Opinion
H035648
01-13-2012
THE PEOPLE, Plaintiff and Respondent, v. GEORGE MARTINEZ, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. F18675)
Defendant George Martinez, Jr., appeals a judgment entered following his no contest plea to unlawful possession of a firearm (Pen. Code, § 12021.1, subd. (a)), and possession of marijuana for sale (Health & Saf. Code, § 11359). On appeal, defendant asserts the trial court erred as follows: (1) denying his motion to suppress evidence pursuant to Penal Code section 1538.5; (2) imposing probation conditions; (3) awarding custody credits; and (4) ordering attorney fees and a drug program fee. Additionally, defendant argues he was denied effective assistance of counsel, and that this court should conduct an independent review of his Pitchess motion to discover the police officers' personnel files.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
STATEMENT OF THE FACTS AND CASE
In December 2009, police officers searched defendant's apartment in Watsonville pursuant to defendant's probation search condition. Officers found a bag on the floor next to the bed that contained a Glock .40 caliber gun that had been reported stolen from a home in Fresno on May 17, 2009. The bag also contained a magazine of .40 ammunition. During the remainder of the search, officers found an additional box of ammunition, a digital scale, five small bags of crystal methamphetamine, marijuana that appeared to be packaged for sale, and a pay/owe sheet. In addition, officers found a duffle bag containing a large amount of marijuana in the closet.
Defendant was charged by information with unlawful possession of a firearm (Pen. Code § 12021.1, subd. (a) - count 1), unlawful possession of ammunition (Pen. Code § 12316, subd. (b)(1) - count 2), receiving stolen property (Pen. Code § 496, subd. (a) - count 3), and possession of marijuana for sale (Health & Saf. § 11378 -count 4)).
Following the court's denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, defendant entered a negotiated plea of no contest to counts one and four in exchange for a dismissal of the remaining counts, and a grant of felony probation. The court suspended imposition of sentence, and granted defendant three years probation.
DISCUSSION
Defendant raises issues on appeal regarding the denial of his motion to suppress evidence, his Pitchess motion, probation conditions, custody credits, and attorney fees and a drug program fee.
Motion to Suppress Evidence Pursuant to Penal Code section 1538.5
Defendant asserts the trial court erred in denying his suppression motion, because the search of the apartment was conducted pursuant to his probation condition, but was not supported by reasonable or probable cause that defendant resided at the residence.
"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. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.) In assessing the constitutionality of defendant's detention, "we balance the extent of the intrusion against the government interests justifying it, looking in the final and dispositive portion of the analysis to the individualized and objective facts that made those interests applicable in the circumstances of the particular detention." (Id. at p. 365.)
"A probationer's home, like anyone else's, is protected by the Fourth Amendment's requirement that searches be 'reasonable.' " (Griffin v. Wisconsin (1987) 483 U.S. 868, 873.) "A State's operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, . . . presents 'special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements." (Id. at pp. 873-874.) The California Supreme Court has held that the warrantless search of a probationer's residence pursuant to a search condition of probation may be conducted without any reasonable suspicion of criminal activity. (People v. Bravo (1987) 43 Cal.3d 600, 602, 607.) Therefore, a search pursuant to a probation search condition, conducted without reasonable suspicion of criminal activity, does not violate the Fourth Amendment so long as the search is not "undertaken for harassment or . . . for arbitrary or capricious reasons." (Id. at p. 610.) "But whether the purpose of the search is to monitor the probationer or to serve some other law enforcement purpose, or both, the search in any case remains limited in scope to the terms articulated in the search clause [citation] and to those areas of the residence over which the probationer is believed to exercise complete or joint authority [citations]." (People v. Woods (1999) 21 Cal.4th 668,681.)
Defendant challenges the trial court's ruling on the motion to suppress on the basis that the officers had insufficient information that defendant lived at the apartment that was searched.
The search in this case was conducted pursuant to defendant's probation condition. On December 9, 2009, Officer Gombos went to 526 Main Street, Apartment 4 in Watsonville to search the apartment where he believed defendant lived. When he arrived at the address, Officer Gombos conducted surveillance of the car he believed belonged to defendant. Defendant's father's address was on the car's registration. While Officer Gombos was watching defendant's car, a woman came out of the apartment building at 526 Main Street and got into the car. Officer Gombos approached her and asked her about conducting a probation search of defendant. The woman gave the officer the key to the apartment where defendant was at that time.
Officer Gombos, along with other officers, went to the apartment, knocked on the door and announced their presence. They then entered the apartment with the key the woman gave them. Defendant was inside the apartment and was detained. The officers then searched the apartment pursuant to defendant's probation condition. In the bedroom of the apartment, the officers found a bag on the floor next to the bed that had a stolen gun and magazine. The bedroom also contained defendant's wallet, and male and female clothing in the closet.
Defendant asserts the search was improper, because the officers did not have a reasonable belief defendant lived in the apartment. The primary case defendant cites in support of this argument is People v. Tidalgo (1981) 123 Cal.App.3d 301, where the court upheld the grant of a suppression motion because the defendant did not actually live in the residence that was searched pursuant to a probation condition. Here, however, unlike Tidalgo, the officers had no contrary information that defendant lived anywhere other than the searched apartment. When they entered the apartment with the key, defendant did not protest to tell them he lived elsewhere, and the officers found items in the house that demonstrated his residence there. Based on the facts of this case, it is clear the officers had a reasonable belief defendant lived in the apartment that was searched.
The trial court properly denied defendant's motion to suppress evidence.
Motion to Discover Police Personnel Files
On appeal, defendant requests this court conduct an independent review of the officer's personnel records to determine if the trial court's order denying discovery was proper, and the Attorney General has no objection.
Prior to trial, defense counsel filed a Pitchess motion seeking to discover evidence of prior citizen complaints against officers Gombos and Frietas related to "the fabrication of charges and/or evidence, false arrest, and illegal search and/or seizure by the officer(s) involved due to dishonest and moral laxity." The trial court granted an in camera hearing and following that hearing, determined that one incident related to Officer Gombos was discoverable, subject to a protective order.
In Pitchess, the California Supreme Court held that a criminal defendant is entitled to discovery of officer personnel records if the information contained in the records is relevant to his ability to defend against the charge. A defendant, by written motion, may obtain information contained in a police officer's personnel records if it is material to the facts of the case. (Evid. Code, § 1043, subd. (b)(3).) When presented with such a motion, the trial court determines whether there is good cause for disclosure. (Evid. Code, §§ 1043, 1045.) If the court orders disclosure, the custodian of the officer's records brings to court all the potentially relevant personnel records and, in camera, the trial court determines whether any of the records are to be disclosed to the defense. During the in camera hearing, neither the defense nor the prosecution is present. (P eople v. Mooc (2001) 26 Cal.4th 1216, 1226-1227 (Mooc).)
In order for the trial court to facilitate appellate review of it's in camera rulings, it "should . . . make a record of what documents it examined before ruling on the Pitchess motion. . . . If the documents produced by the custodian are notvoluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party's ability to obtain appellate review of the trial court's decision, whether to disclose or not to disclose, would be nonexistent. Of course, to protect the officer's privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed."(Mooc, supra, 26 Cal.4th at p. 1229, fn. omitted.)
When requested to do so by a defendant, an appellate court can and should independently review the transcript of the trial court's in camera Pitchess hearing to determine whether the trial court disclosed all relevant documents. (Mooc, supra, 26 Cal.4th at p. 1229.)
We independently reviewed the sealed reporter's transcript of the in camera hearings regarding the Pitchess discovery of the officer's personnel records. As reflected in the sealed transcript, the trial court's findings are sufficient to permit appellate review. Based on our review of the court's findings, we conclude the trial court properly exercised its discretion in ordering discovery of the incident involving Officer Gombos. In this case, the court did not erroneously withhold additional discoverable evidence.
Probation Conditions
Defendant asserts his probation conditions prohibiting him from possessing controlled substances or firearms are unconstitutional, because they are vague and overbroad. He argues the conditions should be modified to include a knowledge requirement. Defendant also asserts that the term "controlled substances" must be "narrowed" to exclude medication that has been legally prescribed to him.
Defendant challenges the probation conditions on the grounds that they are unconstitutionally vague and overbroad. Defendant contends that an objection on these grounds need not be made at the time of sentencing, because appellate review does not require scrutiny of the individual facts of this case.
Our Supreme Court has determined that the forfeiture rule does not apply when a probation condition is challenged as unconstitutionally vague or overbroad on its face and the claim can be resolved on appeal as a pure question of law without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.).
In this case, to the extent defendant's arguments on appeal raise such constitutional challenges and present pure questions of law without reference to the sentencing record, we will consider the substance of those arguments.
"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) Reasonable probation conditions may infringe upon constitutional rights provided they are narrowly tailored to achieve those legitimate purposes. (People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin); Sheena K., supra, 40 Cal.4th at p. 890.) "[P]robation is a privilege and not a right" (Olguin, surpa, 45 Cal.4th at p. 384), and "[i]nherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' " (U.S. v. Knights (2001) 534 U.S. 112, 119.)
"A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (Sheena K., supra, 40 Cal.4th at p. 890.) In addition, "[a] probation condition 'must be sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated,' if it is to withstand a [constitutional] challenge on the ground of vagueness." (Ibid.; People v. Freitas (2009) 179 Cal.App.4th 747, 750 (Freitas).)
In order to be sufficiently precise for the probationer to know what is required of him or her, a requirement of knowledge should be included in probation conditions prohibiting the possession of specified items. (Freitas, supra, 179 Cal.App.4th, at pp. 751-752.) "[T]he law has no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of [the prohibited items]." (Id. at p. 752.)
The probation condition at issue in this case provides that defendant "not be in possession of any controlled substance and/or firearm." Defendant asserts a knowledge requirement must be included in this condition to prevent it from being overbroad.
In People v. Kim (2011) 193 Cal.App.4th 836 (Kim), this court held that an explicit knowledge requirement is not a required element of every probation condition. In Kim, the defendant was prohibited as a condition of probation from owning, possessing, or having within his custody or control "any firearm or ammunition for the rest of [his] life under Section[s] 12021 and 1231 [subdivision] (b)(1) of the Penal Code." (Id. at p. 840.) On appeal, the defendant contended that the probation condition lacked a knowledge requirement. This court concluded that "where a probation condition implements statutory provisions that apply to the probationer independent of the condition and does not infringe on a constitutional right, it is not necessary to include in the condition an express scienter requirement which is necessarily implied in the statute." (Id. at p. 843.)
With regard to the probation condition in this case prohibiting defendant from possessing a firearm, the rationale of Kim is applicable. Like Kim, the probation condition in this case is the same as the statutory provision in Penal Code section 12021 prohibiting a person convicted of a felony from possessing a firearm. Because the firearms prohibition in this case implements a statutory provision, it does not require the addition of a knowledge requirement. (Ibid.)
While the firearms prohibition in this case requires no modification, the controlled substance prohibition is not easily analyzed under the Kim rationale. Unlike Kim, where the firearm prohibition implemented the statutory provisions of Penal Code section 12021, the controlled substances prohibition does not have a similar statutory provision. Therefore, a knowledge requirement should be added to the controlled substance provision so it will "not be left to implication." (People v. Garcia (1993) 19 Cal.App.4th 97, 102.)
The knowledge requirement in the probation condition is satisfied by inserting the word "knowingly." In addition, the challenged probation condition concerning controlled substances is so broad that it may prohibit defendant from possessing or using prescribed medication that is medically necessary. There is no rehabilitative purpose in preventing defendant from utilizing necessary medication in accordance with a valid prescription. Therefore, we will modify the probation condition concerning controlled substances by adding an exception for prescribed medication.
The probation condition regarding controlled substances will be modified to provide that defendant may "not knowingly be in possession of any controlled substance, except in accordance with a valid prescription."
Calculation of Custody Credits
Defendant asserts the trial court erred in calculating his custody credits pursuant to Penal Code, section 4019.
On May 11, 2010, imposition of sentence was suspended, and defendant was placed on three years formal probation with a condition that he serve 184 days in county jail, with 184 days credit for time served.
On May 12, 2010, defendant filed a motion to correct presentence credits to include conduct credits calculated pursuant to the retroactive application of the January 2010 version of Penal Code section 4019. In response, the prosecutor argued the court's order of 184 days in custody was an error, and that the actual credits should have been 153 days, with 76 days of conduct credits under the former Penal Code section 4019, for a total of 229 days.
The court modified defendant's probation to reduce his actual credits to 153 days, and refused to award conduct credits pursuant to Penal Code section 4019 on the ground that imposition of sentence was suspended, and probation was granted.
The court erred in refusing to award presentence conduct credit on the ground that imposition of sentence was suspended in this case. Penal Code section 4019, subdivision (a)(2) provides presentence conduct credit "[w]hen a prisoner is confined in or committed to the county jail . . . as a condition of probation after suspension of imposition of sentence or suspension of execution of sentence, in a criminal action or proceeding in a criminal proceeding." This subdivision is the same whether the former or current version of Penal Code section 4019.
Here, defendant was confined to county jail as a condition of his probation. Therefore, he is entitled to presentence conduct credit pursuant to Penal Code section 4019. He further asserts that the January 2010 amendment to Penal Code section 4019 should be applied retroactively to grant him additional presentence credits.
The 1982 version of Penal Code section 4019, which was in effect at the time of defendant's crime in 2009, provided that a defendant may earn conduct credit at a rate of two days for every four-day period of actual custody. (Stats. 1982, ch. 1234, § 7.) Effective January 25, 2010, section 4019 was amended to allow qualifying defendants to earn conduct credit at a rate of four days for every four days of actual custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
There is a conflict among the courts of appeal concerning whether the January 2010 amendment to Penal Code section 4019 applies prospectively from January 25, 2010, or retrospectively to all cases not yet final on that date. The California Supreme Court has granted review to resolve the conflict. (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, 1363-1365, review granted Jun. 9, 2010, S181963 [Third Appellate District—amendment was retroactive]; People v. Rodriguez (2010) 183 Cal.App.4th 1, 13-14, review granted Jun. 9, 2010, S181808 [Fifth Appellate District— amendment was prospective only]; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted Jul. 28, 2010, S183724 [Sixth Appellate District—amendment was prospective only].)
Here, defendant makes the same arguments that have been made in the numerous cases before this court and the other courts of appeal. Defendant asserts that the Legislature intended the January 2010 amendment to apply retrospectively since the amendment was meant to address the state's fiscal emergency, and certain language in the amendments anticipated a wave of claims for additional credits which could not possibly arise if the law applied prospectively. Citing In re Kapperman (1974) 11 Cal.3d 542 and People v. Sage (1980) 26 Cal.3d 498, defendant further argues that prospective application of the law would result in a violation of his right to equal protection.
We have previously rejected these arguments, and until we receive guidance from the Supreme Court, we adhere to our view that the Legislature did not intend the January 2010 amendment to apply retroactively.
Therefore, the abstract of judgment should be amended to provide actual credits in the amount 154 days, and conduct credits in the amount of 76 days for a total of 230 days.
Defendant was arrested December 9, 2009, and was granted probation on May 11, 2010. The period of time from December 9, 2009 and May 11, 2010 is 154 days, rather than 153 as the court ordered in this case.
Imposition of Attorney Fees
Defendant asserts the court's order that he pay $250 for the service of the public defender is not supported by substantial evidence.
Penal Code section 987.8 provides in relevant part: "In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, . . . the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof." (Pen. Code, § 987.8, subd. (b).) Penal Code section 987.8 subdivision (c) provides that where a defendant was afforded such legal assistance and, "at the conclusion of the case, appears to have sufficient assets to repay, without undue hardship, all or a portion of the cost of the legal assistance provided to him or her, by monthly installments or otherwise; the court shall make a determination of the defendant's ability to pay . . . ." "If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county . . . ." (Pen. Code § 987.8, subd. (e).)
" 'Ability to pay' means the overall capability of the defendant to reimburse the costs or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant's present financial position. [¶] (B) The defendant's reasonably discernable future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernable future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernable future financial ability to reimburse costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant's financial capability to reimburse the county for the costs of the legal assistance provided to the defendant." (Pen. Code § 987.8, subd. (g)(2).)
An order for attorney fees is not mandatory under Penal Code section 987.8, and a determination that a defendant has the ability to pay is a prerequisite for entry of an attorney fees order. (Pen. Code § 987.8, subd. (e).) A finding of a present ability to pay need not be expressed, but may be implied through the content and conduct of the hearings. (People v. Phillips (1994) 25 Cal.App.4th 62, 71.) While the finding of a present ability to pay may be implied, the attorney fees order cannot be upheld on appeal unless it is supported by substantial evidence. (People v. Kozden (1974) 36 Cal.App.3d 918, 920.)
In this case, before imposing the $250 fee for service of the public defender, the court asked defendant how he supported himself. Defendant said he did landscape work, but was not sure how much money he earned doing that. Defendant also told the court he lived with his godfather, and paid him $250 a month for groceries. On this basis, the court made a finding that defendant had the present ability to pay attorney fees.
The limited information upon which the trial court relied in this case is not substantial evidence to support its finding that defendant had the present ability to pay attorney fees under Penal Code section 987.8. The fact that defendant did landscape work, and paid his godfather $250 a month for groceries in no way supports a conclusion about his present or future financial position.
For all these reasons, we conclude that "there is no substantial evidence to support the trial court's determination that [defendant] possessed the present ability to pay the sum assessed." (People v. Kozden, supra, 36 Cal.App.3d at p. 920.) We also conclude that due to the modest amount of fees involved ($250), remanding this matter for further judicial proceedings is likely to result in additional expense that far exceeds the amount at issue. In the interests of judicial efficiency and economy, we shall therefore strike the order directing defendant to pay attorney fees.
Imposition of Drug Program Fee
Defendant argues there was insufficient evidence that he had the ability to pay a $150 drug program fee (Health & Saf. Code, § 11372.7). The Attorney General argues that this claim has been forfeited because defendant did not challenge it when it was imposed in the trial court.
This court held that claims challenging the sufficiency of the evidence do not require an objection at the sentencing hearing in order to preserve them on appeal. (People v. Pacheco (2010) 187 Cal.App.4th 1392 [court held defendant's challenge to the sufficiency of evidence to support trial court's finding that he had the ability to pay a criminal justice administration fee was not waived by his failure to raise the objection in the trial court].) Similarly, here, defendant has not forfeited his sufficiency of the evidence claim.
In light of the fact we find defendant's challenge to the imposition of the drug program fee was not waived by his attorney's failure to object in the trial court, we are not required to address defendant's ineffective assistance of counsel claim.
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With regard to the drug program fee ordered in this case, Health and Safety Code section 11372.7, subdivision (a) provides in relevant part: "Except as otherwise provided in subdivision (b) . . . , each person who is convicted of a violation of this chapter shall pay a drug program fee in an amount not to exceed one hundred fifty ($150) for each separate offense." Subdivision (b) states in relevant part: "The court shall determine whether or not the person who is convicted of a violation of this chapter has the ability to pay a drug program fee. . . . In its determination of whether a person has the ability to pay, the court shall take into account the amount of any fine imposed upon that person and any amount that person has been ordered to pay in restitution. If the court determines that the person does not have the ability to pay a drug program fee, the person shall not be required to pay a drug program fee." (Health & Saf. Code § 11372.7, subds. (a) & (b).)
The trial court is not required to make an express finding that a defendant has the ability to pay a drug program fee. (People v. Staley (1992) 10 Cal.App.4th 782, 785 (Staley).) Absent evidence to the contrary, this court presumes that the trial court followed the law and performed its duty under Evidence Code section 664, and that the requisite determination of defendant's ability to pay is implicit in the trial court's order. (Staley, supra, 10 Cal.App.4th at p. 785.)
Here, the only evidence to support a finding that defendant had the ability to pay the $150 drug program fee is the same evidence that was used to support the imposition of the attorney fees in this case. As we stated previously, the fact that defendant did landscape work, and paid his godfather $250 a month for groceries is not sufficient to establish a present ability to pay a court imposed fee. Thus, there was insufficient evidence to support the trial court's implied finding of defendant's ability to pay the drug program fee, and it should be stricken.
DISPOSITION
The judgment is modified as follows:
The condition of probation that defendant is "not to be in possession of any controlled substance and/or firearm," is amended to "not knowingly be in possession of any controlled substance, except in accordance with a valid prescription." The firearm condition is amended to "not be in possession of a firearm."
Defendant is awarded 230 days of custody credit.
The order that defendant pay $250 for the service of the public defender pursuant to Penal Code section 987.8 is stricken.
The order that defendant pay a $150 drug program fee pursuant to Health & Safety Code section 11372.7 is stricken.
As modified, the judgment is affirmed.
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RUSHING, P.J.
WE CONCUR:
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PREMO, J.
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ELIA, J.