v. Flores (1979) 100 Cal.App.3d 221, 230.)
Based on the totality of the circumstances, Deputy Miller reasonably detained defendant and searched him for weapons. Upon locating a loaded firearm, Deputy Miller properly searched defendant and confiscated the methamphetamine and cash. Following his lawful arrest, defendant volunteered that the drugs were his but the gun was not. All of the evidence and defendant's statements were admissible. (People v. Ray (1996) 13 Cal.4th 313, 337 ["Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence"].)
E. Defendant Failed to Establish a Reasonable Expectation of Privacy in the Residence Sufficient to Challenge the Warrantless Entry
Defendant tries to bolster his detention claim by arguing that the officers' "warrantless, uninvited entry" into the home violated the Fourth Amendment's warrant requirement. We are not persuaded.
"It is axiomatic that the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' [Citation.]" (Welsh v. Wisconsin (1984) 466 U.S. 740, 748 [80 L.Ed.2d 732, 742].) "[W]arrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." (Mincey v. Arizona (1978) 437 U.S. 385, 393-394 [57 L.Ed.2d 290, 301].)
Yet it is beyond dispute that "Fourth Amendment rights are personal and may be asserted only by someone whose own rights have been violated." (Magee, supra, 194 Cal.App.4th at p. 184.) Thus, even if we assume, without deciding, that the officers' warrantless entry violated the Fourth Amendment rights of C.R. and Shannon R., the residents of the home, defendant could only seek to suppress the evidence if the officers' entry also violated his Fourth Amendment rights. (Ibid.) That, he did not show. (Magee, supra, at p. 185 [a defendant has the "burden of establishing he had a reasonable expectation of privacy at the time of the warrantless entry"].)
"In determining whether a defendant has a legitimate expectation of privacy in searched premises, '[t]he pertinent factors to consider include whether the defendant has a property or possessory interest in the thing seized or the place searched; whether he has the right to exclude others from that place; whether he has exhibited a subjective expectation that the place would remain free from governmental invasion; whether he took normal precautions to maintain his privacy; and whether he was legitimately on the premises. [Citations.]' [Citation.]" (People v. Stewart (2003) 113 Cal.App.4th 242, 250.) While none of these factors alone sufficiently establishes a third party's legitimate expectation of privacy in the premises of another, "the greater the number of these factors and the greater the strength shown by the facts of a particular case, the more likely a protectable expectation of privacy will be found." (People v. Koury (1989) 214 Cal.App.3d 676, 686.)
In this case, we agree with the magistrate's conclusion that defendant failed to show a reasonable expectation of privacy in the location searched. Besides being found in the home, no evidence was introduced regarding defendant's connection with the residence. Neither C.R. nor Shannon would tell the officers defendant's identity or his connection, if any, to the home. When Deputy Miller asked defendant whether he lived there he did not respond. And the records check Deputy Miller conducted prior to knocking on the door identified someone other than defendant as living in the house.
The record is devoid of any evidence showing whether defendant was an owner, a renter, an overnight guest, or merely a person that happened to arrive shortly before officers knocked on the door. (See, e.g., Minnesota v. Olson (1990) 495 U.S. 91, 96-97 [109 L.Ed.2d 85, 93] [status as overnight guest is sufficient to show a defendant had a reasonable expectation of privacy in the host's home]; Minnesota v. Carter (1998) 525 U.S. 83, 90-91 [142 L.Ed.2d 373, 380-381] [a person who briefly visits another's apartment solely for the purpose of engaging in a business transaction—packaging cocaine—had no legitimate expectation of privacy in the apartment].)
Defendant's characterization of himself as an "occupant" of the home is unavailing. That defendant happened to be inside the house when officers arrived does not mean he had a reasonable expectation of privacy in the residence. Such an expectation must be grounded in " ' "a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." ' " (People v. Stewart, supra, 113 Cal.App.4th at p. 250, original italics.) Presence alone when officers arrived is insufficient.
Based on the totality of the circumstances, we conclude that pursuing defendant into the home to detain him after he fled at the first sight of the officers was reasonable. Defendant, moreover, failed to establish any legitimate personal expectation of privacy in the home sufficient to object to the warrantless entry of the residence. The magistrate and the trial court therefore properly denied defendant's motion to suppress.
II
Presentence Conduct Credits
Defendant contends the court erred in failing to award him any presentence conduct credits pursuant to section 4019. The People concede that defendant appears to be entitled to such credits, and request a limited remand to the trial court for a proper computation of presentence custody credits. We agree a limited remand is appropriate under the circumstances.
"In general, a defendant receives what are commonly known as conduct credits towards his term of imprisonment for good behavior and willingness to work during time served prior to commencement of sentence." (People v. Thomas (1999) 21 Cal.4th 1122, 1125.) Section 4019 specifies the rate at which conduct credits can be earned by those in local custody before sentencing. Under section 4019, prisoners are entitled to good behavior and work time credit for time spent in local custody, "unless it appears by the record that the prisoner has not satisfactorily complied with . . . [jail] rules and regulations" (§ 4019, subd. (c)), or "the prisoner has refused to satisfactorily perform labor as assigned." (§ 4019, subd. (b).)
In this case, defendant was awarded 234 days of actual presentence custody credit, and no conduct credit. At the sentencing hearing, the court asked the clerk for defendant's "credits," and the clerk responded, "234 raw." The court then awarded 234 days of actual presentence custody credit but no presentence conduct credit. Although the minute order states, "per judge, [defendant is] not eligible for half time credits," it does not appear from the transcript that conduct credits were ever discussed during the sentencing hearing or that the judge ever ruled that defendant was not eligible for conduct credits. The minute order itself includes no further explanation.
A trial court has the obligation to calculate the number of credit days to which a defendant is entitled and to include the same in the abstract of judgment. (§§ 2900.5, subd. (d), 4019.) "[B]fore a sentencing court may withhold conduct credits, the defendant is entitled to prior notice and an opportunity to (1) rebut the findings of his jail violations, and (2) present any mitigating factors. (People v. Duesler (1988) 203 Cal.App.3d 273, 277.)
It is apparent from the record that the court did not fulfill its statutory obligation to ascertain the appropriate amount of presentence conduct credits, if any, to which defendant was entitled. (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 9 ["it is the duty of the trial court to award the correct amount of credits"]; § 1237.1 [precluding an appeal where the sole issue is the erroneous calculation of credits unless the defendant first moves for correction of the record in the trial court; trial court retains jurisdiction after notice of appeal to correct any error in the calculation of presentence custody credits upon the defendant's request for correction].) We therefore remand the matter to the trial court for the limited purpose of calculating on the record defendant's entitlement, if any, to presentence conduct credits under section 4019. (People v. Kennedy (2012) 209 Cal.App.4th 385, 394 [determination of whether a defendant is entitled to additional credit for labor and good behavior under section 4019 often involves factual determinations more properly resolved in trial court].)
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court for a computation on the record of presentence conduct credits under section 4019, if appropriate. If the court determines conduct credits are warranted, the court is directed to prepare an amended abstract of judgment that reflects the appropriate amount of conduct credits under section 4019 and is further directed to forward a certified copy of the amended abstract of judgment to the Department of Rehabilitation and Corrections.
NICHOLSON, J. We concur: RAYE, P. J. RENNER, J.