Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. BF127560A & BF149188A)
APPEAL from a judgment of the Superior Court of Kern County. J. Eric Bradshaw, Judge. Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Adam Hill was charged with the following six counts: furnishing a controlled substance to a minor (Health & Saf. Code, § 11380, subd. (a) (count 1)), possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a) (count 2)), possession of methamphetamine, a felony (Health & Saf. Code, § 11377, subd. (a) (count 3)), felon in possession of a firearm, a .45-caliber semiautomatic handgun and a 12-gauge shotgun (Pen. Code, § 29800, subd. (a)(1) (count 4)), possession of ammunition after a felony conviction (§ 30305, subd. (a)(1) (count 5)), and misdemeanor false imprisonment of a minor (§ 236 (count 6)). It was further alleged as to counts 1 through 5 that Hill had previously been convicted of and served a prior prison term under section 667.5, subdivision (b), for a crime committed on June 10, 2003.
All further statutory references are to the Penal Code, unless otherwise stated.
A jury found Hill guilty of counts 2, 3, 4 and 5, but could not reach unanimous verdicts as to counts 1 and 6. The court declared a mistrial as to those counts. In a bifurcated proceeding, the court found the prior prison allegation true. Hill was sentenced to a five-year prison term based on the upper term of four years for possession of methamphetamine while armed, plus one year for the prior prison term enhancement, concurrent to an upper term sentence of three years for the conviction of a felon in possession of a firearm. The court imposed consecutive, upper term sentences for possession of methamphetamine and felon in possession of ammunition but stayed imposition pursuant to section 654.
In exchange for not being retried on counts 1 and 6, furnishing a controlled substance to a minor and misdemeanor false imprisonment of a minor, respectively, Hill agreed to enter a guilty plea for violation of a protective order under section 273.6, subdivision (a), and a stipulated sentence of 180 days in jail.
Hill presents three claims on appeal. Hill first argues that the court improperly denied his motion to suppress the search of his residence leading to the recovery of a handgun, ammunition and controlled substances in violation of his Fourth Amendment rights. Hill next contends that the court erred in finding him guilty of a felony, as opposed to a misdemeanor for count 3, possession of methamphetamine. Finally, Hill contends that the court erred in denying his petition under section 1170.18 to redesignate a 2009 conviction for possession of a controlled substance from a felony to a misdemeanor. He argues that, had the conviction been redesignated, he would not have been subject to the enhancement for serving a prior prison term under section 667.5, subdivision (b), for his 2003 conviction as it would have been subject to the five-year washout rule.
For the reasons set forth below, we affirm the judgment of convictions. However, because of the effect of Proposition 47 and case law promulgated thereunder, we are constrained to strike the one-year prior prison term enhancement and reduce the conviction for count 3, possession of methamphetamine, from a felony to a misdemeanor.
Prior to trial, Hill filed a suppression motion pursuant to section 1538.5, contending that the warrantless search of his residence in which deputies obtained a gun, ammunition and methamphetamine violated the Fourth Amendment. At the suppression hearing, the prosecution contended that the deputies had the right to make a warrantless entry into the residence based on exigent circumstances to search for additional victims, the protective sweep doctrine to search for additional suspects, or Hill's consent. Deputies were concerned that other victims were present, and that shots had been recently fired from within the residence. Further, the prosecution argued that Hill provided implied consent to search by telling the officers where a gun was located behind his washing machine. Contending that the warrantless search for the gun was justified, the prosecution argued that the drugs found in the trash can next to the washing machine were in plain view when the officers were retrieving the gun from behind the washing machine.
Hill disagreed and argued that, even if a limited search of his residence was justified by exigent circumstances or the protective sweep doctrine, the search for the gun, ammunition and methamphetamine were outside the authorized scope of any such search. Hill also contended that he did not consent to a search for those items.
The specific facts presented at the pretrial suppression hearing are set forth post. To the extent facts presented at trial are duplicative of those specific facts, they generally are omitted from this section.
Friends S.B. and P.C. met and walked to a convenience store late at night. S.B. was 15 years old and P.C. was 17 years old at the time. P.C. did not know the last time S.B. used drugs, but she and S.B. had smoked methamphetamine together the day before.
S.B. testified that on the day of the incident, she "had access" to her own methamphetamine, syringes, and Xanax pills and that she likely had used methamphetamine, marijuana, and pills such as Xanax that day. S.B. admitted she was "high" on methamphetamine at the time P.C. and S.B. went to the convenience store. However, P.C. testified that neither she nor S.B. were in possession of methamphetamine when they went to that store.
While at the store, S.B. and P.C. met Hill and he drove them to his residence. Another male was present there. S.B. took Xanax pills and methamphetamine. After several hours, P.C. checked on S.B. in Hill's bedroom and saw her with a necktie around her arm, appearing disoriented. Hill told P.C. that S.B. had taken a large hit of dope and would be okay. Sometime later, P.C. left Hill's residence but could not convince S.B. to leave with her. While walking away from Hill's residence, P.C. saw Hill and S.B. drive by.
P.C. went to a friend's house and told the friend's parents she was concerned for S.B.'s safety. P.C. attempted to contact S.B. several times. P.C. was scared because she received a message from Hill threatening to shoot her and S.B. A sheriff's deputy arrived, and P.C. described the events that occurred at Hill's residence.
Sherriff's deputies went to Hill's residence and noticed two broken windows. A potted plant appeared to have been thrown through one window, and the other window was shot through, with a corresponding bullet hole in a cinderblock wall outside the residence. A deputy saw Hill through the blinds of a broken window and ordered him out of the residence. After Hill exited the residence, sheriff's deputies called into the house for several minutes before S.B. exited slowly, appearing disoriented. At least one deputy then entered Hill's residence to perform a protective sweep to check if there were other individuals present.
Sometime after the protective sweep was underway, another deputy questioned Hill after placing him in custody and giving him a Miranda advisement. The deputies asked Hill where the gun was located. Hill paused and responded that it was behind the washing machine. Two deputies then entered the residence, looked behind the machine and saw a gun inside a holster. The gun was on the floor near the hoses coming out of the back of the washing machine. A deputy seized the gun and cleared it of any ammunition to render it safe. Live ammunition was found in the handgun.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
While the deputies were unloading the gun on top of the washing machine, they looked down and saw pill bottles in a trash can. The bottles contained packages of clear cellophane wrapping that had both pills and a useable amount of a substance, which the deputies identified as methamphetamine. Additionally, in the room with the shot-out window, deputies found a spent shell casing.
Deputies expressly inquired whether they could search Hill's safe and requested Hill to give them written permission to do so. Hill signed a written consent form to allow the deputies to search his safe. The search of the safe revealed a shotgun, but no ammunition.
After finding the shotgun, deputies questioned Hill further. He admitted that he and a friend returned to his residence from the convenience store with P.C. and S.B. Once there, he observed the other individuals taking Xanax pills. Hill admitted that he thought there were people outside his residence in the middle of the night knocking on the door and yelling, and that they threw a potted plant through his window. He was scared for his safety and shot through the window. He knew he was not allowed to possess guns, but due to fear for his safety he had a friend bring two guns to his residence that day. Hill received several calls asking for S.B., but said she was not there.
A deputy interviewed S.B. She fell asleep approximately five to six times during the 15-minute interview. S.B. told the deputy that Hill took her purse so she could not leave. S.B. also told the deputy that Hill had provided her with Xanax, but she admitted he did not force her to take the pills. When questioned, she denied that Hill had provided her any other drugs. S.B. recalled Hill firing a gun while in the residence.
S.B. was again interviewed nearly two years after the incident. In that interview, she admitted that Hill had provided her with methamphetamine at his residence and she injected it.
At trial, S.B.'s testimony again changed. S.B. acknowledged that she told detectives after the incident that Hill provided the Xanax, but she was no longer sure if that was the case. She also explained that she probably used both her methamphetamine and methamphetamine that Hill provided, but had difficulty remembering due to the effects of the drugs.
A screen of S.B.'s blood revealed positive results for benzodiazepines, cannabinoids, and methamphetamine. Pills found in the bottles from the trash can were determined to be Alprazolam, a type of benzodiazepine. Criminalists also determined that the powdery substance in the pill bottles was methamphetamine.
At trial, S.B. did not remember being interviewed by law enforcement. Both S.B. and P.C. had difficulty remembering the details from the incident based on being under the influence of drugs.
Defense counsel presented a medical expert, Dr. John Treuting. Given a hypothetical based on the facts of the case, Treuting opined that it would not be possible to tell when S.B. ingested methamphetamine. He opined that the level of drugs found in S.B.'s blood when drawn was very high and it was likely that she had consumed methamphetamine and benzodiazepine at some time after P.C. observed S.B. in Hill's bedroom. Additionally, it was unlikely that the amount of drugs found in S.B.'s blood was based on one usage because it would have been an unusually high and life-threatening dose.
The jury found Hill guilty of possession of methamphetamine while armed, felony possession of methamphetamine, felon in possession of a firearm, and felon in possession of ammunition. However, the jury could not reach unanimous verdicts as to furnishing a controlled substance to a minor or misdemeanor false imprisonment of a minor.
After the jury trial, Hill filed a petition under section 1170.18 to redesignate his 2009 prior felony conviction in Kern Superior Court case No. BF127560A to a misdemeanor. Hill conceded that he was previously convicted of two counts of statutory rape under section 261.5, subdivision (d), and was ordered to register as a sex offender under section 290.
As Hill's registration under section 290, subdivision (c), was discretionary pursuant to section 290.006, not mandatory, he argued he was eligible for the redesignation of his 2009 felony to a misdemeanor under section 1170.18, subdivision (i). Based on a redesignation of his 2009 felony conviction to a misdemeanor, Hill also moved for a new trial, alleging that his conviction on July 9, 2003, in Kern Superior Court case No. BF102644A, could no longer serve as a prior felony under section 667.5. He contended the conviction washed out as over five years passed without him committing a felony or serving a prison term if the 2009 conviction was reduced to a misdemeanor. Based on the same argument that his registration under section 290 was discretionary, not mandatory, Hill argued his conviction for count 3, possession of methamphetamine, should have been sentenced as a misdemeanor due to the passage of Proposition 47.
At sentencing on March 1, 2016, the court denied the petition and motion and sentenced Hill without any reduction to his sentence or his enhancements.
I. Validity of the Arrest and Search
Hill contends on appeal that the warrantless search of his residence was unreasonable. Respondent counters that, although the search was conducted without a warrant, it was nonetheless reasonable based on two exceptions to the warrant requirement. Respondent claims the officers were permitted to enter the residence due to exigent circumstances to search for potential victims or to perform a protective search of the residence to search for additional suspects. Hill contends that, even if either exception applies, the officers lacked authority to extend the scope of their search for victims or suspects to locate and secure the gun. Hill also argues on appeal that he did not consent to the search. Although the prosecution relied on a theory of consent at trial, respondent did not raise it in the present appeal.
As the trial court provided no reasoning for its denial of the suppression motion, we shall independently review each of the legal theories presented at trial to determine if the search was reasonable. We conclude that, even if law enforcement was justified in entering Hill's residence based on exigent circumstances or the protective sweep doctrine, the scope of any search authorized by those theories is strictly limited and would not have reasonably extended to the space behind the washing machine, where the gun was located. However, we also conclude that the trial court's implicit finding that Hill consented to a search for the gun behind the washing machine is supported by substantial evidence. As a result, law enforcement was justified in searching for and seizing the gun, as well as seizing the drugs and ammunition they observed in plain view while retrieving the gun.
A. Legal Standards
The Fourth Amendment to the Constitution of the United States provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (See Illinois v. Gates (1983) 462 U.S. 213, 238.) The California Constitution also contains a prohibition against unreasonable searches and seizures. Article I, section 13 of the California Constitution is an almost word-for-word replication of the United States Constitution's Fourth Amendment.
A defendant may move to suppress evidence on the ground that "[t]he search or seizure without a warrant was unreasonable." (§ 1538.5, subd. (a)(1)(A).) A warrantless search is presumed to be unreasonable, and the prosecution bears the burden, by a preponderance of the evidence, of demonstrating a legal justification for the search. (People v. Redd (2010) 48 Cal.4th 691, 719 (Redd); People v. Gutierrez (2018) 21 Cal.App.5th 1146, 1152; People v. Johnson (2006) 38 Cal.4th 717, 723 ["'[L]aw enforcement personnel, not defendants, are in the best position to know what justification, if any, they had for proceeding without a warrant.' [Citation.] Accordingly, the burden of proving the justification for the warrantless search or seizure lies squarely with the prosecution."].) If a search is unreasonable under the federal Constitution, evidence obtained as a consequence thereof must be excluded. (Mapp v. Ohio (1961) 367 U.S. 643, 655; Wong Sun v. United States (1963) 371 U.S. 471, 484-485.)
"'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.'" (Redd, supra, 48 Cal.4th at p. 719, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.) In exercising our independent judgment, we "may affirm the superior court's ruling on [the appellant's] motion to suppress if the ruling is correct on any theory of the law applicable to the case, even if the ruling was made for an incorrect reason." (People v. McDonald (2006) 137 Cal.App.4th 521, 529 (McDonald); accord, People v. Letner and Tobin (2010) 50 Cal.4th 99, 145 ["'The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.' [Citation.] On appeal we consider the correctness of the trial court's ruling itself, not the correctness of the trial court's reasons for reaching its decision."].)
B. Factual Findings
The trial court did not provide any reasoning or factual findings in denying the motion to suppress. Regardless, we are required to defer to the implied factual findings of the trial court as long as those findings are supported by substantial evidence. (Redd, supra, 48 Cal.4th at p. 719; see People v. Woods (1999) 21 Cal.4th 668, 673 ["[W]e consider the record in the light most favorable to [the prosecution] as respondents since 'all factual conflicts must be resolved in the manner most favorable to the [superior] court's disposition on the [suppression] motion.'"].)
1. Evidence Presented at the Suppression Hearing
With regard to the evidence that is taken into consideration when ruling on a suppression motion, section 1538.5, subdivision (i), provides that the trial court shall base its ruling on a motion to suppress "'on all evidence presented at the [suppression] hearing and on the transcript of the preliminary hearing ....'" (People v. Johnson, supra, 38 Cal.4th at p. 725, quoting § 1538.5, subd. (i).) Likewise, on appeal, we shall look only to the evidence presented to the trial court at the suppression hearing and the transcript of the preliminary hearing.
At the suppression hearing, a sheriff's deputy testified that he was dispatched to interview P.C. P.C. described how she and S.B. met Hill while shopping at a convenience store and went to his residence. Once at the residence, S.B. spent many hours with Hill in his bedroom. P.C. knocked on the bedroom door several times to check on S.B., but Hill made excuses and refused to open the door. When P.C. was finally able to gain access to the bedroom, S.B. had a necktie tied around her arm and appeared to be heavily under the influence of drugs. Hill told P.C not to worry, and that S.B. took a large dose of drugs. P.C. also observed Hill place a black handgun under his mattress.
Sometime later, P.C. left Hill's residence. She attempted to get S.B. to leave with her, to no avail. Over the next 24 hours, P.C. tried to contact S.B., but had little success. At some point she got a call from S.B. who was slurring her words and sounded disoriented.
After interviewing P.C., the deputy drove to Hill's residence and disseminated the information he received to other sheriff's deputies. At the front of Hill's residence, deputies noticed one window had been broken by a flower pot, and another window had been shot through, with a bullet striking a cinderblock wall outside the window.
Deputy Sawaske testified that he was informed upon arriving at Hill's residence that there was at least one juvenile female, and possibly a second, and one adult male keeping the females in the residence. Deputy Guevara assisted in ordering Hill out of the residence. The deputies next ordered S.B. out of the residence but had to repeat the orders several times before she complied. S.B. walked out of the residence with a slow and staggered gait, and deputies noted that after exiting, S.B. just stood there and appeared to be "spaced out."
Once S.B. exited the residence, Sawaske and other deputies entered the residence and began to perform a sweep to ascertain whether any dangerous individuals remained.
After Hill exited the residence, Guevara had him lay prone on the ground, placed him in handcuffs and provided a Miranda advisement. Guevara asked Hill where the gun was located. Hill paused momentarily, and then stated that it was behind the washing machine.
While the deputies were performing the sweep of the residence, Guevara entered and retrieved the gun. Deputy Gaetzman assisted Guevara in recovering the gun. To see the gun, Gaetzman had to physically lean over the washing machine. While looking behind the washing machine, Gaetzman noticed pill bottles in a trash can next to the washing machine. Gaetzman was able to see through the transparent bottles and see that they contained baggies with a crystal-like white substance and pills.
The deputies performing the sweep found no other individuals in the residence.
Hill was placed in a patrol vehicle, where he was requested to and did sign a consent form to allow the deputies to search his safe. The deputy then went into the residence, opened the safe, and found a shotgun.
Absent from the suppression hearing was any discussion of securing the residence after the search and obtaining a warrant.
C. Exigent Circumstances
A warrantless entry by the police into a home is presumptively unreasonable. (People v. Williams (1988) 45 Cal.3d 1268, 1297, criticized on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 560-561.) However, law enforcement may enter a home if "there are 'exigent circumstances' justifying the warrantless or prewarrant entry." (People v. Bennett (1998) 17 Cal.4th 373, 384.) The prosecution bears the burden of proving exigent circumstances and, in so doing, must demonstrate that "there was insufficient time to obtain a warrant." (People v. Camilleri (1990) 220 Cal.App.3d 1199, 1206.) The factors demonstrating exigent circumstances will "'vary from case to case,'" depending on the "'inherent necessities'" of each situation. (People v. Bennett, supra, at p. 385.)
Exigent circumstances allow for warrantless entry to provide aid to a seriously injured occupant of the residence. "[P]olice may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury." (Brigham City v. Stuart (2006) 547 U.S. 398, 400 (Brigham City); see People v. Troyer (Troyer) (2011) 51 Cal.4th 599, 606.) "'The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.'" (Mincey v. Arizona (Mincey) (1978) 437 U.S. 385, 392; see Troyer, supra, at p. 606.)
Respondent contends that the warrantless search to find the gun was permissible based on exigent circumstances. Respondent argues that exigent circumstances existed as deputies were informed that a drugged juvenile was being held against her will by an armed male. Accordingly, respondent explained that the deputies believed warrantless entry into the residence was necessary to ensure no other victims were being held hostage. Alternatively, respondent argues that the deputies had information that more than one victim may have been inside, that due to the fact that S.B. was not coherent when she exited that the deputies could not be sure that it was her, and that it was reasonable to check to see if there were other possible victims present that may have required assistance. However, at the suppression hearing, no evidence was presented that would support the belief that there was another victim. Nor was there evidence that, if another victim was present, the additional victim required immediate medical assistance.
"An action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, 'as long as the circumstances, viewed objectively, justify [the] action.'" (Brigham City, supra, 547 U.S. at p. 404.) At the preliminary hearing, one deputy testified that he was informed that there was "possibly" a second victim in the residence. However, both of the known victims, P.C. and S.B., were accounted for at the time of the warrantless search. No evidence was presented that another victim was present, nor that such victim required immediate medical assistance.
But, giving the deputies the benefit of the doubt for the sake of argument, we will assume the deputies reasonably needed to search the residence for additional victims in need of immediate medical assistance. Even then, respondent has not explained why that would provide a basis to search for the gun. The scope of a warrantless search must be "'strictly circumscribed by the exigencies which justify its initiation.'" (Mincey, supra, 437 U.S. at p. 393; see Troyer, supra, 51 Cal.4th at p. 612.)
In Mincey, the United States Supreme Court held that a warrantless search based on emergency aid did not allow for a search after all the individuals requiring aid had been found. (Mincey, supra, 437 U.S. at p. 393.) Additionally, the California Supreme Court held that, during a search for shooting victims, the search of the residence was limited to places where a victim could be. (See Troyer, supra, 51 Cal.4th at p. 609, italics added ["'ordinary, routine common sense and a reasonable concern for human life justified [law enforcement] in conducting a walk-through search truly limited in scope to determining the presence of other victims'"; see also People v. Pou (2017) 11 Cal.App.5th 143, 152 ["under the emergency aid exception, the officers were entitled to conduct an emergency search of all places in the house where a body (victim or suspect) might have been hiding or lying in wait"].)
The prosecution presented no evidence that a victim could have been behind the washing machine. The evidence presented at the preliminary hearing indicates that different deputies entered the residence to search for and retrieve the gun than those performing the search for victims. Those officers looking to retrieve the gun presented no testimony that they were looking for an injured or disabled victim or that a victim could have fit behind the washing machine. Even if a warrantless search based on providing emergency aid was proper, there was no basis to extend the search to behind the washing machine where the gun was located.
Nor would an implied finding by the court that a person could be found behind the washing machine be supported by substantial evidence. While evidence was presented that a gun could be hidden behind the washing machine, no evidence was presented that the space was large enough for a person to fit behind the machine.
Lastly, respondent did not present evidence why the deputies would have had a reasonable apprehension of danger that would require securing the gun while looking for an injured victim. The deputies had little, if any, reason to believe that an injured victim was a threat to law enforcement or that they would be in danger from a gun behind the washing machine without someone present to use it.
In other cases, exigent circumstances have allowed for the warrantless entry of a residence to retrieve a gun based on an immediate need to secure the gun because the suspect could retrieve the gun, or others such as minors were present and could be injured. (See People v. Ngaue (1992) 8 Cal.App.4th 896, 904-905 [suspect still at large and could return and retrieve firearm]; People v. Mitchell (1990) 222 Cal.App.3d 1306, 1313-1314 [exigent circumstances permitted accompanying intoxicated, threatening suspect into residence to obtain firearm]; People v. Chavez (2008) 161 Cal.App.4th 1493, 1503 [warrantless entry to backyard to retrieve firearm that could be accessible to minor child].) No evidence was presented at the suppression hearing that there was an immediate need to secure the gun or that "there was insufficient time to obtain a warrant" for the gun (People v. Camilleri, supra, 220 Cal.App.3d at p. 1206).
We appreciate the officers' subjective concern for the safety of other potential victims and assume, for the sake of argument, that exigent circumstances may reasonably have justified the officers' search for victims. But there is no evidentiary support for the expansion of the exigent search, even if it was justified, to extend to the area behind the washing machine. Accordingly, the warrantless search for the gun may not be justified on grounds of exigent circumstances.
D. Protective Sweep
Alternatively, respondent contends on appeal that the search was justified by the protective sweep doctrine. The officers here conducted a protective sweep to ensure no other dangerous individuals were present.
A protective sweep is a quick and limited visual inspection of areas in which people may hide. (Maryland v. Buie (1990) 494 U.S. 325, 327 (Buie).) An officer's unparticularized suspicion or hunch that there could be danger is insufficient to justify a protective sweep. He or she must have a "reasonable suspicion," which requires "'articulable facts' considered together with the rational inferences drawn from those facts, that would warrant a reasonably prudent officer to entertain a reasonable suspicion that the area to be swept harbors a person posing a danger to officer safety." (People v. Celis (2004) 33 Cal.4th 667, 679-680; see Buie, supra, at pp. 327, 334.) Courts must permit the officers to "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them." (United States v. Arvizu (2002) 534 U.S. 266, 273; see People v. Ledesma (2003) 106 Cal.App.4th 857, 863.) The reasonableness of the officers' conduct depends on the facts known to the officers during the search. A search is reasonable if those facts would warrant a person of reasonable caution to believe the action taken is appropriate. (People v. Block (1971) 6 Cal.3d 239, 244.)
Respondent has not presented evidence of articulable facts known to the deputies that the residence harbored a person posing a danger at the time they entered. At the suppression hearing, deputies testified that they were informed that there was an adult male holding one, possibly two, juvenile females hostage. But, at the time of the protective sweep, Hill was in custody. No articulable evidence was provided that other suspects, let alone dangerous suspects, were present in the residence. "'"[T]he mere abstract theoretical 'possibility' that someone dangerous might be inside a residence does not constitute 'articulable facts'" justifying a protective sweep. Where an officer has no information about the presence of dangerous individuals, the courts have consistently refused to permit this lack of information to support a "possibility" of peril justifying a sweep.'" (People v. Werner (2012) 207 Cal.App.4th 1195, 1209.)
In the preliminary hearing transcript, there was mention of another male that was present with Hill and the victims at some point. But that information was revealed during a follow-up interview with S.B. three weeks after the incident. There was no evidence presented at the suppression hearing that the deputies had knowledge or a reasonable belief that any other suspects were present at the time of the search.
The prosecution also offered that, although Hill was in custody, deputies could conduct the search in case the male that exited the residence was not Hill. No articulable facts were presented to support this theory.
On appeal, respondent contends that the protective sweep was proper due to the potential danger the deputies faced in light of the evidence that Hill had recently been armed and that a gun had recently been discharged from the apartment. Respondent argues that the best way to secure the safety of the officers involved and any potential victims remaining in the residence was to search for and secure the gun.
"The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." (Buie, supra, 494 U.S. at p. 337.) "A 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." (Id. at p. 327, italics added.) "A protective sweep ... occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him [or her] for a crime" and allows the arresting officers to take "steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack." (Id. at p. 333; see People v. Werner, supra, 207 Cal.App.4th at p. 1205.)
For the sake of argument on appeal, we will assume the officers had reasonable suspicion to enter the residence to conduct a protective sweep based on their legitimate concerns for the safety of themselves and others. Even so, respondent has not provided any authority that a protective sweep may be extended to a generalized search of a residence for weapons in places where a person is not capable of hiding and we are aware of none. At the time of Guevara's search for the gun, other deputies were conducting a protective sweep to ensure no one else was present in the residence. Guevara's sole purpose in entering Hill's residence was to retrieve the gun behind the washing machine.
While respondent invokes the plain view doctrine to explain how the officers were able to also discover the drugs in the trash can between the washing machine and dryer, respondent does not argue that the handgun behind the washing machine was in plain view during the protective sweep. Based on the facts presented that the holstered handgun was found near the hoses coming out of the back of the washing machine, there is no reasonable basis to believe that officers would have found the gun in plain view. The only reason the officers knew to search behind the washing machine was because Hill told them the gun was there.
While a gun is a dangerous instrument, it is not itself a threat to safety unless someone is present to use it. The protective sweep is an exception to the warrant requirement to search for dangerous individuals and allows for searches where those persons may be located. While the presence of a loaded gun potentially could give rise to safety concerns should any individuals remain in the residence, the protective sweep that deputies were conducting at the time the other deputies entered the residence to retrieve the gun was done to confirm that no one remained in the residence. Had the protective sweep revealed another suspect, the deputies likely would have had the authority to expand the search to the spaces immediately adjoining or within the immediate control of that suspect for weapons or contraband. (People v. Celis, supra, 33 Cal.4th at p. 677; accord, Chimel v. California (1969) 395 U.S. 752, 763.)
The prosecution did not present evidence that the gun was in a location that could not be secured or that it posed a danger to the public based on its accessibility. There were several deputies present at the scene. The prosecution did not prove that it would have been impracticable to obtain, or that "there was insufficient time to obtain a warrant" for the gun. (People v. Camilleri, supra, 220 Cal.App.3d at p. 1206.) The law allows for the limited intrusion of temporarily prohibiting individuals to enter a residence in order to permit the officers time to obtain a warrant. (People v. Bennett, supra, 17 Cal.4th at pp. 387-388.) Once the sweep was completed, and it was confirmed that no individuals were in the residence, the deputies had the right to temporarily prohibit entry into the residence. As such, there was no urgency required to retrieve the weapon without a warrant. (See id. at p. 385 [describing factors relevant to whether an exigent search is necessary to prevent evidence being removed or destroyed, including the amount of time necessary to obtain a warrant, the reasonable belief that the contraband will be removed, and the danger to officers guarding the site while a search warrant is sought].) Even if the prosecution met its evidentiary burden of demonstrating the deputies were justified in conducting a protective sweep, the search for the gun was not within the scope of the protective sweep. (Redd, supra, 48 Cal.4th at p. 719.)
On appeal, appellant argues that he did not provide consent to search, and the suppression motion was wrongly decided if it was based on such a finding. Respondent did not respond to that argument or otherwise argue that Hill consented to the search of the residence for the handgun. However, we must exercise our independent judgment and may affirm the ruling based on any theory presented. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 145.) Accordingly, we will determine whether Hill provided consent thereby making the warrantless search for the gun reasonable.
On appeal, respondent obliquely references Hill's consent once in the context of a protective sweep, stating "[w]hether or not [Hill] implicitly consented to the search by telling Guevara where the gun was located [citation], the deputies needed to enter the residence to look for anyone inside who might need help."
1. Legal Standard
"[U]nder the Fourth and Fourteenth Amendments ... a search conducted without a warrant issued upon probable cause is 'per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.'" (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 (Schneckloth).) "[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." (Ibid.; see People v. James (1977) 19 Cal.3d 99, 106 (James).) "Consent can be given to a search, but the consent must be unequivocal, specific, and freely and intelligently given." (People v. Bailey (1985) 176 Cal.App.3d 402, 404, citing Parrish v. Civil Service Commission (1967) 66 Cal.2d 260, 269.) "[T]he Fourth and Fourteenth Amendments require that [the state] demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances ...." (Schneckloth, supra, at pp. 248-249; accord, James, supra, at p. 113 ["[T]here is no talismanic phrase which must be uttered by a suspect in order to authorize a search."]; People v. Frye (1998) 18 Cal.4th 894, 990, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [consent may be demonstrated by conduct as well as words].)
"The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?" (Florida v. Jimeno (1991) 500 U.S. 248, 251.) "'[W]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.'" (Schneckloth, supra, 412 U.S. at p. 222.) "'The existence of consent to a search is not lightly to be inferred,' [citation], and the government 'always bears the burden of proof to establish the existence of effective consent.' [Citations.] That burden is heaviest when consent would be inferred to enter and search a home, for protection of the privacy of the home finds its roots in clear and specific constitutional terms ...." (United States v. Shaibu (9th Cir. 1990) 920 F.2d 1423, 1426; accord, In re D.M.G. (1981) 120 Cal.App.3d 218, 225 ["[T]he People have the burden of proving by a preponderance of the evidence that the defendant's 'manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority.'"].)
2. Implied Consent
In People v. Superior Court (Peck) (1974) 10 Cal.3d 645 (Peck), a sheriff's deputy testified that when he asked to search inside the defendant's residence, the defendant stepped back and opened the door wider. (Id. at p. 648.) In contrast, the defendant testified the deputy entered without permission. (Id. at p. 649.) The California Supreme Court affirmed the grant of the motion to suppress. The court held that "[b]ecause the conduct attributed to [the] defendant did not unambiguously express consent and might well have been mere deference to an apparent assertion of authority, the trial court's implied finding [that the defendant did not consent] is supported by substantial evidence." (Ibid.) The Supreme Court noted, however, that "[h]ad the People—rather than [the] defendant—prevailed below, the officer's testimony would provide substantial evidence to support a finding of implied consent to enter." (Id. at pp. 648-649.)
In People v. Superior Court (Keithley) (1975) 13 Cal.3d 406 (Keithley), the defendant was arrested for the burglary of an electrical contracting business. He confessed that he had a stolen stove in his residence after he had invoked his right to silence. (Id. at pp. 408-409.) The police drove him to his residence, and the defendant directed the officers to the stove. (Id. at p. 409.) The trial court granted a suppression motion, impliedly finding that the defendant's consent was not sufficiently an act of free will to purge the taint of the unlawful interrogation. (Id. at p. 410.)
Upon review, the California Supreme Court found that substantial evidence supported the implied finding of the trial court that the defendant's consent to the search of his home was the fruit of an unlawful interrogation. (Keithley, supra, 13 Cal.3d at p. 412.) The Supreme Court relied on evidence that the defendant consented to the search only after the officer informed him that they were going to obtain a search warrant regardless whether he consented (id. at pp. 411-412), suggesting that the defendant gave "mere deference to an apparent assertion of authority" (Peck, supra, 10 Cal.3d at p. 649).
As the Supreme Court observed in Peck, we observe that if the trial court in Keithley had found the defendant consented, substantial evidence would also support that disposition—the defendant made inculpatory statements and directed law enforcement to the precise location where he harbored stolen goods. (Keithley, supra, 13 Cal.3d at pp. 408-409.)
Finally, in James, the defendant moved to suppress evidence from a search of his residence resulting in the police obtaining a stolen television. An officer testified that the defendant answered "'yes'" or "'yeah'" when asked if he could search the residence. (James, supra, 19 Cal.3d at pp. 106-107.) The defendant testified that the officer neither asked for nor received his permission to search. The trial court denied the motion to suppress and "impliedly found that the officer's testimony was true and that [the] defendant voluntarily consented to the search." (Id. at p. 107.) On appeal, the California Supreme Court concluded "that the record contain[ed] substantial evidence to support the implied finding of voluntary consent, and hence that finding is binding on appeal." (Id. at p. 118.)
As described by the California Supreme Court in Peck, Keithley and James, the standard of review as to whether there was consent to search is whether there is substantial evidence to support the trial court's express or implied finding.
Several earlier California appellate court decisions appear to apply a different analytical framework to evaluate a claim of "implied consent," giving less deference to the implied factual findings of the trial court. In People v. Superior Court (Henry) (1974) 41 Cal.App.3d 636 (Henry), despite the trial court expressly granting the suppression motion finding the defendant's consent to search was conditioned on her presence during the search, the appellate court found an "invitation to search implied" in the defendant's statements and reversed. (Id. at p. 639.) The court did not address whether the trial court's findings were supported by substantial evidence. Henry relied on two earlier decisions applying similar logic: People v. Smith (1962) 210 Cal.App.2d 252, 256 (the defendant's statement regarding location of vehicle registration in the glove box could be reasonably interpreted to indicate that it was "'all right'" to search the vehicle), and Nerell v. Superior Court (1971) 20 Cal.App.3d 593, 598, 600, disapproved on other grounds in People v. Medina (1972) 6 Cal.3d 484, 489 (the defendant blurting out incriminating statements that drugs were in his briefcase implied that he would consent to a search of its contents). Regardless of the reasoning of any of these appellate cases, we are duty bound to apply the consent standards as set forth by the California Supreme Court and defer to the express or implied findings of the trial court when supported by substantial evidence.
Returning to the facts of our case, the trial court denied Hill's suppression motion without comment. We "may affirm the superior court's rulings on [a] motion to suppress if the ruling is correct on any theory ...." (McDonald, supra, 137 Cal.App.4th at p. 529.) We therefore consider whether an implied finding that Hill consented to a search for his handgun is supported by substantial evidence. "'"[W]here there are no express findings of fact, it is implied that the trial court ... made whatever findings were necessary to support the judgment or order. [Citations.]" [Citation.]'" (People v. Molina (1994) 25 Cal.App.4th 1038, 1041.) Substantial evidence is defined as evidence "which is reasonable, credible, and of solid value." (People v. Brooks (2017) 3 Cal.5th 1, 57.)
After Hill exited his residence and a protective sweep was in progress, Guevara placed Hill under arrest and gave him a Miranda advisement. By the Miranda advisement, Hill was informed that he could remain silent and, if he did not, anything he might tell the officers could be used against him. Guevara asked Hill "where is the gun?" A rational trier of fact reasonably could construe the officer's question as seeking the location of the gun for the purpose of retrieving it. Before responding, Hill paused, reasonably indicating that he reflected on the question, however briefly. Hill then told Guevara precisely where the gun was located. Hill's statement of the gun's precise location was inculpatory and could be construed by a rational trier of fact as assenting to Guevara's retrieval of the gun. The fact that Hill's statement regarding the location of the gun was incriminating was an additional factor the trial court could have relied upon in determining Hill's statement was a manifestation of consent to the search. (James, supra, 19 Cal.3d at pp. 113-114.) In sum, we find that substantial evidence supports the trial court's implied finding that Hill consented to a search for the gun located behind the washing machine.
We readily acknowledge, as did the California Supreme Court in Peck, that the record here also would support the conclusion that Hill did not consent. There is no evidence that Guevara expressly requested to search for or retrieve the gun. At the time Guevara asked Hill for the location of the gun, Hill was under arrest and lying prone on the ground in handcuffs. Hill's identification of the gun's location "might well have been mere deference to an apparent assertion of authority." (Peck, supra, 10 Cal.3d at p. 649.)
In James, there was "'no rational or logical reason' for [the defendant] to agree to the search because he knew it would disclose incriminating evidence, i.e., the stolen television set. This point has occasionally been noted in our cases (see, e.g., People v. Faris (1965) ..., 63 Cal.2d 541, 545); but in none has it been held dispositive, for the obvious reason that to do so would nullify virtually every consent search which turns up incriminating evidence. Contrary to [the] defendant's implication, there may be a number of 'rational reasons' for a suspect to consent to a search even though he knows the premises contain evidence that can be used against him: for example, he may wish to appear cooperative in order to throw the police off the scent or at least to lull them into conducting a superficial search; he may believe the evidence is of such a nature or in such a location that it is likely to be overlooked; he may be persuaded that if the evidence is nevertheless discovered he will be successful in explaining its presence or denying any knowledge of it; he may intend to lay the groundwork for ingratiating himself with the prosecuting authorities or the courts; or he may simply be convinced that the game is up and further dissembling is futile. Whether these or any other reasons motivated [the] defendant in the case at bar was at most a matter for the trial court to consider in weighing this factor with all the others bearing on the issue of voluntariness." (James, supra, 19 Cal.3d at pp. 113-114.)
The California Supreme Court has described and applied the proper inquiry for reviewing rulings on motions to suppress based upon implied findings of the trial court in Peck, Keithley and James. We are, of course, required to follow the high court's precedent.
F. Plain View
When a lawful entry and search is proper, the law is clear that any incriminating evidence observed in plain view may be seized. (Coolidge v. New Hampshire (1971) 403 U.S. 443, 465.) The United States Supreme Court has said, "The plain-view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity. [Citations.] The plain-view doctrine is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owner's privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy." (Illinois v. Andreas (1983) 463 U.S. 765, 771; see Katz v. United States (1967) 389 U.S. 347, 351 ["What a person knowingly exposes to the public, even in his own home ..., is not ... subject [to] Fourth Amendment protection."].)
In Payton v. New York (1980) 445 U.S. 573, the court noted that "[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." (Id. at p. 587.) Police officers may seize incriminating evidence in plain view during a lawful search because such a seizure "does not involve an intrusion on privacy. If the interest in privacy has been invaded, the violation must have occurred before the object came into plain view ...." (Horton v. California (1990) 496 U.S. 128, 141, fn. omitted.) The justification for the doctrine is "the desirability of sparing police, whose viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place, the inconvenience and the risk—to themselves or to preservation of the evidence—of going to obtain a warrant." (Arizona v. Hicks (1987) 480 U.S. 321, 327.) Also, the doctrine "reflects the fact that requiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property, or incriminating evidence generally would be a 'needless inconvenience,' [citation], that might involve danger to the police and public." (Texas v. Brown (1983) 460 U.S. 730, 739.)
Respondent does not assert the gun was in plain view, nor would such an assertion be tenable. However, we have determined that the search for the gun was consensual and lawful. The gun was found behind the washing machine and the deputies had to lean over the machine to find it. They found the drugs when they were unloading the gun on top of the washing machine simply by looking down into a nearby trash can. "The plain-view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the objects has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity." (Illinois v. Andreas, supra, 463 U.S. at p. 771.) Here, the drugs were discovered by the officers during their lawful search for Hill's handgun. Therefore, they had a prior Fourth Amendment justification to be in the vicinity of Hill's washing machine. Once there, "[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. (Payton v. New York, supra, 445 U.S. at p. 587.) The officers had probable cause to suspect that drugs were related to the alleged criminal activity for which they were called to Hill's residence.
We find no error in the trial court's admission into evidence the handgun, ammunition and drugs seized by law enforcement during their consensual search for the gun behind the washing machine.
II. Proposition 47
A. Petition to Redesignate 2009 Conviction Under Section 1170.18
Hill presents several challenges with regard to his convictions and enhancements based on Proposition 47. First, Hill challenges the denial of his petition under section 1170.18 to redesignate his 2009 conviction in Kern Superior Court case No. BF127560A for possession of methamphetamine to a misdemeanor. "At the November 4, 2014 General Election, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47). Proposition 47 reclassified as misdemeanors certain offenses that previously were felonies or 'wobblers.'" (People v. Buycks (2018) 5 Cal.5th 857, 870-871 (Buycks).) Proposition 47 added section 1170.18, which allows persons previously convicted of certain felony offenses to petition to reduce prior felony convictions to misdemeanors. (Buycks, supra, at p. 871.) "Once an offense is resentenced or redesignated as a misdemeanor it 'shall be considered a misdemeanor for all purposes.' (Pen. Code, § 1170.18, subd. (k).)" (Ibid.)
Hill filed a petition to reduce his prior felony conviction for possession of methamphetamine in 2009 to a misdemeanor. However, the fact that Hill was registered under section 290 raised concerns regarding whether he was eligible for redesignation under Proposition 47. While Proposition 47 precluded relief for those who committed prior convictions requiring mandatory sex offender registration under section 290, subdivision (c), Hill contends that since his registration was based on a conviction that provided for discretionary registration, it was error not to grant the petition to reduce the prior conviction to a misdemeanor. Assuming his 2009 possession of methamphetamine should have been redesignated as a misdemeanor, Hill asserts that the one-year enhancement under section 667.5 based on the 2003 felony conviction should be vacated in light of the washout rule.
The prosecution did not allege a prior prison term enhancement under section 667.5 for Hill's 2009 felony conviction. Instead, the prosecution used the 2009 conviction to show that Hill did not have a five-year uninterrupted period after his release from custody for his 2003 felony conviction.
B. Section 290 Registration
1. Prior Felony Conviction
Hill's sex offender registration was based on a prior conviction from 2003 of felony statutory rape, section 261.5, subdivision (d). Section 290, subdivision (c), enumerates the crimes for which mandatory registration is required. Section 261.5, subdivision (d), is not such an offense. Rather, authority for registration was based on the discretion of the court as stated in section 290.006. Section 290.006, subdivision (a), states: "Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification...."
Proposition 47 excluded certain individuals from the benefit of the reduction of certain offenses from felonies to misdemeanors. Section 1170.18, subdivision (i), states: "This section does not apply to a person who has one or more prior convictions ... for an offense requiring registration pursuant to subdivision (c) of Section 290." (Italics added.) Hill argues that since his registration was not required under section 290, subdivision (c), he is eligible for redesignation of his 2009 conviction under Proposition 47. "[T]he language used in a statute or constitutional provision should be given its ordinary meaning, and '[i]f the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).'" (People v. Valencia (2017) 3 Cal.5th 347, 357, quoting Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)
Respondent agrees that, based on the plain language of section 1170.18, the court should not have denied the petition to reduce the prior conviction from a felony to a misdemeanor. We agree. The language of section 1170.18, subdivision (i), is precise and refers only to those persons required to register under section 290, subdivision (c). Had section 1170.18, subdivision (i), intended to preclude relief to other section 290 registrants, it could have included the other Penal Code sections to which section 290 registration applies (such as § 290.006) or, more simply, stated that any person subject to registration under section 290 is not eligible to petition to redesignate or recall a felony conviction under section 1170.18.
The court erred in denying Hill's petition under section 1170.18 based on his status as a section 290 registrant. Hill's 2009 conviction for possession of methamphetamine under Health and Safety Code section 11377 shall be redesignated as a misdemeanor for all purposes.
Respondent, while conceding that the trial court improperly denied the petition on the grounds of Hill's section 290 registration, contends that the record on appeal is not sufficient to determine whether, based on other, unspecified criteria, Hill is eligible for relief. Respondent argues that remand is appropriate. We decline the request. No other reason to deny relief was discussed by the parties at trial, nor has respondent provided legitimate concerns that other criteria would change the determination. --------
2. Current Conviction
Hill raises the same contention regarding his conviction for possession of methamphetamine under Health and Safety Code section 11377, subdivision (a). Proposition 47, which was enacted prior to Hill's trial, amended section 11377, subdivision (a), with similar language, redesignating it as a misdemeanor subject to imprisonment for no more than one year in county jail unless the defendant had a prior conviction for "an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code." As described above, respondent conceded that since Hill's registration was not required under section 290, subdivision (c), the exception does not apply and Hill should have been convicted of a misdemeanor rather than a felony under Health and Safety Code section 11377, subdivision (a).
However, respondent contends that Hill is not entitled to relief on appeal. Rather, respondent argues that Hill must petition for resentencing of the conviction under the process set forth under section 1170.18. We disagree. Section 1170.18 does not apply as it is only available for those who were already convicted prior to the enactment of Proposition 47 on November 5, 2014. (§ 1170.18, subd. (a) [stating that it applies to those convicted prior to Nov. 5, 2014 "of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ... had this act been in effect at the time of the offense"].)
Hill was sentenced after November 5, 2014. At the time he was sentenced, he should have been sentenced to a misdemeanor rather than a felony. Hill need not petition for resentencing. The trial court incorrectly sentenced Hill to a felony on count 3, and we have authority on review to correct the decision on appeal. Count 3 is therefore reduced to a misdemeanor.
3. Section 667.5 Enhancement
Hill's sentence was enhanced by a prior prison term under section 667.5. The enhancement was based on his July 9, 2003, felony conviction in Kern Superior Court case No. BF102644A. With regard to that conviction, Hill was sentenced to a four-year prison term, but was released on parole on August 10, 2005.
"Imposition of a sentence enhancement under ... section 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." (People v. Tenner (1993) 6 Cal.4th 559, 563.) Section 667.5, subdivision (b), provides for a one-year sentence enhancement on a new felony conviction resulting in a prison sentence where the defendant has previously been convicted of a felony and served a prison term. The enhancement is imposed for "each prior separate prison term ... for any felony ...." (§ 667, subd. (b).) "Under the washout provision, however, the enhancement is not imposed if the defendant is free of both felony convictions and incarceration in prison for five years following release from the previous incarceration. (§ 667.5, subd. (b).)" (People v. Warren (2018) 24 Cal.App.5th 899, 909.) Thus, "'if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply.'" (Buycks, supra, 5 Cal.5th at p. 889.)
Here, Hill committed the present offense on May 7, 2013. Unless Hill was found to have committed an intervening felony, more than five years had elapsed since Hill's release from prison for his 2003 conviction and committing the current offense. To reach back to the 2003 conviction, the prosecution relied on Hill's 2009 conviction for possession of methamphetamine to show that he committed a new felony.
As discussed above, the court erred in denying Hill's petition to redesignate his 2009 conviction as a misdemeanor for all purposes. In addition, based on the records provided on appeal, including Hill's probation report and his section 1170.18 petition, Hill received a term of probation under section 1210.1, rather than a prison term, for the 2009 conviction.
Based on the record presented, this case is analogous to People v. Abdallah (2016) 246 Cal.App.4th 736.) In Abdallah, the court held that an enhancement for one of the defendant's prior felonies washed out because, once a subsequent offense was removed from consideration because it had become a misdemeanor under Proposition 47, the defendant had the necessary offense-free five-year period. (Id. at p. 740.) The subsequent conviction reduced by Proposition 47 in Abdallah did not involve a prison sentence. Like Hill, Abdallah served a term of probation. (Abdallah, supra, at p. 740.) In Abdallah, the court held that the conversion of a prior offense to a misdemeanor created a five-year washout period during which there was neither a felony offense nor any incarceration in prison. (Id. at pp. 740, 746.) The 2009 conviction is no longer considered a felony and did not involve a prison commitment. The prior prison term enhancement based on the 2003 conviction washes out.
The denial of Hill's motion to suppress under Penal Code section 1538.5 is affirmed. However, the denial of the petition to redesignate the felony in Kern Superior Court case No. BF127560A is reversed. The judgment is modified to reduce count 3 from a felony to a misdemeanor and the one-year prior prison term enhancement under Penal Code section 667.5, subdivision (b), is stricken. The trial court is directed to forward an amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
MEEHAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________