Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F5874
CANTIL-SAKAUYE, J.
A jury found defendant John Arlan Godown not guilty of possession of a controlled substance for sale (Health & Saf. Code, § 11378), but found him guilty of the lesser included offense of simple possession of a controlled substance. (Health & Saf. Code, § 11377.) In bifurcated proceedings, defendant admitted seven prior prison term allegations. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced defendant to three years in state prison for his possession conviction, plus seven one-year terms for the prior prison term allegations, for a total prison term of 10 years. The trial court suspended execution of the sentence and placed defendant on three years’ probation conditioned on, among other things, his successful completion of a drug treatment program through Teen Challenge and payment of a $2,000 restitution fine. The order of probation also includes a 10 percent administrative fee on the restitution fine.
Hereafter, unless otherwise indicated, undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred by (1) denying his motion to suppress, (2) denying his request for Proposition 36 probation, and (3) including an unauthorized administrative fee on the restitution fine. We accept the People’s concession of the last claim, but reject the others. We shall direct the trial court to prepare an amended judgment and sentencing/probation order deleting the 10 percent assessment on the restitution fine, but otherwise affirm the judgment.
FACTUAL BACKGROUND
On July 16, 2008, defendant was on parole. After the Redding parole office received information that defendant had purchased a substantial amount of methamphetamine and had changed his address to a trailer owned by Jeri Stanton, Redding police officers went to the trailer, found and arrested defendant pursuant to section 3056. During a subsequent search of the trailer, officers found four 1-ounce (approximately 28-gram) bags of methamphetamine inside an ammunition can located near the couch where defendant had slept the previous night. The ammunition can also contained various prescription medications bearing defendant’s name, a California Department of Corrections and Rehabilitation card in defendant’s name, a clean glass pipe of the type used to smoke methamphetamine, and a gram scale. No pay and owe sheets were found. Defendant had $725 in his pants pocket when he was arrested.
Section 3056 provides that, “[p]risoners on parole shall remain under the legal custody of the department and shall be subject at any time to be taken back within the inclosure of the prison.”
According to a Redding police investigator, a normal or usual dose of methamphetamine would be one-tenth of a gram. He calculated the methamphetamine seized had a street value of approximately $6,000.
At trial, Stanton testified she had been sexually assaulted in her trailer the previous month. The man who assaulted her left the baggies of methamphetamine and paraphernalia in her home. Defendant came over to her trailer on July 15, 2008, to protect Stanton and to repair the damage to her trailer caused by her assailant. The next day Stanton showed defendant the drugs she had found. Defendant told Stanton they were going to get rid of them and Stanton left the drugs and paraphernalia wrapped in a bandana on the coffee table with the intent of disposing of them. However, when the police arrived a few minutes later, she panicked and stuffed the bandana into defendant’s ammunition can.
DISCUSSION
I. The Trial Court Did Not Err In Denying Defendant’s Motion To Suppress
Defendant moved to suppress the evidence found in the ammunition can in Stanton’s trailer. The People justified the search of defendant’s property as a parole search by a parole officer who knew defendant was on parole. Defendant argued officers could not enter and search a home based on a parole condition unless the home was the parolee’s residence.
The trial court denied defendant’s motion. The court indicated its view that defendant “either was or he wasn’t living [at the trailer]. If he wasn’t living there, he had no standing. If he was living there, he’s subject to search. In either scenario, he is searchable.”
Defendant claims the trial court erred because “[t]he officers had no justification for being inside Stanton’s residence and, therefore, anything they seized therein was the fruit of an unlawful search.” Defendant claims he had standing to contest the search because the closed ammunition container indisputably belonged to him and was something in which he had a legitimate expectation of privacy.
A. Standard of Review
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362; see People v. Parson (2008) 44 Cal.4th 332, 345.)
B. The Testimony Given At The Hearing On Defendant’s Motion To Suppress
At the hearing on defendant’s motion to suppress, the parties stipulated the search was made without a warrant and that defendant was on parole at the time. The following evidence was given.
Parole officer Randy Abney was the officer on duty in the parole office on July 16, 2008. He received information from a person who wished to remain confidential that defendant had purchased a substantial amount of methamphetamine and had changed his address to Stanton’s trailer; the person gave the specific address for the trailer. Abney called Department of Corrections and Rehabilitation Special Agent John Harrison and asked Harrison to go to the trailer park to corroborate the information Abney received. Abney instructed Harrison to place defendant under arrest pursuant to section 3056 if defendant was located.
Harrison, along with Redding police investigators Matt Stoker and Brad LaCroix, went to the address given by Abney, arriving at around 5:00 p.m. Positioned outside of the trailer, Stoker and LaCroix yelled several times, “Redding Police Department. John Godown, come out of the trailer.” Defendant and Stanton came out of the trailer. Harrison handcuffed defendant and placed him under arrest.
Harrison then spoke with Stanton who said she lived at the trailer and that defendant had been staying with her for the past two days. She said defendant arrived at her trailer the previous day. Stanton told Harrison defendant had slept on the couch and in the early morning had come into her bedroom where he spent the morning with her. Harrison told Stanton he was going to conduct a parole search of the areas of her trailer where defendant stayed. Once inside the trailer, Harrison asked Stanton to show him where defendant stayed and to point out which items belonged to defendant. Stanton pointed to items on the floor and referred to some nylon bags that were behind a chair next to the couch where defendant had slept. Among the things Stanton pointed out was an ammunition can. The ammunition can contained four baggies of white crystalline powder that later tested presumptive positive for methamphetamine. Also inside the can were various prescription medications and a California Department of Corrections and Rehabilitation card bearing defendant’s name.
Stanton testified at the hearing that defendant arrived at her trailer around 7:00 p.m. on July 15, 2008. The plan was for defendant to repair damages to her trailer and then go back to his own house when he finished. Defendant went outside when ordered by officers. Officers then told Stanton that they wanted to search her house. Stanton told them several times, “No, you can’t. I want to see a search warrant.” According to Stanton, the officers did not say they wanted to search defendant’s belongings because he was on parole. Once inside, Stanton said the officers asked which area defendant was staying in. She pointed out the front room and the bedroom. She pointed out tools that belonged to defendant. She denied pointing out the ammunition can. She did not remember defendant bringing the can into her trailer, but she said the can was not hers. Defendant had one change of clothes at her trailer; the rest of his clothes were at his house.
C. Analysis
Defendant argued before the trial court that Stanton’s trailer was not his residence and that officers cannot conduct a parole search in a third party’s residence. The trial court denied defendant’s motion, reasoning it was unnecessary to make a finding as to whether the trailer was defendant’s residence because either way, defendant was searchable.
Defendant argues on appeal the trial court erred in denying his motion. He claims the evidence established unequivocally Stanton’s trailer was not his residence and that absent his residency, the trailer could not be searched without a warrant, the existence of some exigency, or consent. Defendant contends the officers’ seizure of the ammunition can violated the Fourth Amendment because the officers had no right to be where they were when they seized it. Defendant argues the trial court’s erroneous ruling was improperly based on the disfavored concept of standing. Defendant claims he had recognizable expectations of privacy in his property located in the trailer, providing him “standing” to contest the search.
In addition to arguing the officers could not conduct a parole search of a third party’s residence, i.e., no search was allowed, defendant appears to contend in his reply brief that the specific search was an unreasonable parole search. (People v. Reyes (1998) 19 Cal.4th 743, 753-754; see People v. Clower (1993) 16 Cal.App.4th 1737, 1741.) Such claim is forfeited by defendant’s failure to raise the issue before the trial court (People v. Saunders (1993) 5 Cal.4th 580, 590) and, in any event, it is unmeritorious. The officers went to Stanton’s trailer for an appropriate parole purpose--to confirm information they received regarding defendant’s violation of the conditions of his parole. They arrived during the day, called defendant out of the trailer, spoke with Stanton confirming defendant had stayed at the trailer, and searched only those places and things in the trailer associated with defendant. Nothing suggests the search was arbitrary or oppressive even though conducted at Stanton’s trailer.
“When a criminal defendant moves to suppress evidence on the ground it was seized in violation of his constitutional rights, the prosecution may contest whether the defendant is the proper party to challenge the claim of illegal police activity.... Although traditionally framed as a question of ‘standing,’ Rakas v. Illinois, [1978] 439 U.S. [128,] 133 [58 L.Ed.2d at p. 394], noted the issue should be recognized as ‘one involving the substantive question of whether or not the proponent of the motion to suppress has had his [or her] own Fourth Amendment rights infringed by the search and seizure which he [or she] seeks to challenge.’” (People v. Koury (1989) 214 Cal.App.3d 676, 685.) “Generally, an illegal search only violates the rights of those who have a legitimate expectation of privacy in the place searched or in the property seized.” (Id. at p. 686,italics added; see People v. Jenkins (2000) 22 Cal.4th 900, 972-973.) “What a defendant must show is ‘“an actual (subjective) expectation of privacy... ” [and that the expectation is] “one that society is prepared to recognize as ‘reasonable.’”’” (People v. Koury, supra, at p. 686.)
It was undisputed here that defendant had property (tools, clothes, and the ammunition can) inside Stanton’s trailer. Even assuming, however, defendant had as a result “standing” to contest the search of Stanton’s trailer, we do not agree with defendant that the search violated his Fourth Amendment rights. The search did not require a warrant, exigency or consent because it was conducted as a reasonable parole search by officers who knew defendant was on parole and under circumstances that reasonably would have led the officers to believe defendant may have brought property with him to the location of the search.
This is not necessarily certain. Whether defendant had a “reasonable” expectation of privacy in his property “is inextricably linked to whether the search was reasonable.” (People v. Sanders (2003) 31 Cal.4th 318, 333.) The Supreme Court has stated that “[a] law enforcement officer who is aware that a suspect is on parole and subject to a search condition may act reasonably in conducting a parole search even in the absence of a particularized suspicion of criminal activity, and such a search does not violate any expectation of privacy of the parolee.” (Ibid.) Thus, the privacy interest retained by parolees is at most “extremely modest, drawing the line only at intrusions that qualify as arbitrary, capricious, or intended only to harass.” (People v. Lewis (1999) 74 Cal.App.4th 662, 671.)
Specifically, section 3067, subdivision (a), provides that, “[a]ny inmate who is eligible for release on parole pursuant to this chapter shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” The United States Supreme Court has expressly concluded the suspicionless search authorized by section 3067 does not offend the constitutional prohibition against unreasonable searches. (Samson v. California (2006) 547 U.S. 843, 846, 850-857 [165 L.Ed.2d 250, 255-262].) While the statute diminishes a parolee’s reasonable expectation of privacy, a suspicionless search by an officer advances the state’s interest in reducing recidivism and promoting reintegration and positive citizenship among parolees. (Id. at pp. 850-855 [165 L.Ed.2d at pp. 258-261]; People v. Reyes, supra, 19 Cal.4th at pp. 751, 753.)
We assume, as there was no evidence to the contrary, defendant was, in connection with section 3067, subdivision (a), subject to the standard California parole search condition. Such condition provides a parolee, his residence and any property under his control may be searched without a warrant at any time by any agent of the Department of Corrections and Rehabilitation or any law enforcement officer. (Cal. Code Regs., tit. 15, § 2511, subd. (b)(4), italics added.) Here, defendant was staying at Stanton’s trailer and had brought some of his possessions with him, placing them near the couch where he had slept. The officers went to the trailer site based on information that defendant had purchased methamphetamine and changed his address to the trailer. The officers called defendant out of the trailer, confirmed with Stanton that defendant was staying there, and confined their search to the portions of the trailer where defendant stayed and to his property. We conclude the search was a properly executed parole search of defendant’s property even though it required entry into a third party’s residence. Contrary to defendant’s claim, the officers had a right to be where they were when they seized defendant’s ammunition can.
We expressly reject defendant’s implicit position that a parolee may immunize his property from search by placing it in the home of a third party. Such a conclusion would frustrate the strong governmental interest in monitoring parolees to reduce recidivism and promote their positive citizenship. (Samson v. California, supra, 547 U.S. at pp. 850-855 [165 L.Ed.2d at pp. 258-261].) It would reduce the protection of the public interacting with parolees, who might have firearms or drugs with them.
II. The Trial Court Did Not Err In Denying Defendant Proposition 36 Probation
“California voters passed the Substance Abuse and Crime Prevention Act of 2000, commonly referred to as Proposition 36, on November 7, 2000. This initiative, which became effective on July 1, 2001 (Prop. 36, § 8), ‘dramatically changed the penal consequences for those convicted of nonviolent drug possession offenses.’ [Citation.]” (People v. Guzman (2003) 109 Cal.App.4th 341, 345-346.) Under Proposition 36, “any person convicted of a nonviolent drug possession offense shall receive probation.” (§ 1210.1, subd. (a), italics added.) The term “nonviolent drug possession offense” means “the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance....” (§ 1210, subd. (a).) The term “does not include the possession for sale,... of any controlled substance....” (Ibid.)
For purposes of Proposition 36 eligibility, the trial court determines whether defendant’s possession was for personal use by a preponderance of evidence standard. Defendant bears the burden of proof on this issue. (People v. Dove (2004) 124 Cal.App.4th 1, 10-11 (Dove); People v. Glasper (2003) 113 Cal.App.4th 1104, 1115-1116 (Glasper).)
Here the trial court found by a preponderance of the evidence that defendant possessed the methamphetamine in this case for purpose of sale. Defendant claims the trial court erred because the finding effectively overrode the jury’s verdict acquitting him of possession for sale. Defendant claims Glasper, supra, 113 Cal.App.4th 1104, is fundamentally distinguishable and that Dove, supra, 124 Cal.App.4th 1, is an unwarranted extension of Glasper that violates defendant’s constitutional right to jury trial.
Defendant does not argue the trial court’s finding was not supported by substantial evidence. In fact, the sufficiency of the evidence is apparent where defendant possessed well over 1,000 normal doses of the drug with a street value of $6,000, a clean glass pipe, a gram scale, and $725 in cash. Moreover, the law enforcement drug expert testified the amount was possessed for sale.
In the course of his argument, defendant refers several times to the conclusions of the United States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. Defendant does not, however, appear to argue the trial court’s finding violates those decisions. To the extent defendant’s argument stretches to such a claim, we reject it. (In re Varnell (2003) 30 Cal.4th 1132, 1142; Dove, supra, 124 Cal.App.4th at p. 11; see also People v. Barasa (2002) 103 Cal.App.4th 287, 294 (Barasa) [Apprendi does not apply because Proposition 36 “effects a sentencing reduction, rather than an increase in the ‘prescribed statutory maximum’ sentence”]; see Glasper, supra, 113 Cal.App.4th at p. 1115 [following Barasa].)
We agree with Dove that a defendant’s acquittal by a jury of a charge of possession for sale does not bind the trial court in considering whether the defendant is eligible for Proposition 36 probation. (Dove, supra, 124 Cal.App.4th at p. 11.) “The acquittal simply meant the jury was not convinced beyond a reasonable doubt that the possession was for sale.” (Ibid.) The trial court, however, was not required to apply the same standard in considering sentencing. The trial court was free to redetermine the personal use issue based on a preponderance of the evidence standard. (Ibid., relying on, among other cases, U.S. v. Watts (1997) 519 U.S. 148, 157 [136 L.Ed.2d 554, 565] [“a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence”].) The trial court’s finding of possession for sale for purposes of Proposition 36 eligibility did not disturb the jury’s verdict on the possession for sale offense or violate defendant’s constitutional right to jury trial.
III. The 10 Percent Administrative Fee On The Restitution Fine Must Be Stricken
At sentencing, the trial court orally imposed a $2,000 restitution fine as one of defendant’s conditions of probation. (§ 1203.1, subd. (b).) It did not orally impose any administrative fee on the restitution fine. The minute order, however, includes a 10 percent administrative fee on the fine. Such fee is unauthorized. (People v. Eddards (2008) 162 Cal.App.4th 712, 716-717.) We accept the People’s concession of the issue. We shall strike the administrative fee and direct the trial court to prepare an amended judgment and sentencing/probation order that deletes the fee.
IV. Penal Code section 4019
Pursuant to this court’s Miscellaneous Order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue (without additional briefing) of whether amendments to section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credit. (Ct. App., Third App. Dist., Misc. Order No. 2010-002.) As expressed in the recent opinion in People v. Brown (2010) 182 Cal.App.4th 1354, we conclude that the amendments do apply to all appeals pending as of January 25, 2010. Defendant is among the prisoners entitled to the additional accrual of credit. (§ 4019, subds. (b)(1) & (c)(1); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) Consequently, defendant having served 245 days of actual presentence custody at the time of judgment and sentencing, is entitled to 244 days of conduct credit, instead of the 122 days awarded under the prior credit formula. (See § 4019, subds. (b), (c) & (f); People v. Marquez (2003) 30 Cal.4th 14, 25-26 [rounding up not permitted].) We shall modify the judgment (order granting probation) to award defendant 245 days of actual custody and 244 days of conduct credit.
DISPOSITION
The 10 percent administrative fee on the $2,000 restitution fine imposed as a condition of defendant’s probation is stricken. The judgment (order granting probation) is also modified to award defendant 245 days of actual custody and 244 days of conduct credit. The trial court is directed to prepare an amended judgment and sentencing/probation order that deletes the administrative fee and awards defendant the additional credit. In all other respects, the judgment is affirmed.
We concur: SIMS, Acting P. J. BUTZ, J.