Opinion
C082789
04-18-2018
THE PEOPLE, Plaintiff and Respondent, v. THOMAS MICHAEL ROSE III, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62137096A)
After the trial court denied his motion to suppress evidence obtained during warrantless searches of a hotel room for which he was the registered guest as well as of his cell phone and truck (Pen. Code, § 1538.5), defendant Thomas Michael Rose III pleaded no contest to possession of methamphetamine for sale and admitted a prior conviction for the same offense (Health & Saf. Code, §§ 11378, 11370.2, former subd. (c)). The court imposed a split sentence consisting of the lower term of 16 months for the drug possession offense plus three years for the prior drug conviction enhancement; the court suspended three years of the sentence and placed defendant on mandatory supervision by the probation department.
Further unspecified statutory references are to the Health and Safety Code.
On appeal defendant contends the court erred in finding he lacked a reasonable expectation of privacy in the hotel room, that the room's co-occupant could validly consent to a search of the room, that he consented to the search of his phone, and that the automobile exception and probable cause justified the search of his truck. He requests that the judgment be reversed, the motion to suppress granted, and that he be given the opportunity to withdraw his no contest plea. We conclude the trial court properly denied defendant's motion to suppress.
While defendant's appeal was pending, section 11370.2, former subdivision (c) was amended to eliminate the enhanced three-year term for a prior section 11378 conviction. (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018.) In supplemental briefing, defendant argues and the People concede that the change in the law applies retroactively. We agree, and conclude the enhancement under section 11370.2 must be stricken. We shall therefore affirm defendant's conviction, but reverse the sentence and remand the matter to the trial court with directions to strike the section 11370.2, former subdivision (c) enhancement and to resentence defendant accordingly.
FACTS AND PROCEEDINGS
Several months after he was held to answer at the preliminary hearing defendant moved to suppress the evidence against him. Detective Andrew Palmore was the only witness at the suppression hearing.
Detective Palmore was also the sole witness at the preliminary hearing. Although the trial judge stated that she had reviewed a few pages of the preliminary hearing transcript, she did not review the entire transcript before the motion to suppress hearing. The factual background is therefore based on the evidence presented at the suppression hearing.
Detective Palmore testified that on March 27, 2015, he was working as a narcotics detective for the Roseville Police Department. That day he had observed a man and a much younger woman come from the Heritage Inn in Roseville, a hotel located in a high-crime area well known for illegal methamphetamine use. The man, later identified as defendant, appeared to be about 30 years older than the woman, Casondra Carter.
Defendant exhibited jerky arm movements, exaggerated mannerisms, and finger tremors. Based on Detective Palmore's extensive experience investigating methamphetamine, he believed the mannerisms were indicative of a person under the influence of a central nervous system stimulant like methamphetamine.
After following defendant and Carter for a period of time, Detective Palmore and two other officers approached them as they ate in a nearby restaurant. There, Detective Palmore saw more signs that defendant was under the influence of some type of central nervous system stimulant. Carter exhibited similar physical symptoms of drug use.
Defendant was a "little edgy," and not as cooperative as Carter. When asked about a room at the Heritage Inn, defendant said he was not associated with any hotels in Roseville and that he lived in Sacramento and had been dropped off by a friend. He said he had not used drugs in a long time.
Detective Palmore then asked to speak to defendant and Carter outside; Carter agreed. Defendant remained inside the restaurant with other officers while they spoke.
Carter told Detective Palmore that she was staying at the Heritage Inn, and that she intended to use her room for prostitution purposes. She admitted using methamphetamine with defendant earlier in the day in the hotel room. She said he still had methamphetamine in the room, but she did not know where it was located. Because she did not have a car, defendant would sometimes drive her around, and he also provided her with methamphetamine.
When asked whose room it was, she said she had paid for the room but that defendant used his identification card to put the room in his name because she had no idea how to rent it. She had not yet checked out of the room and had a key card.
Detective Palmore asked her if he could search the hotel room, and she consented. He did not use Carter's key card to enter the room, however. Instead, he went to the hotel front desk and asked for a key to the room, which was in fact registered under defendant's name. Upon verifying with hotel staff Carter's statement that the room was registered to defendant, Detective Palmore did not return to the restaurant to ask defendant whether he consented to a search of the room.
After searching the room, officers located a methamphetamine pipe inside a drawer under the television. Next to the pipe was a closed camera case. Officers discovered methamphetamine inside the camera case.
Following the room search, defendant was arrested. Prior to booking him into jail, police confiscated defendant's cellular phone, a set of keys, and his wallet that contained a key to the hotel room.
When Detective Palmore asked defendant if he could search his phone, defendant said no. Detective Palmore then told him that he intended to seize the phone to prevent the destruction of potential evidence because typically in his experience cell phones contained messages indicative of drug sales. He explained that he would request a warrant to search the phone, and that simply requesting a warrant did not mean one would be granted. He told defendant he had the right to withhold his consent to the search.
Defendant tried to negotiate with Detective Palmore, asking the detective if he would return the phone if he was allowed to search it and found nothing incriminating. Detective Palmore agreed he would return the phone under those circumstances. Defendant then consented to the search, and Detective Palmore located several text messages concerning methamphetamine and marijuana sales and prostitution or pimping-related activities.
At some point, Detective Palmore told Carter that no scale or other indicia of methamphetamine sales had been found in the hotel room. She told him defendant's truck was parked at the Heritage Inn, and that his scale was probably inside a backpack in the truck. Detective Palmore took defendant's confiscated keys and returned to the hotel.
Although defendant had originally claimed that he did not have a vehicle and that he had been dropped off in the area, his keys opened a truck parked in the hotel parking lot. Officers located a scale inside a backpack in the truck. They also found methamphetamine packaged similarly to the methamphetamine found earlier in the hotel room.
Defendant later challenged the warrantless searches of the hotel room, his cell phone, and his truck. The court denied his motion to suppress in a written ruling. The court found defendant did not have a reasonable expectation of privacy in the hotel room because he had originally disclaimed any interest in a hotel room at the Heritage Inn or in any local hotels. The court also found that Carter had given her full consent to search the hotel room, and that she had authority to do so, citing the fact that she had paid for the room for the purpose of prostituting herself, that the room was only in defendant's name because she did not have any identification to rent the room, and that she had a key to the room in her possession. The court found defendant had no legal basis to object to the room search or to the contraband found in the room.
The court further found that defendant voluntarily consented to the search of his cell phone, and that there was no evidence any officers had threatened or otherwise coerced him into giving his consent. Finally, the court found the automobile exception to the warrant requirement applied to the search of defendant's truck.
Following the denial of his suppression motion, defendant pleaded no contest to one count of possessing methamphetamine for sale. (§ 11378.) He also admitted an alleged enhancement for a prior drug conviction for the same offense. (§ 11370.2, former subd. (c).) The court imposed an aggregate term of imprisonment of four years four months, consisting of 16 months for the possession offense plus three years for the prior drug conviction. Defendant's sentence was a split sentence under Penal Code section 1170, subdivision (h)(5)(b); the court suspended three years of the sentence and placed defendant on mandatory supervision by the probation department. Defendant timely appealed.
DISCUSSION
I
Hotel Room Search
Defendant contends the court erred in finding he lacked standing to contest the search of the hotel room because he had disavowed an interest in any area hotel rooms when initially questioned by police. He also argues Carter could not consent to the room search on his behalf, nor could she consent to a search of the camera bag in the room, which he claims was his. We disagree.
" ' "[T]o claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has 'a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.' " [Citation.]' " (People v. Magee (2011) 194 Cal.App.4th 178, 184.) This is because "Fourth Amendment rights are personal and may be asserted only by someone whose own rights have been violated." (Ibid.)
Defendant bears the burden of showing he had a legitimate expectation of privacy in the hotel room. (People v. Ybarra (1991) 233 Cal.App.3d 1353, 1360.) He contends he satisfied this burden when Detective Palmore testified that hotel staff confirmed he was the registered guest of the room searched. Although hotel guests are generally "entitled to constitutional protection against unreasonable searches and seizures" (Stoner v. California (1964) 376 U.S. 483, 490 [11 L.Ed.2d 856, 861]), courts have also found, as the trial court did, that a disclaimer of a proprietary or possessory interest in the area searched or the evidence discovered may terminate the legitimate expectations of privacy of such area or items. (See, e.g., United States v. Hawkins (11th Cir. 1982) 681 F.2d 1343 (Hawkins) [the defendant's unsolicited and violent protests that he knew nothing about a woman or the suitcase she was carrying when questioned by law enforcement at an airport were so inconsistent with a claim of a privacy interest in the suitcase that he could not later successfully assert that claim in a motion to suppress]; People v. Stanislawski (1986) 180 Cal.App.3d 748, 756-757 (Stanislawski) [the defendant failed to show reasonable expectation of privacy in a campsite area on his neighbor's property where he had disclaimed any interest in the campsite area and the items found there and failed to show he exerted joint control or had a joint arrangement concerning the area]; People v. Dasilva (1989) 207 Cal.App.3d 43 [the defendant had no reasonable expectation of privacy in items containing contraband in trunk of car he was driving where he consented to a search of the trunk and claimed that only the guitar case was his and that he did not know anything about the other items in the trunk where the contraband was found].) We see no reason why the disclaimer rule would not apply equally to hotel rooms.
The question thus becomes whether defendant's statements to Detective Palmore when asked about Carter's hotel room at the Heritage Inn obviated or so reduced his expectation of privacy as to preclude him from challenging the hotel room search. While it is true, as defendant points out, that not "every type of statement disclaiming ownership of an article forecloses the establishment of a reasonable expectation of privacy therein" (Hawkins, supra, 681 F.2d at p. 1346), such a disclaimer is a strong indication that a defendant does not expect the article or area to be free from government intrusion. (Ibid.) Under the circumstances presented in this case, we conclude that defendant's disclaimer terminated any reasonable expectation of privacy he may have had in the Heritage Inn hotel room simply as the registered guest.
Detective Palmore testified that he specifically asked defendant about the hotel room Carter told him she had paid for at the Heritage Inn. During the suppression hearing, the prosecutor asked Detective Palmore whether he "[spoke] with [defendant] about the room at the Heritage Inn," and Detective Palmore responded, "I did." It was in response to this specific question about Carter's room at the Heritage Inn that defendant said he was not associated with any local hotels whatsoever. In other words, defendant affirmatively disavowed any ownership or possessory interest in Carter's Heritage Inn hotel room. (Hawkins, supra, 681 F.2d at p. 1346 [the defendant's case involved "an affirmative disavowal of ownership rather than a passive failure to claim incriminating evidence"].)
Other testimony elicited on cross-examination further bolsters the conclusion that defendant disclaimed any interest in the hotel room. When asked by defense counsel whether he ever asked defendant if he could search the Heritage Inn hotel room, Detective Palmore said, "[n]o," explaining that in his mind, "if [defendant] said it is not his room, then there would be no point in me asking him to search it."
These facts distinguish this case from People v. Allen (1993) 17 Cal.App.4th 1214 (Allen), which defendant cites for the proposition that a disclaimer is not dispositive of the right to challenge a search. After being arrested for various drug offenses, the defendant in Allen told officers that he lived at a house on Lyell Avenue. (Id. at p. 1217.) When the officers later told him they intended to search that address, the defendant claimed he lived at a different address. (Ibid.) A search of the Lyell Avenue residence uncovered drugs. (Id. at p. 1218.) Although the defendant sought to present additional witnesses at the suppression hearing to testify that he lived at the Lyell Avenue address and to testify that he gave that address when first asked where he lived after his arrest, the court refused to admit the additional evidence, ruling that defendant's one denial of residency at the Lyell Avenue property precluded him from establishing a reasonable expectation of privacy at that address. (Ibid.) The appellate court reversed, finding the trial court erroneously relied on the disclaimer alone to the exclusion of all other evidence in determining if the defendant had a reasonable expectation of privacy in the Lyell Avenue address. (Id. at p. 1219.) It remanded for a new suppression hearing. (Id. at p. 1223.)
Defendant also cites People v. Quick (1997) 57 Cal.App.4th 1426 [nonpub. opn.], but our Supreme Court ordered that decision not to be officially published. (See People v. Quick (Sept. 29, 1997, G018071) review den. and opn. ordered nonpub. Jan 21, 1998, S065672.) We therefore do not address this unpublished opinion. (Cal. Rules of Court, rule 8.1115(a) [an appellate opinion that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action].)
Unlike here, the defendant in Allen originally claimed an interest in the home searched. (Allen, supra, 17 Cal.App.4th at p. 1217.) Defendant, by contrast, affirmatively disavowed any interest whatsoever in Carter's Heritage Inn room. Indeed, he denied any connection to any local hotels, claiming instead that he was from Sacramento and had been dropped off by a friend.
And, unlike in Allen, where the court relied solely on the defendant's disclaimer when determining the relevant privacy interest (Allen, supra, 17 Cal.App.4th at p. 1219), the court here considered additional evidence in determining which individuals had a reasonable expectation of privacy in the hotel room. The court noted that Carter told officers she was staying in the Heritage Inn room, and that she had paid for the hotel room to prostitute herself. She said the only reason the room was in defendant's name was because she did not have an identification card.
Defendant could have presented evidence during the suppression hearing that he had in fact paid for the room himself and that he had intended to stay as a guest in the hotel. He did not. (Stanislawski, supra, 180 Cal.App.4th at p. 757 [the defendant failed to produce any evidence he exerted joint control or had a joint arrangement concerning marijuana cultivation grown on neighbor's property].) Because a defendant's testimony during a hearing on a motion to suppress may not be admitted against him at trial on the issue of guilt (Simmons v. United States (1968) 390 U.S. 377, 394 [19 L.Ed.2d 1247, 1259]; Stanislawski, at p. 757), defendant certainly could have asserted, by testifying, his Fourth Amendment rights concerning the Heritage Inn hotel room without waiving any privilege against self-incrimination.
Because we conclude defendant lacked a reasonable expectation of privacy in the hotel room, he has no basis to challenge the search of the room. (Rakas v. Illinois (1978) 439 U.S. 128, 134 [58 L.Ed.2d 387, 395] ["A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed"].) In any event, substantial evidence established that Carter had authority to consent to the search.
Consensual searches do not violate the Fourth Amendment "because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so." (Florida v. Jimeno (1991) 500 U.S. 248, 250-251 .) In order for a consensual search to be valid, express or implied consent must actually be given, and the person giving consent must have actual or apparent authority to do so. (Illinois v. Rodriguez (1990) 497 U.S. 177, 181 [111 L.Ed.2d 148, 156]; United States v. Matlock (1974) 415 U.S. 164, 171 (Matlock).)
Carter told Detective Palmore that she had paid for the room in order to use it for prostitution purposes. She told him she had a key for the room, and had used the room earlier in the day to do drugs. No evidence was presented contradicting Carter's statements to police. These facts are sufficient to show that she had authority and control over the hotel room and could validly consent to its search.
Detective Palmore's reliance on Carter's consent to search the room was also reasonable under the circumstances, especially since she expressly claimed an interest in the room and defendant disavowed any interest at all. The fact that Carter appeared under the influence of some sort of stimulant, moreover, did not somehow vitiate her consent as defendant argues. (United States v. Rambo (8th Cir. 1986) 789 F.2d 1289, 1297 ["the mere fact that one has taken drugs, or is intoxicated, or mentally agitated, does not render consent involuntary"].) Although she exhibited signs of previous stimulant use, Detective Palmore explained that they were not as pronounced as defendant's symptoms, she was cooperative with police, and willingly and coherently answered his questions.
That Carter described where the room was located in the hotel rather than provide the precise room number also does not mean Detective Palmore unreasonably relied on her consent to search the room. Her description proved accurate.
Even if we set aside, for a moment, defendant's disclaimer of any interest in the room and assume that he and Carter were co-occupants, "[t]he Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained." (Georgia v. Randolph (2006) 547 U.S. 103, 106 [164 L.Ed.2d 208, 217] (Randolph).) We have already explained that Carter had actual and apparent authority over the room. Her consent, then, was sufficient to validate the search as against defendant assuming he was a co-occupant despite his disavowal of any connection to the room.
We recognize that a physically present co-occupant's stated refusal to permit entry renders a warrantless entry and search unreasonable and invalid as to him. (Randolph, supra, 547 U.S. at p. 106.) But this bar does not apply to an absent co-occupant who was not present to object at the time of the search "[s]o long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection." (Id. at p. 121.) In fashioning this rule, the Supreme Court acknowledged it was drawing a fine line, "if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out." (Ibid.)
Here, police did not surreptitiously remove defendant from the searched premises. Instead, they contacted him at a nearby restaurant. Detective Palmore initially asked both defendant and Carter to speak outside the restaurant. Carter agreed to do so. The fact that defendant remained in the restaurant while Carter spoke to police outside does not mean police ran afoul of the "fine line" announced in Randolph by removing defendant to avoid a possible objection. (Randolph, supra, 547 U.S. at p. 121.) Defendant himself apparently declined the detective's request to speak outside. (Cf. Matlock, supra, 415 U.S. at p. 166 [the defendant was arrested in the front yard of a home where officers knew he lived and the officers did not ask him for consent to search; instead they gained entry after co-occupant voluntarily consented]; Randolph, supra, 547 U.S. at p. 121 [describing the defendant in Matlock as "not present with the opportunity to object [because] he was in a squad car not far away"].)
Defendant finally contends that even if Carter could consent to the search of the hotel room, she was not authorized to consent to a search of his personal belongings. He points out that the methamphetamine was located in a closed camera bag, and claims that this was his personal property. The problem with defendant's argument, which the trial court noted during the suppression hearing, is that there was no evidence that the camera bag was actually his. In the absence of such evidence, defendant cannot show the camera bag was his property or that he otherwise had a reasonable expectation of privacy in the bag. (Stanislawski, supra, 180 Cal.App.3d at p. 757 [the defendant presented no evidence he exercised joint control over campsite area on neighbor's property].)
Like his interest in the hotel room, defendant could have testified that the camera case was his and that he exercised control over it. (Simmons v. United States, supra, 390 U.S. at p. 394; Stanislawski, supra, 180 Cal.App.3d at p. 757.) He did not. The absence of such evidence is fatal to his challenge of the search of the camera case. (Rowlings v. Kentucky (1980) 448 U.S. 98, 105-106 [the defendant failed to show he had reasonable expectation of privacy in another's purse]; United States v. Issacs (9th Cir. 1983) 708 F.2d 1365, 1368 ["government may properly contend that a defendant owned drugs which, moments before the challenged search, he had placed in his girlfriend's purse, in which he had no legitimate expectation of privacy"].)
Defendant's reliance on United States v. King (N.D. Cal. 2008) 560 F.Supp.2d 906 is misplaced. Unlike here, there was evidence in King that some of the bags that were searched were actually the defendant's. (Id. at pp. 912, 917.) Because the government could not prove what bags the seized evidence was taken from, the court ruled the government had failed to carry its burden to prove the search was reasonable. (Id. at p. 918.) The case is inapposite because defendant did not produce any evidence showing the camera case belonged to him, or that he otherwise exercised control over the item.
Defendant failed to carry his burden of showing his Fourth Amendment rights were violated by the warrantless search of the hotel room and the camera case located inside the room. The trial court did not err in denying the motion to suppress as to those searches.
II
Cell Phone Search
Defendant next argues that the search of his cell phone was unlawful. His challenge is twofold. He first contends any incriminating evidence obtained from the phone should have been excluded as the fruit of the poisonous tree because his consent was prompted by the prior illegal search of the hotel room. Alternatively, he argues that he was coerced into consenting to a search of his phone while under arrest. Having already concluded that the search of the hotel room was constitutionally valid, we proceed to defendant's coercion argument. We find no merit in his contention.
Whether defendant voluntarily consented is a question of fact to be determined in light of all the circumstances. (People v. Byers (2016) 6 Cal.App.5th 856, 864 (Byers).) We review the court's finding that his consent was voluntary for substantial evidence. (Ibid.) "All presumptions favor the proper exercise of the trial court's power to judge the credibility of witnesses, resolve conflicts, weigh evidence, and draw factual inferences." (People v. Llamas (1991) 235 Cal.App.3d 441, 447 (Llamas).)
To support his theory that he did not voluntarily consent to the search of his phone, defendant cites the following evidence: he was already in custody and being booked into the jail when Detective Palmore asked to search his phone, it was not clear whether defendant had been read his Miranda rights, he may or may not have been handcuffed, that Detective Palmore gave him a "spiel" about inevitably getting a warrant, and that Detective Palmore made an illusory promise to return his phone if no incriminating evidence was found. All of these factors, he contends, combined to induce him to consent.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
A " 'person's in-custody status, even when he is handcuffed, does not automatically vitiate his consent,' " however. (Byers, supra, 6 Cal.App.5th at p. 864.) And "the failure to give Miranda warnings does not render a consent to search involuntary." (People v. Ratliff (1986) 41 Cal.3d 675, 686 (Ratliff).) Likewise, an officer's statement that he will get a warrant, even if characterized as a threat, does not invalidate a defendant's consent. (Id. at p. 687 [trial court was entitled to conclude that even if such a " 'threat' " was made, it merely amounted to a declaration of the officers' legal remedies should the defendant refuse to cooperate].) In Llamas, for example, the appellate court found that even though a person was illegally detained, arrested, handcuffed, and placed in the back of a patrol car with other units present at the scene, these facts did not rise to the level of coercion that negated his consent to search. (Llamas, supra, 235 Cal.App.3d at p. 447.)
Defendant nevertheless argues that Detective Palmore's promise to return defendant's phone was "materially false" and that the illusory promise "tipped the scale" to coax defendant to consent. The trial court, however, found that defendant had tried to negotiate with Detective Palmore regarding the phone, that based on his record, which demonstrated he had been through the criminal booking process before, he could not legitimately claim he would physically get the phone back while in jail even if Detective Palmore had not found any incriminating evidence following a search, and that the issue was moot because incriminating text messages about drug sales were actually found on the phone. Substantial evidence supports the court's findings.
Detective Palmore testified that he would have returned the phone to defendant--meaning he would have added it to his personal belongings that had already been confiscated and would be returned upon his release from jail--had he not found any incriminating evidence on the phone. The court was entitled to believe Detective Palmore's testimony. (Ratliff, supra, 41 Cal.3d at p. 687 [trial court entitled to believe officer's testimony over father's contradictory testimony regarding his son's consent to search].) Defendant, moreover, never testified to a contrary understanding. And, as the trial court found, defendant's extensive criminal history made it unlikely that he understood Detective Palmore's statement to mean he would physically be handed the phone while in jail. Given the totality of the circumstances, the court's inference was reasonable.
Substantial evidence supports the trial court's finding that defendant voluntarily consented to the search of his phone. The court therefore did not err in denying the motion to suppress as to the phone search or the evidence obtained from the phone.
III
Truck Search
Defendant contends the warrantless search of his truck was unlawful because neither the automobile exception nor probable cause justified the search as the trial court found. We disagree.
Under the automobile exception, a warrantless search of an automobile stopped by police officers who had probable cause to believe the vehicle contained contraband is not unreasonable within the meaning of the Fourth Amendment. (Carroll v. United States (1925) 267 U.S. 132, 149 [69 L.Ed. 543, 549].) If officers have probable cause to search a vehicle, they may conduct a warrantless search of any containers found inside that may conceal the object of the search. (United States v. Ross (1982) 456 U.S. 798, 825 [72 L.Ed.2d 572, 594] [addressing scope of automobile exception to warrant requirement].)
The automobile exception applies to parked vehicles. (See People v. Hochstraser (2009) 178 Cal.App.4th 883, 903 [warrantless search of a detained defendant's car parked in apartment complex carport was proper under automobile exception to warrant requirement].) The justification to conduct a warrantless search under the automobile exception "does not vanish once the car has been immobilized; nor does it depend upon a reviewing court's assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant." (Michigan v. Thomas (1982) 458 U.S. 259, 261 [73 L.Ed.2d 750, 752-753], fn. omitted; id. at pp. 261-262 [discovery of contraband during inventory search of car's glove compartment gave officers probable cause to believe there was contraband elsewhere in the vehicle and to conduct a warrantless search of entire car, even though both the car and its occupants were already in police custody].)
In this case, the court found sufficient probable cause to believe the truck contained evidence of criminal activity based largely on Carter's statement to Detective Palmore that defendant had a scale for weighing drugs in a backpack, and that since the backpack was not found in the room, it was probably in defendant's truck, which she said was parked at the hotel. The court noted that the information Carter had earlier told Detective Palmore about the room proved reliable because they found methamphetamine and a pipe in the hotel room like she said they would. The truck was also located where she said it would be.
Defendant contends, however, that Carter was an untested source and that her statement that contraband was " 'probably' " in the truck was insufficient to establish probable cause. We disagree.
Probable cause "signifies a level of proof below that of proof beyond a reasonable doubt, or even proof by a preponderance of the evidence. It refers to 'a state of facts as would lead a man of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.' " (People v. Hurtado (2002) 28 Cal.4th 1179, 1188.)
Although Detective Palmore had not known Carter before, he sufficiently corroborated the information she gave him. She told him where the room was located, that defendant had registered for the room in his name, and that a methamphetamine pipe and methamphetamine could be found in the room. All of that information proved to be true. Relying on her information about the scale and backpack that were probably in the truck was reasonable, especially since those items had not been located in the hotel room and Detective Palmore had seen text messages showing defendant was engaged in narcotics sales. Defendant, moreover, had lied about having the truck, claiming he had been dropped off by a friend in the area. A reasonable inference from such a lie is that he was hiding contraband in his truck that he did not want officers to discover.
Based on the totality of these facts, a man of ordinary caution would reasonably entertain a strong suspicion that further evidence concerning illegal narcotics sales would be found in defendant's truck. (People v. Hurtado, supra, 28 Cal.4th at p. 1188.) Detective Palmore therefore had probable cause to search the truck.
Because the automobile exception justified the warrantless search of defendant's truck, we need not consider his argument that because he had already been arrested and transported several miles away to the jail, the search was improper under Arizona v. Gant (2009) 556 U.S. 332 (Gant). We merely point out that Gant addressed the separate "search incident to arrest" exception to the Fourth Amendment and not the automobile exception. (Id. at p. 335.) Indeed, Gant itself recognized the distinct nature of the two exceptions, explaining that "[i]f there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, [supra,] 456 U.S. [at pp.] 820-821, authorizes a search of any area of the vehicle in which the evidence might be found," which is broader than the search incident to arrest exception. (Id. at p. 347.)
IV
Health and Safety Code Section 11370.2 Enhancement
Defendant argues that the three-year enhancement imposed under section 11370.2, former subdivision (c) must be reversed because his prior conviction for violating section 11378 no longer constitutes a qualifying conviction under a newly amended version of the statute, which he contends applies retroactively. The People concede the amendment is retroactive and that the enhancement should be stricken. The parties differ, however, on the proper remedy. Defendant contends the low-term sentence on his present conviction should remain unchanged while the People argue that the trial court can reconsider the low-term sentence it initially imposed, in part, based on the imposition of the enhancement. We agree with the People.
As we have noted, defendant's sentence in this case includes a three-year enhancement under section 11370.2, former subdivision (c) for a prior section 11378 conviction. Under a recent amendment to section 11370.2, former subdivision (c), however, a prior section 11378 conviction no longer qualifies for an enhanced sentence. (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018.) The statutory amendment went into effect on January 1, 2018, while defendant's appeal was pending.
At the time defendant was sentenced, section 11370.2, former subdivision (c) provided: "Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment." (§ 11370.2, former subd. (c).)
Section 11370.2, subdivision (c) currently provides: "Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11380, whether or not the prior conviction resulted in a term of imprisonment." (Stats. 2017, ch. 677, § 1, eff. Jan. 1. 2018.)
Defendant contends the amendment applies retroactively to him pursuant to In re Estrada (1965) 63 Cal.2d 740 (Estrada) and its progeny. Under Estrada, absent evidence to the contrary, when legislation reduces punishment for a particular offense, we assume the Legislature intended the legislation to apply to all defendants whose judgments are not yet final on the statute's operative date. (Id. at p. 742.) The People concede Estrada applies, and we agree since the amendment to section 11370.2, former subdivision (c) mitigates punishment by eliminating the imposition of a consecutive three-year term for a prior section 11378 conviction. (See People v. Millan (2018) 20 Cal.App.5th 450, 455-456 [amendment to section 11370.2 applies retroactively under Estrada]; People v. Zabala (2018) 19 Cal.App.5th 335, 338 ["vacat[ing] the trial court's imposition of a three-year sentencing enhancement under Health and Safety Code former section 11370.2, subdivision (c), in light of the newly enacted version of that statute effective January 1, 2018"].)
As amended, only a prior conviction for violating section 11380 qualifies as a predicate conviction for the enhancement under section 11370.2, subdivision (c). (§ 11370.2, subd. (c).) Because defendant did not admit a prior conviction for violating section 11380, the enhancement no longer applies.
While we agree the recent amendment to section 11370.2, former subdivision (c) requires reversal of defendant's sentence, we do not believe the trial court is limited to striking the three-year enhancement and resentencing defendant to the previously imposed 16-month low-term on his section 11378 conviction. "When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme." (People v. Hill (1986) 185 Cal.App.3d 831, 834; People v. Garner (2016) 244 Cal.App.4th 1113, 1118; People v. Burbine (2003) 106 Cal.App.4th 1250, 1257-1258.)
Here, in originally choosing the low-term the trial court considered mitigating and aggravating factors "as well as the fact that we are imposing a three year prior of 1170.2 . . . ." (Italics added.) Thus, part of the trial court's rationale for selecting the low-term was because the court was also imposing three years for the enhancement. Now that the three-year enhancement is reversed, "[t]he trial court is entitled to rethink the entire sentence to achieve its original and presumably unchanged goal." (Hill, supra, 185 Cal.App.3d at p. 834.)
Defendant's reliance on People v. Nasalga (1996) 12 Cal.4th 784, for a contrary conclusion is misplaced. There, after finding that an amendment to an enhancement on a grand theft offense applied retroactively thereby reducing the term for the applicable enhancement from two years to one year, the Supreme Court found remand for resentencing on the underlying offense unnecessary. (Nasalga, supra, 12 Cal.4th at pp. 788-789, 797-798.) It did so, however, because the defendant's sentence on the enhancement was not part of her plea bargain. (Id. at p. 798.) Here, by contrast, defendant admitted the enhancement alleged pursuant to section 11370.2, former subdivision (c) as part of his plea agreement. In exchange for pleading no contest to the underlying section 11378 offense and admitting the prior conviction for purposes of section 11370.2, former subdivision (c), defendant understood that the court could impose a four year four month lid under Penal Code section 1170, subdivision (h). Because the enhancement in this case was part of defendant's plea bargain, remanding for resentencing with discretion to consider the entire sentence is appropriate.
Defendant's reliance on Proposition 47 cases such as Harris v. Superior Court (2016) 1 Cal.5th 984, 991-992, is equally unavailing. There, the Supreme Court held the People were not entitled to have a plea agreement set aside and to reinstate the original charges if the defendant sought to have his sentence recalled under Proposition 47. (Harris, at p. 987.) The People do not seek to have the plea agreement set aside here, however. They merely request that defendant be resentenced in light of the fact that the enhancement under section 11370.2, former subdivision (c) no longer applies. Harris, therefore, is inapt.
DISPOSITION
Defendant's sentence is reversed and the matter is remanded to the trial court with directions to strike the three-year Health and Safety Code section 11370.2, former subdivision (c) enhancement and to resentence defendant consistent with this opinion. In all other respects the judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Hull, J. /s/_________
Mauro, J.