Opinion
F070435
05-31-2017
THE PEOPLE, Plaintiff and Respondent, v. SIMON PETER DANIELS, Defendant and Appellant.
Tutti Hacking, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF153360A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Colette M. Humphrey, Judges. Tutti Hacking, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
Judge Bush presided over the motions; Judge Humphrey presided over the sentencing. --------
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After his motions challenging searches and seizures of evidence were denied, defendant negotiated a plea agreement pursuant to which he pled no contest to one count of resisting arrest by force or violence, with a gang enhancement, and one count of possession of cocaine base for sale. He was sentenced to the midterm of two years on the resisting arrest count, with two years for the enhancement; he was given a concurrent midterm sentence of four years on the drug possession count. Defendant appeals, seeking review of the denial of his motions to suppress evidence, the denial of his motion to traverse and quash a search warrant, and the partial denial of his motion seeking disclosure of police officer personnel records. He also challenges the four-year sentence on the drug possession count. We modify the sentence on the drug possession count, and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Officers Vaughan and Dunn were on patrol on February 14, 2014, about 10:00 p.m., in uniform and in a marked police vehicle. Their vehicle stopped at a red light next to a white Chevrolet Malibu. When the light turned green, the Malibu waited approximately 10 seconds before proceeding; the driver appeared to be avoiding eye contact with Officer Vaughan. When the Malibu proceeded, the police car followed in the adjacent lane. The Malibu drifted across the line into the police car's lane of traffic, then, after Officer Vaughan braked to avoid it, quickly jerked back into its own lane. Based on Vehicle Code violations and the belief the driver might be under the influence of alcohol or some other substance, the officers initiated a traffic stop.
When Officer Vaughan contacted the driver (defendant), he observed defendant had dilated pupils and bruxism of the jaw, which are symptoms of use of a central nervous system stimulant. Defendant failed to produce a driver's license or other identification when asked. Defendant provided his name and date of birth, but the officers were unable to verify that information because their computer system was down. Officer Vaughan asked defendant to step out of the vehicle, and defendant complied. The officer patsearched defendant with his consent, but found nothing. Officer Vaughan then briefly, but unsuccessfully, checked the car for a driver's license or other identification. While Officer Vaughan searched the vehicle, defendant was seated on the curb to the rear of his car, but was not handcuffed.
Officer Vaughan then asked defendant if he had his identification in his socks, because it is not uncommon for subjects to conceal their identities by placing their identification in their socks. Defendant said no. Officer Vaughan asked defendant if he would mind lifting his pant legs so the officer could verify that information. Defendant reached down and pulled up both pant legs, exposing his shoes, ankles, and the upper portion of his socks. Officer Vaughan observed a bulge in one sock. Defendant's eyes widened; he removed the object from his sock, stood up, and attempted to put the object in his mouth. The object was a plastic bindle that appeared to contain numerous other bindles of a white powdery substance. Based on his observations, Officer Vaughan believed the bindles contained cocaine or a similar narcotic.
Officer Dunn used a control hold to prevent defendant from swallowing the bindles. Defendant pushed Officer Vaughan in the chest, causing him to lose his balance. Defendant continued to struggle with the officers; at one point, defendant broke free, ran past the officers, grabbed the keys off the hood of the car, jumped inside and tried to flee in the car. The officers attempted to prevent defendant from putting the car in drive, but he managed to put it in reverse and tried to drive off while Officer Vaughan was inside and Officer Dunn was hanging outside the car. The officers were finally able to pull defendant from the vehicle. It took six officers to subdue him.
After defendant was taken into custody, the officers located bindles of suspected cocaine where they had been scattered—some where defendant had attempted to put them in his mouth, some inside the car, and some outside the car. They also found six tablets of suspected ecstasy. Officers searched defendant's car and found on the front seat a cellular telephone (cell phone), which Officer Vaughan searched; he believed the drugs found were possessed for sale, and it is common for those who sell narcotics to discuss their transactions by cell phone. He found text messages consistent with narcotics sales, as well as gang-related messages. Officer Vaughan subsequently obtained a search warrant authorizing the download of the text messages from defendant's cell phone.
Defendant filed a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)), seeking personnel records of Officer Vaughan relating to false statements, acts of moral turpitude, and use of excessive force. The trial court conducted an in camera hearing, and denied the motion in part and granted it in part, subject to a protective order.
Defendant filed a motion to set aside the gang enhancements alleged in connection with each count of the information. The motion was denied. Defendant filed a motion to suppress all evidence acquired after Officer Vaughan asked him to lift his pant legs, asserting he was unlawfully detained and lifting his pant legs in response to that request constituted an unlawful search; defendant contended all subsequently discovered evidence was fruit of the poisonous tree and was required to be excluded. That motion was denied. Defendant filed a supplemental motion to suppress evidence, seeking exclusion of evidence obtained as a result of the warrantless search of defendant's cell phone. He also filed a motion to traverse and quash the search warrant that authorized the search and downloading of the contents of defendant's cell phone. The trial court denied both motions.
The parties then agreed to a negotiated plea. Defendant agreed to plead no contest to count 1, resisting arrest by force or violence (Pen. Code, § 69), with a midterm sentence of two years, and a two-year gang enhancement (Pen. Code, § 186.22, subd. (b)(1)), and to count 4, possession of cocaine base for sale (Health & Saf. Code, § 11351.5) with a lower term three-year concurrent sentence. The trial court accepted the plea; it sentenced defendant in conformity with the plea agreement, except that it sentenced him to a midterm four-year concurrent sentence on count 4.
Defendant appeals, seeking review of his sentence on count 4 and the rulings on the motion and supplemental motion to suppress, the motion to traverse and quash the search warrant, and the Pitchess motion.
DISCUSSION
I. Sentencing Error
Defendant first contends the trial court erred in sentencing him on count 4, possession of cocaine base for sale (Health & Saf. Code, § 11351.5). Pursuant to the parties' plea agreement, defendant pled no contest to that count in exchange for a low term three-year sentence, to be served concurrently with the four-year term imposed on count 1 and its enhancement. Instead, the trial court sentenced defendant on count 4 to a midterm of four years, concurrent with the four-year sentence on count 1 and its enhancement. The People concede this error.
Defendant also contends, however, that he should be granted the benefit of an amendment to Health and Safety Code section 11351.5, which took effect after defendant's sentencing, and which reduced the three sentencing options for violation of that section. Prior to January 1, 2015, a violation of Health and Safety Code section 11351.5 was punishable by three, four, or five years in custody. (Health & Saf. Code, former § 11351.5; Stats. 2011, ch. 15, § 153.) Effective January 1, 2015, the section was amended to reduce the punishment to two, three, or four years in custody. (Stats. 2014, ch. 749, § 3.) The Legislature explained "that cocaine hydrochloride (powder cocaine) and cocaine base (crack cocaine) are two forms of the same drug, the effects of which on the human body are so similar that to mete out unequal punishment for the same crime (e.g., possession for sale of a particular form of cocaine), is wholly and cruelly unjust." (Stats. 2014, ch. 749, § 2, subd. (a).) It expressed its intent that, in determining criminal penalties, the two forms of cocaine "shall be treated in an identical manner." (Stats. 2014, ch. 749, § 2, subd. (b).)
Defendant was sentenced on October 7, 2014, while the prior version of the statute was still in effect. He agreed to a sentence of the low term of three years. On January 1, 2015, however, the low term became two years. Defendant contends the amended version of the statute should apply retroactively to his case, which was not yet final at the time the amendment took effect, and his sentence on count 4 should be two years.
"If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies." (In re Estrada (1965) 63 Cal.2d 740, 744 (Estrada).) "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. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." (Id. at p. 745.) In the absence of a savings clause making the old law applicable to offenses committed prior to the amendment, when an amendment to a statute mitigates punishment, only the new law can apply. (Id. at pp. 746-748.)
In People v. Keith (2015) 235 Cal.App.4th 983 (Keith), the defendant was convicted by a jury of a violation of Health and Safety Code section 11351.5 committed prior to the January 1, 2015, amendment. When asked to brief the issue of application of the amended statute, the parties agreed that, pursuant to Estrada, the amended statute applied. (Keith, at p. 985.) The amendment mitigated the punishment, there was no savings clause, and the judgment against the defendant was not yet final. (Ibid.) The defendant had been sentenced to five years under the old statute, and his case was remanded for resentencing. (Id. at pp. 984, 986.)
Keith is distinguishable from the current case because it involved conviction by a jury and sentencing by the trial court. In the case before us, defendant was convicted and sentence was imposed pursuant to a plea agreement. In People v. Enlow (1998) 64 Cal.App.4th 850 (Enlow), the court addressed a challenge to a sentence imposed pursuant to a plea agreement. The defendant pled guilty to an automobile theft he had committed in 1995 and admitted having a prior automobile theft conviction. (Id. at pp. 852-853.) In exchange for his plea, the prosecutor dismissed numerous other counts and enhancements. As agreed, the trial court sentenced the defendant to an eight-year term, reflecting the middle term of four years for a recidivist automobile thief, doubled because of the defendant's prior strike conviction. (Id. at p. 853.) On appeal, the defendant sought a two-year reduction in his sentence, based on a statutory amendment that reduced the punishment effective January 1, 1997, before the judgment in the defendant's case became final. (Ibid.)
The court concluded it could not review the defendant's sentence because he had not obtained a certificate of probable cause, but even if it could review his sentence, the court would not reduce it because it was entered pursuant to a plea agreement. (Enlow, supra, 64 Cal.App.4th at p. 854.) " 'Critical to plea bargaining is the concept of reciprocal benefits. When either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from the concessions made.' " (Ibid.) The court concluded: "Since the prison term was specifically negotiated by the parties, a reduction in the term would deprive the prosecution of one of the benefits for which it had bargained, i.e., an eight-year prison term. Enlow is not entitled to retain the benefit of the agreement (the dismissal of numerous other counts) while depriving the prosecution of its benefit (the eight-year term). Therefore, it would be improper for us to reduce the sentence. Enlow's remedy would be to seek withdrawal of his guilty plea." (Ibid.)
Further, the defendant was not entitled to the benefit of the 1997 sentence reduction. The 1993 version of the statute increased the penalties for recidivist automobile thieves, but contained a sunset provision repealing the increased penalties as of January 1, 1997. (Enlow, supra, 64 Cal.App.4th at p. 855.) The court concluded the legislative intent behind the statute was that all persons who committed automobile thefts during the period of increased penalties were to be punished pursuant to the version of the statute containing the increased penalties. (Id. at p. 858.)
A negotiated plea bargain is an agreement between the defendant and the prosecutor; if approved by the trial court, the agreement binds both the parties and the court. (People v. Segura (2008) 44 Cal.4th 921, 930 (Segura).) "Because a 'negotiated plea agreement is a form of contract,' it is interpreted according to general contract principles." (Ibid.) "If the court does not believe the agreed-upon disposition is fair, the court 'need not approve a bargain reached between the prosecution and the defendant, [but] it cannot change that bargain or agreement without the consent of both parties.' " (Id. at p. 931.)
"Although a plea agreement does not divest the court of its inherent sentencing discretion, 'a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain. [Citation.] "A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound." [Citation.] Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly. [Citation.] Once the court has accepted the terms of the negotiated plea, "[it] lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree." ' " (Segura, supra, 44 Cal.4th at p. 931.)
In the case before us, the parties have not agreed to alter the terms of the plea bargain. On count 4, the parties agreed defendant would be sentenced to a three-year concurrent term, which at that time was the low term sentence for that violation. In exchange, the prosecution agreed to dismissal of other charges. To reduce the agreed upon term to a term of two years would deny the prosecution a portion of the benefits for which it bargained. This is not a case like Keith, where the sentence originally imposed was no longer authorized under the amended statute. Nor is it a case in which the trial court considered all the relevant facts, and determined the lower term was the appropriate sentence to impose, after which the Legislature changed the lower term sentence. Here, the parties agreed to a three-year sentence, which was then the lower term sentence. Subsequently, the Legislature changed the three sentencing options, but still authorized a three-year sentence. By imposing the three-year sentence, both parties receive exactly what they negotiated and agreed upon.
Consequently, the sentence on count 4 must be corrected to reflect imposition of the three-year term that was part of the negotiated plea agreement approved by the trial court.
II. Search and Seizure
A. Standard of review
" 'A defendant may move to suppress evidence on the ground that "[t]he search or seizure without a warrant was unreasonable." [Citation.] A warrantless search is presumed to be unreasonable, and the prosecution bears the burden of demonstrating a legal justification for the search.' " (People v. Suff (2014) 58 Cal.4th 1013, 1053.) "In reviewing the trial court's denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling, deferring to those express or implied findings of fact supported by substantial evidence." (People v. Jenkins (2000) 22 Cal.4th 900, 969 (Jenkins).) " ' "In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." ' " (Suff, at p. 1053.)
B. Search under pant legs
"It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is 'per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.' " (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219.) One such exception is consent. (People v. James (1977) 19 Cal.3d 99, 106 (James).) "[T]he People have the burden of proving by a preponderance of the evidence that the defendant's 'manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority.' " (In re D.M.G. (1981) 120 Cal.App.3d 218, 225.) "The voluntariness of the consent is in every case 'a question of fact to be determined in the light of all the circumstances.' " (James, at p. 106.)
In the trial court, the prosecutor argued that defendant lifting his pant legs in response to Officer Vaughan's request was justified as a consent search. The trial court's ruling on consent was ambiguous. It stated: "As far as looking up the pants, I really don't know, to be honest with you. I think that it's—part of me wants to say it's consensual, part of me says, well, how much consent can someone give when you have this particular situation. If it was consensual, everything else flows from it, it's not suppressed. But if it wasn't consensual, if the defendant felt compelled to do so, all the officer did was ask the defendant to lift his legs or his pant legs. He didn't ask him to reach in and grab whatever item it was and stick it in his mouth and try to ... swallow [it] and then try to fight with the officers." The trial court then discussed the events that followed the defendant's attempt to swallow the bindles and possible justifications for seizing the drugs.
The trial court denied the motion to suppress. It made no express finding regarding whether defendant's consent was voluntary. It did not expressly find some other exception to the warrant requirement justified the search under defendant's pant legs. We must view the record in the light most favorable to the trial court's ruling, and accept the implied findings of fact that are supported by substantial evidence. (Jenkins, supra, 22 Cal.4th at p. 969.) We therefore infer the trial court found defendant voluntarily consented to the search under his pant legs.
Defendant contends that raising his pant legs in response to Officer Vaughan's request was not a manifestation of voluntary consent, but a response to an implied assertion of authority during an investigative detention. He contends "the circumstances as a whole—having appellant to exit the vehicle, patsearching him, directing him to sit on the curb, searching his car—all add up to a situation where any reasonable person would believe they were required to do what the officer asked." We disagree.
In James, a woman cleaning an office building in the early hours of the morning observed a man in the building; he threatened her with a knife, stole a television from one of the offices, and threatened to shoot her with a gun in his pocket. (James, supra, 10 Cal.3d at p. 104.) The woman identified the defendant from a photographic line up. (Id. at p. 105.) Officers arrested the defendant at his house and found the stolen television on the premises. (Ibid.) The defendant moved to suppress evidence of the stolen television, asserting it was the product of an illegal search and seizure. (Id. at p. 106.) The People claimed he consented to the search.
The evidence presented in connection with the suppression motion indicated four officers went to the defendant's house at 10:00 p.m., after viewing his photograph and learning a handgun had been used in the robbery and a television had been taken. (James, supra, 19 Cal.3d at p. 106.) When the defendant answered the door, the officers recognized him from his photograph and asked him to step outside, where they arrested and handcuffed him. (Id. at pp. 106-107.) An officer asked if he could look in the house for items taken in the robbery; the defendant said yes. The officer stepped inside and observed the television set, bearing the owner's identification tag. (Id. at p. 107.)
The defendant contended his consent to the search was not voluntary because he was under arrest and handcuffed when it was given. (James, supra, 19 Cal.3d at p. 107.) The court noted that consent induced by an illegal search or arrest is not voluntary. (Id. at p. 109.) Being in lawful custody at the time of giving consent to search, however, is not conclusive in the determination of voluntariness; it is a circumstance to be weighed along with all the other circumstances bearing on the issue. (Id. at pp. 109-110.)
The defendant also emphasized it was 10:00 p.m., the officers did not announce they were police officers, they directed him to come out of the house, and, when he gave consent, he was alone with three armed officers around him. (James, supra, 19 Cal.3d at p. 110.) The defendant contended "his consent was a mere submission to authority because he was 'under the total domination and control of the police' who had 'acted dramatically and forcefully' when they took him into custody." (Ibid.) The court responded: "The California cases which have invalidated findings of consent on this ground, however, have either involved far more coercive circumstances or additional facts such as an illegal arrest or a false claim of authority to search." (Ibid.) It discussed a case in which four officers covered the defendant with shotguns and carbines and turned a spotlight on him as he walked across residential front lawns at 3:00 a.m.; in another case, one officer held the defendant and his companions at gunpoint, while another officer checked a nearby residence for signs of burglary, after which the officers illegally arrested the men for the nonexistent burglary and asked to search their parked car. (Id. at pp. 110-111.) In other cases, "the request for permission to search was accompanied by a claim of the right to proceed regardless of consent." (Id. at pp. 111-112.)
The James court concluded: "In the case at bar the arresting officer neither held defendant at gunpoint, nor unduly detained or interrogated him; the officer did not claim the right to search without permission, nor act as if he intended to enter regardless of defendant's answer.... 'Under these circumstances, to hold as a matter of law that the evidence was produced in response to an unlawful assertion of authority would seriously hamper officers in the reasonable performance of their duties.' " (James, supra, 19 Cal.3d at p. 113.) The court also rejected the defendant's contention his consent was not voluntary because he was not advised he could refuse consent. It is well-established that such advice is not a precondition to a valid consent. "The reason for the rule ... is that 'The mere asking of permission to enter and make a search carries with it the implication that the person can withhold permission for such an entry or search.' " (Id. at p. 116.) "[W]hen a person of normal intelligence is expressly asked to give his consent to a search of his premises, he will reasonably infer he has the option of withholding that consent if he chooses." (Ibid.) The rule applies even when the person is in custody at the time of giving consent. (Ibid.) The court concluded the record contained substantial evidence to support the implied finding of voluntary consent, so the evidence was properly admitted at trial. (Id. at p. 118.)
In the case before us, officers stopped defendant's vehicle because of observed traffic violations and a suspicion defendant may have been driving under the influence of alcohol or drugs. Defendant does not challenge the validity of the traffic stop. When asked, defendant was unable to produce a driver's license or any other identification. Officer Vaughan asked defendant to step out of the vehicle. "Once a vehicle has been detained in a valid traffic stop, police officers may order the driver ... out of the car pending completion of the stop without violating the Fourth Amendment." (People v. Lomax (2010) 49 Cal.4th 530, 564.) At some point after defendant exited the vehicle, the officers patsearched him, pursuant to his consent. Officer Vaughan also conducted a brief search of defendant's vehicle, looking for a driver's license or other identification. Defendant does not challenge either of these searches.
While Officer Vaughan searched the vehicle for identification, defendant sat on the curb to the rear of the vehicle. Based on his training and experience that persons attempting to conceal their identities sometimes place their identification in their socks, Officer Vaughan then asked defendant if he had any identification in his socks. When defendant said no, Officer Vaughan asked if defendant would mind lifting his pant legs so he could verify that. There was no evidence contradicting Officer Vaughan's testimony about how the request was phrased. Defendant raised his pant legs.
Officer Vaughan's request was phrased as a request, conveying the idea defendant had the option of complying or refusing. Defendant was not handcuffed. Contrary to defendant's representation, there is no evidence the officers asked or ordered defendant to sit on the curb. There is no evidence either officer had his gun drawn when the request was made (or at any time earlier in the encounter); there is no evidence either officer falsely represented he had a warrant to search defendant's socks, claimed a right to search without defendant's permission, or indicated by his conduct that he intended to search defendant's socks regardless of defendant's response to the request.
We conclude substantial evidence in the record supports the trial court's implied finding that defendant's consent to the search of his socks was voluntarily given. The motion to suppress the evidence found in that search and subsequently as a result of the search was properly denied.
C. Warrantless search of cell phone
After defendant raised his pant legs, exposing a bulge in his sock, he grabbed the object creating the bulge and attempted to put it in his mouth. At that point, Officer Vaughan could see the object was a plastic baggie containing bindles of a white powdery substance. He believed the substance was cocaine or a similar narcotic. Defendant then forcefully and violently resisted the officers' efforts to take him into custody. The officers finally subdued defendant, arrested him, and placed him in handcuffs. They searched defendant's vehicle again and found a cell phone on the front passenger seat. The cell phone did not require a password; Officer Vaughan reviewed the text messages and found messages consistent with narcotics sales, as well as gang-related messages.
Defendant contends the warrantless search of the cell phone was unlawful because, approximately four months after defendant's arrest, the United States Supreme Court issued a decision in Riley v. California (2014) 573 U.S. ___, 134 S.Ct. 2473 (Riley), holding that a search of the contents of a cell phone found on or near the defendant at the time of arrest is not justified as a search incident to the defendant's arrest. Defendant contends the Riley decision applies retroactively; he asserts exclusion of the evidence cannot be avoided on the ground the officers involved in defendant's arrest acted in good faith reliance on then-existing California precedent in conducting the search, because the Riley case was then pending before the United States Supreme Court and therefore the California cases were not binding authority.
"One of the specifically established exceptions to the Fourth Amendment's warrant requirement is 'a search incident to a lawful arrest.' [Citation.] This exception 'has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained.' " (People v. Diaz (2011) 51 Cal.4th 84, 90 (Diaz).) " 'The potential dangers lurking in all custodial arrests make warrantless searches of items within the "immediate control" area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved.' " (Ibid.)
In Diaz, the defendant was arrested after participating in a police informant's controlled purchase of drugs. (Diaz, supra, 51 Cal.4th at pp. 88-89.) He was transported to the sheriff's station, and a cell phone was seized from his person. An officer reviewed the text messages on the cell phone and found a message relating to a drug sale. The defendant subsequently moved to suppress the cell phone evidence, including the text message and the statement he made when confronted with it. (Id. at p. 89.)
The California Supreme Court determined that, pursuant to the search incident to arrest exception to the warrant requirement, a law enforcement officer could not only seize an arrestee's cell phone in connection with the arrest, but could also search the cell phone's contents for evidence of the crime for which the arrestee was arrested, even after the arrestee and the cell phone had been transported to a detention facility. (Diaz, supra, 51 Cal.4th at p. 88.) The court relied on United States Supreme Court precedent, which held "that police making a lawful custodial arrest of a car's occupant 'may, as a contemporaneous incident of that arrest,' 'examine the contents of any containers found within the passenger compartment.' " (Id. at p. 95, citing New York v. Belton (1981) 453 U.S. 454, 460.) The Diaz court rejected the defendant's argument that cell phones should be treated differently from other objects or containers seized from an arrestee, because of the storage capacity of such phones. (Diaz, at pp. 95-96.) It also stated the delay in the search until they arrived at the sheriff's station did not invalidate the search, because "a delayed search of an item of personal property found upon an arrestee's person no more imposes upon the arrestee's constitutionally protected privacy interest than does a search at the time and place of arrest." (Id. at p. 101.) The court held the warrantless search of the defendant's cell phone was valid. (Ibid.)
In People v. Nottoli (2011) 199 Cal.App.4th 531 (Nottoli), an officer stopped the defendant's vehicle for speeding. (Id. at p. 538.) The defendant could not produce a driver's license; the officer learned the defendant's license had expired. (Id. at pp. 538-539.) The defendant displayed symptoms of being under the influence of a controlled substance; the woman in the passenger seat was intoxicated and admitted drinking. (Id. at pp. 538-539.) The officer arrested the defendant for being under the influence and driving with an expired license. (Id. at p. 540.) He decided to have the vehicle towed; in the course of an inventory search, he discovered drug paraphernalia and a handgun. (Id. at pp. 540-541.) The officer found a cell phone in the car; it contained photographs that appeared to depict the defendant holding illegal firearms and text messages relating to marijuana cultivation and sale of illegal incendiary projectiles. (Id. at pp. 541-542.) The trial court granted the defendant's motion to suppress the contents of the cell phone. (Id. at p. 544.)
On appeal, the court held the search of the cell phone was valid as a search incident to arrest. (Nottoli, supra, 199 Cal.App.4th at pp. 553-554.) After reviewing federal precedents, it concluded "that 'when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile' " and " 'may also examine the contents of any containers found within the passenger compartment,' " but only if the recent occupants of the vehicle are unsecured and within reaching distance of the passenger compartment at the time of the search, or "when it is 'reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.' " (Id. at pp. 548-549, 551.)
In Nottoli, the defendant's "arrest for 'being under the influence of a controlled substance' supplied a reasonable basis for believing that evidence 'relevant' to that type of offense might be in his vehicle," including some amount of the controlled substance or drug paraphernalia. (Nottoli, supra, 199 Cal.App.4th at pp. 553, 554.) Because of this, officers had "generalized authority to search the entire passenger compartment of a vehicle and any containers therein incident to arrest." (Id. at p. 555.) That authority was not limited to containers that might conceal the object of the search. (Id. at p. 556.) Even if it were so limited, however, the officer "testified that, in his experience, drug users and sellers use cell phones as their 'main communication' and cell phones can contain text messages related to acquiring and offering drugs," so that standard was met. (Id. at p. 557.) The search of the cell phone was valid and the motion to suppress was erroneously granted. (Id. at pp. 535, 561.)
The Riley decision effectively invalidated Diaz and Nottoli. In Riley, the court reviewed two cases. In the California case, the defendant was stopped for a traffic violation, the officers impounded his car because his license had been suspended, and an inventory search of the car disclosed loaded firearms hidden under the hood. (Riley, supra, 134 S.Ct. at p. 2480.) After arresting the defendant, officers seized a cell phone from the defendant's pants pocket and reviewed its contents, discovering gang related messages and a photograph linking the defendant to a car suspected of being used in a shooting. (Id. at pp. 2480-2481.) The trial court denied the defendant's motion to suppress the cell phone evidence, the appellate court affirmed, and the California Supreme Court denied review. (Id. at p. 2481.) In the second case, a federal case, the defendant was arrested for selling drugs from a car. (Ibid.) At the police station, the defendant's cell phone rang repeatedly; it indicated the source of the call was "my house." Officers used the phone to obtain the phone number associated with "my house," then used the phone number to determine the defendant's address. They obtained a warrant and searched the defendant's apartment, finding drugs, a firearm, and cash. (Ibid.) The district court denied the defendant's motion to suppress, but the First Circuit reversed. (Id. at p. 2482.)
The Riley court reviewed the background and scope of the exception to the warrant requirement for a search incident to an arrest. (Riley, supra, 134 S.Ct. at pp. 2482-2484.) It noted: "we generally determine whether to exempt a given type of search from the warrant requirement 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.' " (Id. at p. 2484.) The governmental interests served by a search incident to arrest are the need to disarm suspects for officer safety and the need to preserve evidence of crime. (Id. at p. 2483.) These justifications do not apply to a search of digital data. (Id. at p. 2485.) "Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape.... Once an officer has secured a phone and eliminated any potential physical threats ... data on the phone can endanger no one." (Ibid.) Further, officers can prevent destruction of evidence by seizing and securing the cell phone while seeking a warrant to search its content. (Id. at p. 2486.)
On the other side of the scale, the individual's privacy interests in the contents of a cell phone are greater than interests in other types of objects and containers that might be found during a search incident to an arrest, because of the "vast quantities of personal information" they contain. (Riley, supra, 134 S.Ct. at p. 2485.) "The search incident to arrest exception rests not only on the heightened government interests at stake in a volatile arrest situation, but also on an arrestee's reduced privacy interests upon being taken into police custody." (Id. at p. 2488.) When an arrestee is taken into custody, " 'the law is in the act of subjecting the body of the accused to its physical dominion.' " (Ibid.) "Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse." (Id. at pp. 2488-2489.) They "differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person," because of their immense storage capacity. (Ibid.) Cell phones are used to store information a person did not ordinarily carry with him prior to the advent of cell phones. That storage capacity vastly increases the possible intrusion on the arrestee's privacy. (Id. at pp. 2489-2490.) Further, the cell phone may provide access to information not stored on the phone itself, but in other storage devices linked to it. (Id. at p. 2491.)
The court held "not that the information on a cell phone is immune from search," but "instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest." (Riley, supra 134 S.Ct. at p. 2493.) The court reversed the judgment in the California case and remanded for further proceedings; it affirmed the First Circuit judgment. (Id. at p. 2495.)
Relying on Griffith v. Kentucky (1987) 479 U.S. 314, defendant contends the Riley decision applies retroactively, and therefore the warrantless search of defendant's cell phone in this case was unlawful, even though it preceded issuance of the Riley decision. In Griffith, the court held that, when the United States Supreme Court declares a new constitutional rule applicable to criminal cases, the rule must be applied to all cases still pending on direct review or not yet final, even if the new rule constitutes a " 'clear break' " with the past. (Griffith, at pp. 326-328.)
Subsequent to the Griffith decision, in Davis v. United States (2011) 564 U.S. 229 (Davis), the Supreme Court explained how this rule of retroactivity applies in cases involving changes in Fourth Amendment search and seizure law. "The Fourth Amendment protects the right to be free from 'unreasonable searches and seizures,' but it is silent about how this right is to be enforced. To supplement the bare text, this Court created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation. The question here is whether to apply this sanction when the police conduct a search in compliance with binding precedent that is later overruled. Because suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety, we hold that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule." (Davis, at pp. 231-232.)
In Davis, the defendant was arrested during a routine traffic stop. Officers handcuffed him and placed him in a patrol vehicle. (Davis, supra, 564 U.S. at p. 235.) They then searched the passenger compartment of the vehicle and discovered a handgun inside the defendant's jacket pocket. He was charged with possession of a firearm by a convicted felon. (Ibid.) The search of the vehicle was conducted pursuant to Belton, which "stressed the need for a 'straightforward,' 'workable rule' to guide police conduct" and stated " 'that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.' " (Davis, at p. 233.) Two years after the search of the defendant's car, the Supreme Court decided Arizona v. Gant (2009) 556 U.S. 332, concluding that Belton authorized a search of the vehicle's passenger compartment incident to the arrest of a recent vehicle occupant only "(1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains 'evidence relevant to the crime of arrest.' " (Davis, at pp. 234-235.)
The Davis court noted that the sole purpose of the exclusionary rule is to deter Fourth Amendment violations. (Davis, supra, 564 U.S. at p. 236.) Use of exclusion as a remedy depends upon the culpability of the law enforcement conduct in issue. (Id. at p. 238.) The court recognized there is a " 'good-faith' exception" to the exclusion remedy. "[W]hen the police act with an objectively 'reasonable good-faith belief' that their conduct is lawful, ... the ' "deterrence rationale loses much of its force," ' and exclusion cannot 'pay its way.' " (Id. at p. 238.) Reasonable reliance on binding judicial precedent fits within the good faith exception. (Id. at pp. 239-241.) The search of the defendant's vehicle followed Belton and the Eleventh Circuit's interpretation of Belton "to the letter," and the officers' conduct was not culpable in any way. (Davis, at p. 239.) "[W]hen binding appellate precedent specifically authorizes a particular police practice, well-trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities. An officer who conducts a search in reliance on binding appellate precedent does no more than ' "ac[t] as a reasonable officer would and should act" ' under the circumstances." (Id. at p. 241.) The court reaffirmed "that the harsh sanction of exclusion 'should not be applied to deter objectively reasonable law enforcement activity.' [Citation.] Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule." (Ibid.)
The Davis court rejected the defendant's argument that giving effect to the good faith exception to the exclusionary rule would deny the retroactivity of the Gant decision, contrary to the holding of Griffith. (Davis, supra, 564 U.S. at p. 243.) "Our retroactivity jurisprudence is concerned with whether, as a categorical matter, a new rule is available on direct review as a potential ground for relief.... Retroactive application does not, however, determine what 'appropriate remedy' (if any) the defendant should obtain.... As a result, the retroactive application of a new rule of substantive Fourth Amendment law raises the question whether a suppression remedy applies; it does not answer that question." (Id. at pp. 243-244.) The court concluded the good faith exception to the exclusionary rule applied, because excluding evidence obtained by officers who " 'scrupulously adhered to governing law' " and conducted their search "in objectively reasonably reliance on binding appellate precedent" would not deter police misconduct or serve the purpose of the exclusionary rule. (Id. at pp. 249-250.)
Diaz and Nottoli constituted binding appellate precedent on February 14, 2014, when the traffic stop and search of the cell phone in this case occurred. Diaz and Nottoli authorized officers, incident to the arrest of the driver or occupant of a vehicle, to search the passenger compartment of the vehicle, if the arrestee was unsecured and within reaching distance of the passenger compartment at the time of the search, or if there was reason to believe evidence relevant to the crime of arrest might be found in the vehicle. During such a search, the officers were authorized to seize a cell phone and search its contents, if it might reasonably contain evidence relevant to the crime for which the arrestee was arrested.
Defendant was arrested after he took what appeared to be a bindle of drugs from his sock and tried to swallow it, then violently resisted officers' efforts to take him into custody. At the time of his arrest, there were suspected drugs scattered inside and outside of defendant's vehicle. There was a cell phone on the seat of the car, and Officer Vaughan testified that, due to the packaging and amounts of the suspected narcotics, he believed defendant possessed the items for sale and it is common for those who sell narcotics to discuss their transactions by cell phone. Thus, he had reason to believe there might be evidence of the narcotics violations for which defendant was arrested on the cell phone. The Diaz and Nottoli decisions authorized the seizure and search of the cell phone conducted in this case.
Although Riley retroactively changed the rules relating to searches of cell phones incident to arrest, under Davis exclusion of the evidence obtained from the cell phone was not required or appropriate if the evidence was obtained in good faith reliance on Diaz and Nottoli, which constituted binding, existing appellate precedent at the time of the search. Defendant argues that Diaz "was never binding appellate precedent." As we understand the argument, he contends it was not binding because the dissent in Diaz asserted the majority's reasoning did not follow federal authority. "But a principle stated in a California Supreme Court opinion is not the opinion of the court unless it is agreed to by at least four of the justices. [Citation.] A dissenting and concurring opinion is not controlling." (In re Marriage of Bryant (2001) 91 Cal.App.4th 789, 795.) Five justices concurred in the majority opinion in Diaz; two justices dissented. The majority opinion, not the dissent, was the binding precedent.
"Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.... Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court." (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In other words, the lower court exceeds its jurisdiction if it refuses to follow the decision of a higher court, based on the lower court's determination that the higher court's decision was wrongly decided. (Id. at pp. 454-455.) Decisions of the California Supreme Court "are binding upon and must be followed by all the state courts of California." (Id. at p. 455.) In the absence of a subsequent contrary decision of the United States Supreme Court, lower California courts are bound by the decisions of the California Supreme Court. (Tanguilig v. Bloomingdale's, Inc. (2016) 5 Cal.App.5th 665, 673.) Thus, until the United States Supreme Court issued its decision in Riley, all the trial and appellate courts in this state were bound to follow Diaz, and all the trial courts were bound to follow Nottoli. It was therefore objectively reasonable for law enforcement officers in this state to be guided by those decisions in conducting searches incident to arrest.
Defendant also argues the Diaz decision "no longer had any binding effect" at the time of the search in this case, because it "was effectively placed on review by the United States Supreme Court when certiorari was granted in Riley" approximately two years prior to the search. If defendant's argument is that law enforcement officers could not reasonably rely in good faith on Diaz and Nottoli once review was granted in the Riley case, we disagree. The decisions in Diaz and Nottoli remained good law until they were overruled or superseded by a contrary decision of the same court or a higher court. The fact that the United States Supreme Court accepted review in the Riley case did not necessarily signal the demise of the principles espoused in Diaz and Nottoli. The United States Supreme Court accepted review of two cases, which it resolved in the Riley decision: a California case in which search of the contents of a cell phone incident to the defendant's arrest was upheld, and a First Circuit federal case in which a similar search was held invalid. Because the two cases accepted for review reached opposite results and it was impossible to know which result the United States Supreme Court would uphold, we cannot say that a reasonable law enforcement officer would have, or should have, concluded that the high court was on the brink of invalidating Diaz and Nottoli, so the officer should not have relied on those cases in conducting cell phone searches.
As discussed in Davis, officers who conduct a search in reliance on binding appellate precedent act reasonably, and "the harsh sanction of exclusion 'should not be applied to deter objectively reasonable law enforcement activity.' " (Davis, supra, 564 U.S. at p. 241.) Viewing the facts surrounding the discovery and warrantless search of defendant's cell phone in the light most favorable to the trial court's ruling, we conclude the good faith exception to the exclusionary rule applied, because the officers conducted their search in objectively reasonable reliance on binding appellate precedent. The trial court did not err in denying defendant's motion to suppress the evidence flowing from the warrantless search of the cell phone.
D. Search warrant for cell phone
Defendant challenges the denial of his motion to traverse and quash the search warrant that authorized the search of the contents of his cell phone. Defendant's motion asserted the search warrant was based on an affidavit of Officer Vaughan, which falsely stated six ecstasy tablets were found in defendant's vehicle, and improperly relied on text messages Officer Vaughan viewed unlawfully when he searched the cell phone without a warrant at the time of defendant's arrest.
"A defendant moving to traverse a warrant 'mount[s] a subfacial challenge, i.e., attack[s] the underlying veracity of statements made on the face of the search warrant application.' " (People v. Heslington (2011) 195 Cal.App.4th 947, 957, fn. 7 (Heslington).) A defendant moving to traverse a search warrant "has the burden of first establishing a sufficient threshold to warrant an evidentiary hearing by demonstrating that there were reckless or deliberate material misstatements of fact in the affidavit for the search warrant. This is a factual showing. The court 'must conduct an evidentiary hearing if a defendant makes a substantial showing that: (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth and (2) the affidavit's remaining contents, after the false statements are excised, are insufficient to justify a finding of probable cause. At the evidentiary hearing, if the statements are proved by a preponderance of the evidence to be false or reckless, they must be considered excised. If the remaining contents of the affidavit are insufficient to establish probable cause, the warrant must be voided and any evidence seized pursuant to that warrant must be suppressed.' " (People v. Thuss (2003) 107 Cal.App.4th 221, 230.)
"A defendant moving to quash a warrant asserts the warrant on its face lacks probable cause." (Heslington, supra, 195 Cal.App.4th at p. 957, fn. 7.) The court applies a totality of the circumstances analysis. (Illinois v. Gates (1983) 462 U.S. 213, 238.) "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... [concluding]' that probable cause existed." (Id. at pp. 238-239.) " 'The magistrate's determination of probable cause is entitled to deferential review.' " (People v. Scott (2011) 52 Cal.4th 452, 483.)
Defendant first contends Officer Vaughan's affidavit "recklessly" included a statement that defendant "violently resisted his arrest after attempting to destroy 4.6 grams of Cocaine HCL, and 6 tablets of Ecstasy." Defendant contends the reference to ecstasy was false, because the parties stipulated at the preliminary hearing that the laboratory result indicated the substance was unidentified; the prosecutor essentially conceded that in oral argument. At the hearing of the motion, before taking the matter under submission, the trial court expressed its intent "at a minimum" to excise the reference to ecstasy from the affidavit. It opined that, even if it excised that reference, there was still enough information in the affidavit to establish probable cause for issuance of the search warrant.
Defendant also contends the affidavit relied on information illegally obtained during the warrantless search of defendant's cell phone and on statements made by defendant in response to questioning about information obtained from the cell phone. After discussing Officer Vaughan's experience and qualifications as a police officer, the affidavit stated that, "[w]hile inspecting his cellular telephone incident to his arrest, [the officer] viewed numerous text messages regarding the illegal sales of narcotics, as well as text messages indicating" defendant's gang membership. Defendant "later admitted to possessing the narcotics for sales on audio recording." Officer Vaughan also stated, based on his training and experience, that persons selling narcotics often communicate about those sales by cell phone and gang members often discuss their activities by cell phone and keep phone numbers for other gang members in their cell phones. Accordingly, he believed the cell phone might contain evidence relevant to defendant's involvement in narcotics sales and participation in gang activity.
Defendant contends the tainted information obtained as a result of the warrantless cell phone search must be excised from the warrant affidavit and, without it, there is insufficient information to support issuance of the warrant. He asserts the trial court "properly found" that both the cell phone evidence and the reference to ecstasy should be excised from the affidavit. The written ruling on the motion did not make any such finding; it simply denied the motion to quash and traverse. The trial court's comments at oral argument do not support defendant's conclusion. At one point, the trial court opined that, if it excised the reference to ecstasy, "which should not have been in there," there would still have been probable cause. The trial court also seemed to say that, if it excised the information from the cell phone, there still would be enough information to issue the search warrant. After further discussion, however, the trial court took the motion under submission and stated it would review the search warrant. "At a minimum, I'm going to excise any reference to Ecstasy because I think that should have been more clearly laid out to the magistrate given that the officer—the lab had come back that it was unknown. Then I'll make a ruling from there." Thus, while the trial court indicated the reference to ecstasy was improper and would be excised, it did not make any express finding regarding whether the cell phone information should be excised; it took the matter under submission for further consideration of that question.
As discussed previously, the information obtained in the warrantless search of the cell phone was not subject to exclusion. Consequently, neither that information nor any evidence gathered as a result of it, such as statements made by defendant, was tainted or required to be excised from the affidavit.
We agree with the trial court that, even if the reference to ecstasy was excised from the affidavit, there was sufficient information to establish probable cause to issue a warrant to search the cell phone for evidence of drug sales and gang activity. The trial court did not err in denying defendant's motion to traverse and quash the search warrant. III. Pitchess Motion
Finally, defendant requests that we review the trial court's ruling on his Pitchess motion, in which he sought disclosure of Officer Vaughan's personnel records to the extent they reflected dishonesty, falsification of evidence or reports, or use of excessive force. Officer Vaughan's employing agency, the Bakersfield Police Department, conceded the trial court should conduct an in camera review of records relating to "false reporting and excessive force." The trial court granted the request for in camera review of records relating to "dishonesty and excessive force." After reviewing the documents produced by the Bakersfield Police Department, the trial court denied defendant's motion in part and granted it in part, subject to a protective order.
The Pitchess motion was codified in Evidence Code sections 1043 and 1045, which "place specific limitations and procedural safeguards on the disclosure of peace officer personnel files" and were "intended to balance the need of criminal defendants to relevant information and the legitimate concerns for confidentiality of police personnel records." (People v. Breaux (1991) 1 Cal.4th 281, 311-312.) The statutes require a showing of good cause for discovery of the requested records and provide guidelines for in camera review to determine which records are to be disclosed. (People v. Hustead (1999) 74 Cal.App.4th 410, 416.) "A motion for discovery of peace officer personnel records is 'addressed solely to the sound discretion of the trial court.' " (Breaux, at p. 311.) Therefore, we review the trial court's ruling for abuse of discretion.
On appeal, the court may conduct an independent review of the transcript of the in camera hearing and the records reviewed by the trial court to determine whether any personnel records were withheld improperly. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232.) We have independently reviewed the sealed records and conclude that no relevant material was improperly withheld. The trial court's ruling, denying the motion in part and granting it in part, was not an abuse of its discretion.
DISPOSITION
The judgment is modified to impose a sentence of three years on count 4, concurrent to the four-year term imposed on count 1 and the gang enhancement, in accordance with the plea agreement. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
LEVY, J. /s/_________
DETJEN, J.