Filed 3/12/20 CERTIFIED FOR PUBLICATION
OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D075372
Plaintiff and Respondent, (Super. Ct. Nos. INF1402881, v. INF1600417)
SKYLER DAMON SMITH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County. Jeffrey L.
Gunther, Judge. (Retired Judge of the Sacramento Sup. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part and
remanded for resentencing.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles Raglan, Scott Taylor, and
Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent. In December 2014, police entered a casita belonging to Skyler Damon Smith and
saw drugs in plain view. The Riverside County District Attorney filed an information
charging Smith with possessing heroin (Health & Saf. Code, § 11350, subd. (a); count 1),
possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2),
possessing methamphetamine while armed with a loaded firearm (Health & Saf. Code,
§ 11370.1; count 3), being armed with an assault weapon (Pen. Code,1 § 30605, subd.
(a); count 4), and being a felon in possession of a firearm (Pen. Code, § 29800, subd.
(a)(1); count 5; case No. INF1402881, the first case). The trial court subsequently denied
Smith's suppression motion relating to the search of his casita.
In September 2015, Smith was in an accident while riding his motorcycle. A
search of the motorcycle revealed drugs. In December 2016 (case No. INF1600417, the
second case), Smith was charged with possessing methamphetamine (Health & Saf.
Code, § 11378; count 1), sale or transport of methamphetamine (Health & Saf. Code,
§ 11379, subd. (a); count 2), possessing methamphetamine while armed with a loaded
firearm (Health & Saf. Code, § 11370.1; count 3), being a felon in possession of a firearm
(Pen. Code, § 29800, subd. (a)(1); count 4), and being a felon in possession of
ammunition (Pen. Code, § 30305, subd. (a); count 5).
The trial court granted the People's motion to consolidate the cases, and the first
amended information included all 10 counts. The People further alleged that Smith
suffered two prison priors (§ 667.5, subd. (b)). During trial, the court denied a second
suppression motion concerning a search of Smith's motorcycle in the second case.
1 Undesignated statutory references are to Penal Code.
2 A jury found Smith guilty of all counts and the court found true the two prison
priors. The trial court sentenced Smith to 10 years eight months in prison. Smith
appealed, asserting the court erred in denying his suppression motions. Relying on
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Smith also argued that the trial
court could not legally impose a $10,000 restitution fine and a $300 court facilities
assessment fee without first determining his ability to pay.
In an opinion issued in May 2019, we affirmed the judgment. Smith petitioned
our Supreme Court for review. The Supreme Court granted review and transferred the
matter to us with directions to vacate our decision and reconsider the cause in light of
People v. Ovieda (2019) 7 Cal.5th 1034 (Ovieda).
In the meantime, our Legislature enacted Senate Bill No. 136, (Stats. 2019,
ch. 590), which amended section 667.5, subdivision (b) to limit one-year prior prison
terms to cases where the prior was for "a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code[.]" The amendment
became effective on January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c).)
We received and considered supplemental briefing from the parties. Smith argues
that the warrantless entry into his casita was objectively unreasonable because an
unattended car running in a driveway did not constitute exigent circumstances or suggest
a medical emergency, claiming that the officer acted upon an unparticularized suspicion
devoid of articulable facts. We agree and conclude that the evidence seized during this
warrantless search should have been suppressed because the People did not meet their
burden to justify the search under the emergency aid or exigent circumstances exceptions,
3 or the good faith exception to the exclusionary rule. Accordingly, we reverse Smith's
convictions on counts 1 through 5, but otherwise affirm the judgment.
Smith also contends that his one-year prior prison term enhancements imposed on
two prior convictions pursuant to section 667.5, subdivision (b) must be stricken in light
of Senate Bill No. 136. The Attorney General concedes this issue. We find the Attorney
General's concession appropriate. We vacate our original opinion issued May 31, 2019,
and issue this revised opinion addressing Smith's arguments in section II and newly
added section V.
DISCUSSION
I. GENERAL LEGAL PRINCIPLES
The Fourth Amendment to the United States Constitution prohibits the
government from conducting unreasonable searches and seizures of private property.
(U.S. Const., 4th amend.; Arizona v. Gant (2009) 556 U.S. 332, 338; People v. Macabeo
(2016) 1 Cal.5th 1206, 1213.) Warrantless searches "are per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and well-delineated
exceptions." (Katz v. United States (1967) 389 U.S. 347, 357, fns. omitted.) As relevant
here, well-delineated exceptions to the warrant requirement include exigent
circumstances, inventory searches, and plain-view searches. (68 Am.Jur.2d (2010)
Searches and Seizures § 114, p. 237.)
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).) When a
defendant files a motion to suppress, the People have "the burden of proving that the
4 warrantless search or seizure was reasonable" (People v. Williams (1999) 20 Cal.4th 119,
130), and alternatively, " 'the burden . . . to prove that exclusion of the evidence is not
necessary because of [the good faith] exception.' " (People v. Willis (2002) 28 Cal.4th
22, 36.) The prosecution must establish by a preponderance of the evidence the facts
justifying a warrantless search. (People v. Johnson (2006) 38 Cal.4th 717, 729.) In
reviewing a court's ruling on a suppression motion, "[w]e defer to the trial court's factual
findings, express or implied, where supported by substantial evidence. In determining
whether, on the facts so found, the search or seizure was reasonable under the Fourth
Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11
Cal.4th 354, 362.)
II. FIRST CASE: CASITA SEARCH
A. Background Facts2
An officer with the Palm Springs Police Department and his partner were
dispatched to a home following a call from a concerned citizen. The citizen reported that
an unoccupied running car had been in the driveway of a residence for about 30 minutes.
The officer met the citizen by the car and noted that the unoccupied car was running, the
windows were up and foggy, the lights were on, and determined that a car rental
company owned the vehicle. The officer became concerned that a person inside the
home might be in distress or that criminal activity was afoot. The officer testified that his
duties include welfare checks and that he had experienced a prior incident with similar
2 The facts are based on the testimony given in connection with the suppression motion.
5 circumstances where a person had been suffering from a diabetic coma. The officer
heard no noise inside the house. The officer rang the doorbell several times and could
hear the doorbell ringing inside the home. The officer or his partner also knocked on the
door. The officers waited about 30 to 60 seconds for someone to answer the door, but
received no response. The lack of any response concerned the officer.
The officers left the front door and walked the exterior of the residence to
determine if an occupant was injured or crime was afoot. About 10 feet away from the
front door and under the same roofline the officer found a second door that appeared to
be "an interior-type door" which led the officer to believe that the door was "part of and
open to the main residence." The officer did not knock on the door, but moved the
handle. The officer did not knock because he had no reason to believe doing so would
alert anyone inside the residence. The officer did not know the interior layout of the
house and did not know that the door led to a casita that lacked access to the front door.
Finding the door unlocked, the officer opened the door and announced "police."
As the door opened, the officer saw an individual, who he knew to be a felon and not a
resident of this home, lying on the floor looking back at him. This caused the officer to
believe that crime was afoot.
After a "factually intense" analysis, the trial court denied the suppression motion.
The court found the officer's testimony to be "very sincere, very honest" regarding the
description of the scene and the officer's concerns. The court found that the officers
waited a substantial period of time for a response after they rang the doorbell and
knocked. The court concluded that the officer's failure to knock on the second door
6 before entering was not unreasonable given "this was a one-roof situation. It wasn't the
separate casita, which we see in this community on many occasion[s]. This was a
contiguous part of the entirety of one structure . . . ."
During trial, the officer testified that after stepping into the room he saw Smith,
another individual who he knew had a felony conviction, drug paraphernalia and what
appeared to be methamphetamine in plain view. He later learned that Smith and the other
individual were on probation and subject to search conditions.
B. Legal Principles
At " 'the very core [of the Fourth Amendment] stands the right of a man to retreat
into his own home and there be free from unreasonable governmental intrusion.' "
(Payton v. New York (1980) 445 U.S. 573, 589-590.) Accordingly, "the Fourth
Amendment has drawn a firm line at the entrance to the house." (Id. at p. 590.) Thus,
"[w]ith few exceptions, the question whether a warrantless search of a home is reasonable
and hence constitutional must be answered no." (Kyllo v. United States (2001) 533 U.S.
27, 31.)
Pursuant to the emergency aid exception, "police 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; People v. Troyer (2011) 51 Cal.4th 599, 606.) Additionally,
"the exigent circumstances exception applies to situations requiring prompt police action.
These situations may arise when officers are responding to or investigating criminal
activity." (Ovieda, supra, 7 Cal.5th at p. 1042.)
7 Additionally, in People v. Ray (1999) 21 Cal.4th 464 (Ray), a plurality of our high
court held that the community-caretaker exception, which permits police to enter if the
search is unrelated to the criminal investigation duties of the police, justified the
warrantless entry into a home for a security check. (Id. at p. 471 (lead opn. of Brown,
J.).) In Ray, someone had called police and reported that a neighbor's front door " 'has
been open all day and it's all a shambles inside.' " (Id. at p. 468 (lead opn. of Brown, J.).)
Officers responded, saw the open door, and confirmed that " 'the front room appeared to
be ransacked as if someone went through it.' " (Ibid.) Officers knocked and announced
their presence but received no reply. They then entered "to conduct a security check 'to
see if anyone inside might be injured, disabled, or unable to obtain help.' " (Ibid.) The
officers found no occupants, but saw drugs and cash in plain view. They left and
obtained a search warrant. (Id. at pp. 468-469 (lead opn. of Brown, J.).)
A plurality of the Supreme Court concluded that while the facts known to the
officers did not establish "exigent circumstances or the apparent need to render
emergency aid, they warranted further inquiry to resolve the possibility [that] someone
inside required assistance or property needed protection." (Ray, supra, 21 Cal.4th at
p. 478 (lead opn. of Brown, J.).) The lead opinion then pronounced that "[u]nder the
community caretaking exception, circumstances short of a perceived emergency may
justify a warrantless entry, including the protection of property, as 'where the police
reasonably believe that the premises have recently been or are being burglarized.' "
(Id. at p. 473 (lead opn. of Brown, J.).) Under this exception, the question is: "Given the
known facts, would a prudent and reasonable officer have perceived a need to act in the
8 proper discharge of his or her community caretaking functions?" (Id. at p. 477 (lead opn.
of Brown, J.).)3
In Ovieda, supra, 7 Cal.5th 1034, the California Supreme Court disapproved the
lead opinion in Ray, supra, 21 Cal.4th 464, holding that "the community caretaking
exception asserted in the absence of exigency is not one of the carefully delineated
exceptions to the residential warrant requirement recognized by the United States
Supreme Court." (Ovieda, at p. 1053.)
C. Analysis
The question before us is whether exigent circumstances justified the warrantless
search. Exigent circumstances are defined as " ' " 'an emergency situation requiring swift
action to prevent imminent danger to life or serious damage to property, or to forestall the
imminent escape of a suspect or destruction of evidence.' " ' " (Ovieda, supra, 7 Cal.5th
at p. 1041.) Exigent circumstances include situations where "an entry or search appears
reasonably necessary to render emergency aid, whether or not a crime might be
involved." (Id. at pp. 1041-1042.) We separately analyze whether the emergency aid or
the exigent circumstances exceptions apply. Finding they do not apply, we address the
3 In Ray, a separate three-justice concurrence rejected the lead opinion's community caretaking rationale, but agreed in the result that the entry was proper finding "[e]xigent circumstances existed, because the officers had reasonable cause to believe a burglary was in progress, or that a burglary had been committed and there might be persons inside the residence in need of assistance." (Ray, supra, 21 Cal.4th at p. 482 (conc. opn. of George, C. J.).) The dissent concluded that "[t]he circumstances did not warrant a reasonable belief that entry was necessary to preserve life or property. To the extent that the officers believed they were called upon to perform a community caretaking function, it would have sufficed to shut the door." (Id. at p. 487 (dis. opn. of Mosk, J.).)
9 People's contention that the good faith exception to the exclusionary rule should apply to
validate the search.
1. Emergency Aid Exception
The well-recognized emergency aid exception "require[s] that articulable facts
support a reasonable belief that an emergency exists." (Ovieda, supra, 7 Cal.5th at
p. 1048.) It is not enough that officers seek to rule out "the possibility that someone . . .
might require aid." (Id. at p. 1047.) "Officers do not need ironclad proof of 'a likely
serious, life-threatening' injury to invoke the emergency aid exception." (Michigan v.
Fisher (2009) 558 U.S. 45, 49 (Fisher).) "[T]he test . . . [is] whether there was 'an
objectively reasonable basis for believing' that medical assistance was needed, or persons
were in danger . . . ." (Ibid.)
People v. Smith (1972) 7 Cal.3d 282 (Smith) is instructive. In Smith, an apartment
house owner found the six-year-old daughter of one of her tenants crying on the steps to
the girl's apartment. (Id. at p. 284.) The girl stated that she was alone in her apartment
and lonesome. (Ibid.) The owner took the girl in and contacted the police after waiting
one hour. (Ibid.) The responding officer went to the girl's apartment looking for her
mother. (Ibid.) After receiving no response to his knocks, the officer had the owner of
the apartment house open the door. (Ibid.) He entered and found drugs inside. (Ibid.)
The California Supreme Court found the entrance to be illegal. "[R]ather than
drawing the obvious conclusion that no one was at home [citation], [the officer]
proceeded to speculate that [the mother] might nevertheless be inside but be unable to
answer because she was somehow indisposed and, by that token, in need of 'help.'
10 This . . . attempt to create an emergency where none existed is . . . implausible. . . . There
was not a scintilla of evidence to support the assumption that [the mother] had not only
returned unnoticed to her flat but had thereupon suddenly fainted, fallen sick, or
otherwise become incapacitated to the point of rendering her unable to care for her
daughter and in need of police assistance. Such a belief is no less irrational than that
entertained by the officer in Horack [v. Superior Court of Orange County (1970) 3 Cal.3d
720, 725 (Horack)] who received no response when he knocked on the door of an
apparently empty house, and 'because there was no response, he believed the persons
were intentionally failing to open the door; because they were consciously refusing to
open the door, he believed they had something to hide, namely, that they were occupying
the house without authority.' [Citation.] In both cases the belief upon which the officer
acted was the product not of facts known to or observed by him, but of his fanciful
attempt to rationalize silence into a justification for his warrantless entry." (Smith, supra,
7 Cal.3d at p. 287.)
Similarly here, absolutely no evidence supported a conclusion that anything was
amiss inside the residence. The officers observed an unoccupied running vehicle in a
residential driveway at night and what appeared to be an unoccupied dark residence with
the porch light on and front door locked. No one responded to the doorbell or knocks at
the door and the officer could not see or hear anything inside the house. On these facts,
the officer expressed concern that someone inside the residence might be having a
medical emergency.
11 However, as required by Ovieda, supra, 7 Cal.5th 1034, the officer pointed to no
facts that reasonably supported his concern that someone inside the residence might be
suffering from a medical emergency such as moaning or groaning from inside the home,
blood or vomit near the vehicle or residence, or disarray inside the vehicle or near the
home. Rather, the facts known to the officer were insufficient to provide him with " 'an
objectively reasonable basis for believing' that medical assistance was needed, or persons
were in danger" such that a warrantless search of the residence was justified by the
emergency aid exception. (Fisher, supra, 558 U.S. at p. 49; compare, People v. Roberts
(1956) 47 Cal.2d 374, 376 [warrantless entry proper where officers had information that a
person living inside apartment "was sickly" and heard "several moans or groans" after
knocking on door]; People v. Hill (1974) 12 Cal.3d 731, 755 [warrantless entry proper
when officers, aware of a recent shooting, found one victim and then found fresh
bloodstains on the fence and porch of a residence, received no response to their knocks
and observed what appeared to be bloodstains on the floor inside the residence],
overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5;
People v. Ammons (1980) 103 Cal.App.3d 20, 30-31 [Officer had rational basis for
warrantless entry where "[b]oth cars were home; defendant was usually home on Monday
morning; the dog was left unattended long enough to defecate on the floor. Usually a
neighbor cared for the dog when the Ammons were away. Contrary to their custom, the
Ammons had not told this neighbor that they would be away from home. The victim,
normally a punctual employee, was several hours late for work and had not called; his
employer expressed concern for his welfare. Defendant had a heart condition for which
12 she was under a doctor's care and was taking medication. The Ammons neighbors had
not seen them for two days. Their daughter was on vacation and could not be reached."];
People v. Amaya (1979) 93 Cal.App.3d 424, 427 [after report of shooting and finding one
dead victim, warrantless search of apartment which had a fresh trail of blood leading to it
upheld].)
Unlike the above cases, the officer here articulated no facts reasonably suggesting
that someone inside the residence might be having a medical emergency. Accordingly,
we conclude that the emergency aid exception did not justify the warrantless entry into
Smith's casita.
2. Exigent Circumstances Exception
"A burglary in progress may constitute an 'exigent circumstance,' as that phrase is
used in Fourth Amendment jurisprudence." (People v. Lujano (2014) 229 Cal.App.4th
175, 183.) On this point, People v. Duncan (1986) 42 Cal.3d 91 (Duncan) and Horack,
supra, 3 Cal.3d 720 are instructive.
In Duncan, supra, 42 Cal.3d 91, a police officer responded to a "call that a
burglary was in progress or had just occurred[,]" at a residence and spoke to a neighbor,
who apparently told the officer he saw two teenagers fleeing with a television set. (Id. at
p. 95.) The police officer noticed an open back window with a television set and other
items beneath it. (Id. at pp. 95-96.) "Surmising that one or more of the burglars was still
inside," the officer climbed in the window "to search for intruders" and saw a drug
laboratory. (Id. at p. 96.) The trial court denied the defendants' motion to suppress and
the California Supreme Court affirmed, concluding the police officer's "warrantless entry
13 into defendants' residence was justified by the exigent circumstance of a burglary in
progress." (Id. at p. 98.) The Duncan court concluded substantial evidence supported the
trial court's finding that the police officer reasonably believed at least one burglar was
inside the house and observed it "would have been poor police work indeed for an officer
to fail to investigate under circumstances suggesting a crime in progress." (Id. at pp. 98-
99.)
In Horack, supra, 3 Cal.3d 720, an officer received a call that two " 'hippie-type' "
individuals had entered what the caller believed was a vacant house with sleeping bags.
(Id. at p. 723.) The officer went to the house around 1:00 p.m., knocked and announced
" 'Police Officer.' " (Ibid.) He could see there were no furnishings in the house except a
stereo which was playing loudly. (Ibid.) No one responded to his knocks, and he heard
no other sounds from within. (Ibid.) The front door was locked. The back door was
unlocked, and the officer entered to " 'ascertain if there were people in the dwelling that
did not have the authority to be inside.' " (Ibid.) Our high court found the search to be
unreasonable. "The only property to be protected was the bare carpeted house containing
a stereo system, and the police officers saw nothing to indicate any immediate threat of
damage or destruction. Indeed, [the officer] candidly admitted that he saw nothing to
indicate that a burglary was in progress or had been committed. And even the most vivid
imagination would be unable to contrive imminent danger to human life in the situation
apparent to [the officers] prior to their entry." (Id. at p. 726.)
The instant case is more similar to Horack than Duncan. The neighbor who
reported the running car in the driveway did not see anyone fleeing the residence, or state
14 that the neighborhood had a burglary problem. The lit porch light, locked front door, and
dark interior suggested that the home was occupied, but that the occupants were not
home. Moreover, an overview of the residence's exterior did not reveal any open doors
or windows, flashlight beams in the home, or anything amiss. Here, while the
unoccupied running car warranted investigation, it did not reasonably suggest a burglary
in progress and justify a warrantless search. Common sense suggests that burglars would
not announce their presence by leaving an unoccupied running getaway vehicle in the
driveway of the residence being burglarized.
Our search of state and federal case law revealed the existence of no cases where
an unoccupied running vehicle prompted the search of a residence. However, we find
People v. Hernandez (1994) 30 Cal.App.4th 919 (Hernandez) somewhat analogous. In
Hernandez, an undercover officer purchased narcotics from a suspected drug dealer
during an undercover narcotics investigation. (Id. at p. 921.) Officers later observed the
two vehicles driven by the suspected drug dealer at the time of the controlled buys parked
behind a residence. (Ibid.) Undercover officers knocked on the door of the residence and
spoke to the occupants, but were unable to ascertain whether the suspect lived there. (Id.
at p. 922.) The officers obtained a search warrant for the residence based on the presence
of the vehicles behind the residence; no information was provided that the suspected drug
dealer ever entered the residence. (Id. at pp. 923-924.)
The Court of Appeal concluded that probable cause to issue the search warrant did
not exist because the presence of the vehicles "raised suspicions, but failed to establish a
nexus between the criminal activities and the residence." (Hernandez, supra, 30
15 Cal.App.4th at p. 924.) The Hernandez court observed there was no link between the
vehicles and the residence, noting the absence of information that the suspect owned the
vehicles, lived at the residence, or was ever seen carrying packages between the vehicles
and the residence. (Ibid.) Thus, "there was no substantial basis for concluding that
probable cause existed for the residential search." (Ibid.; accord, People v. Garcia (2003)
111 Cal.App.4th 715, 722 [insufficient nexus between drug dealer who sold drugs in a
bar and the possible presence of drugs in the bar to support issuance of search warrant
where the drug dealer was a patron, not an owner or employee of the bar and there was
no evidence the drug dealer stored drugs at the bar].)
Applying the reasoning in Hernandez, while the unoccupied running car warranted
investigation, no articulable facts existed to create a nexus between any suspected
criminal activities and the residence. Accordingly, we conclude that the exigent
circumstances exception did not justify the warrantless entry.
3. Good Faith Exception
"Under the 'fruit of the poisonous tree' doctrine, both direct and indirect products
of an unreasonable search are subject to exclusion." (People v. Werner (2012) 207
Cal.App.4th 1195, 1213.) Nonetheless, "[t]he United States Supreme Court has
'repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth
Amendment violation.' [Citations.] 'Indeed, exclusion "has always been our last resort,
not our first impulse . . . ." ' [Citation.] [¶] 'Whether the exclusionary sanction is
appropriately imposed in a particular case . . . is "an issue separate from the question
whether the Fourth Amendment rights of the party seeking to invoke the rule were
16 violated by police conduct." ' " (Barajas v. Appellate Division of Superior Court (2019)
40 Cal.App.5th 944, 952-953.)
Anticipating the possibility that we might find the warrantless entry unjustified,
the People tacitly concede that the search of the casita violated the Fourth Amendment
and contend we should affirm the denial of the suppression motion based on the good
faith reliance doctrine, citing Hudson v. Michigan (2006) 547 U.S. 586, 591 (Hudson),
Herring v. United States (2009) 555 U.S. 135, 140 (Herring), and Davis v. United States
(2011) 564 U.S. 229, 237 (Davis).
In Hudson, supra, 547 U.S. 586, police obtained a valid warrant to search
defendant's home. (Id. at p. 588.) Instead of waiting the appropriate amount of time after
knocking and announcing, police entered the home and recovered narcotics and a firearm.
(Ibid.) Defendant claimed that the evidence should be suppressed based on a clear
violation of the Fourth Amendment. (Ibid.) A Supreme Court majority disagreed
reasoning that police obtained the evidence pursuant to a valid search warrant and courts
could sever the method of the search (which might have been a constitutional violation),
from the justification for the search (which was constitutionally valid). (Id. at pp. 592-
593.)
In Herring, supra, 555 U.S. 135, police arrested defendant when a computer
search revealed that defendant had an active warrant. (Id. at p. 137.) During a search
incident to defendant's arrest, police recovered narcotics and a gun. (Id. at p. 138.) After
the search, the officer learned that the warrant had been recalled. (Ibid.) Balancing the
costs and benefits of exclusion (id. at p. 141), the court concluded that the deterrent value
17 of the exclusionary rule turns on the "flagrancy" of police misconduct. (Id. at p. 143.)
"To trigger the exclusionary rule, police conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is
worth the price paid by the justice system." (Id. at p. 144.) Our high court declined to
exclude the evidence stating "that when police mistakes are the result of negligence such
as that described here, rather than systemic error or reckless disregard of constitutional
requirements, any marginal deterrence does not 'pay its way.' " (Id. at pp. 147-148.)
In Davis, supra, 564 U.S. 229, an officer searched a car and recovered contraband
in accordance with a controlling United States Supreme Court case that created a "bright-
line rule authorizing the search of a vehicle's passenger compartment incident to a recent
occupant's arrest," which was later held unconstitutional by the United States Supreme
Court. (Id. at pp. 239, 233-235.) The Supreme Court concluded that the exclusionary
rule should not apply, reasoning that the police officer's actions, although later declared
unconstitutional, were at the time perfectly legal and quite reasonable. (Id. at p. 249.)
Thus, there was no deterrent value in suppressing evidence recovered from a then-lawful
search. (Ibid.) As another court explained, the Davis rule avoids penalizing law
enforcement officers for errors of appellate judges. (People v. Youn (2014) 229
Cal.App.4th 571, 579.) Rather, where police officers are complying in good faith with
the law as it existed at the time, there is no reason to apply the exclusionary rule. (Ibid.)
The People argue that the officer who entered the casita was not culpable because
he relied in good faith on the community caretaking exception articulated in Ray, supra,
21 Cal.4th 464. This argument is misplaced because "[t]he pertinent analysis of
18 deterrence and culpability is objective, not an 'inquiry into the subjective awareness of
arresting officers.' " (Herring, supra, 555 U.S. at p. 145.) The sole question is whether
the search was objectively reasonable under binding legal precedent at the time of the
search. Unlike the binding United States Supreme Court precedent at issue in Davis,
supra, 564 U.S. 229, Ray was a plurality decision and is not binding precedent. (Texas v.
Brown (1983) 460 U.S. 730, 737 [plurality opinion not binding precedent]; People v.
Karis (1988) 46 Cal.3d 612, 632 [opinion "is not binding precedent since a majority of
the court did not join in the plurality opinion"].)
Accordingly, we cannot conclude that the officer's actions were constitutional
under existing legal authority at the time of the search. Applying the good faith
exception here would allow police officers to undertake warrantless searches of
residences based on nonbinding legal precedent. Additionally, not applying the good
faith exception to this circumstance would act to deter similar searches based on
nonbinding legal precedent and devoid of articulable facts justifying the search. Thus,
we conclude that the good-faith exception to the exclusionary rule does not apply, and
suppression of the evidence obtained during the warrantless search of Smith's casita is
required.4
4 People v. Harris (2015) 234 Cal.App.4th 671 (Harris), relied on by the People for application of the good faith exception is inapposite. The Harris court noted that for over 40 years, California courts had interpreted a United States Supreme Court opinion to permit forced, warrantless blood draws of motorists arrested on suspicion of DUI without any additional showing of exigent circumstances. (Id. at pp. 702-704.) After the search at issue, another United States Supreme Court opinion repudiated this long-standing interpretation. (Id. at p. 703.) Under these circumstances, the Harris court concluded
19 III. SECOND CASE: MOTORCYCLE SEARCH
A. Background Facts
During trial, Smith moved to suppress any evidence seized after police searched
his motorcycle. Outside the jury's presence, the trial court heard testimony from an
officer with the traffic division of the Palm Springs Police Department (the traffic
investigator) who responded to a traffic collision involving a motorcycle. The
motorcycle was blocking the roadway and needed to be towed away. Smith, the
motorcycle driver, had already been transported to the hospital when the traffic
investigator arrived at the scene.
The traffic investigator needed to impound the motorcycle as part of the traffic
collision investigation. The impound process included completing a California Highway
Patrol 180 form documenting the towing and inventory search of the vehicle. An
inventory search is normal procedure for a towed vehicle. The inventory search included
determining the existence of valuable property, contraband, weapons, or any other items
that could be dangerous to individuals with access to a tow yard where the vehicle may
be left unsecured. The traffic investigator stated that the motorcycle would be taken to a
police storage yard.
Before conducting the inventory search, the traffic investigator learned that
hospital personnel had found a firearm on Smith. The traffic investigator performed a
visual check of the motorcycle and noticed a single storage compartment underneath the
that the good faith exception applied to the warrantless blood draw at issue. (Id. at pp. 702-703.)
20 seat. The storage compartment was large enough to house a handgun or ammunition.
The officer unlocked the compartment using the ignition key. The compartment
contained a black zippered bag. The black bag contained a wallet, sunglasses, and a
white plastic baggie with a substance the officer believed to be methamphetamine.
The trial court found that the contents of the motorcycle needed to be inventoried
to determine whether the motorcycle contained anything valuable. It rejected the defense
argument that the traffic investigator was looking for contraband and not performing a
required inventory search. Based on these findings, the court denied the suppression
motion, concluding that the traffic investigator had conducted a lawful inventory search.
Vehicle inventory searches are "a well-defined exception to the warrant
requirement of the Fourth Amendment." (Colorado v. Bertine (1987) 479 U.S. 367, 371
(Colorado).) An inventory search may extend to the car's trunk, glove compartment, and
closed containers located within the car. (Id. at p. 375.) "A police officer may be
allowed sufficient latitude to determine whether a particular container should or should
not be opened in light of the nature of the search and characteristics of the container
itself." (Florida v. Wells (1990) 495 U.S. 1, 4 (Florida).)
Inventory searches are typically performed by police when vehicles are
impounded "[i]n the interests of public safety and as part of . . . 'community caretaking
functions.' " (South Dakota v. Opperman (1976) 428 U.S. 364, 368 (Opperman).)
"When vehicles are impounded, local police departments generally follow a routine
practice of securing and inventorying the automobiles' contents. These procedures
21 developed in response to three distinct needs: the protection of the owner's property
while it remains in police custody, [citation]; the protection of the police against claims
or disputes over lost or stolen property, [citation]; and the protection of the police from
potential danger." (Id. at p. 369.) "Whether 'impoundment is warranted under this
community caretaking doctrine depends on the location of the vehicle and the police
officers' duty to prevent it from creating a hazard to other drivers or being a target for
vandalism or theft.' " (People v. Williams (2006) 145 Cal.App.4th 756, 761 (Williams).)
To protect Fourth Amendment interests, inventory searches, and in particular the
opening of closed containers, must occur pursuant to "standardized criteria" or an
"established routine." (Florida, supra, 495 U.S. at p. 4; Williams, supra, 145
Cal.App.4th at p. 761.) The requirement of guidelines for police discretion insures that
inventory searches are not used as "a ruse for a general rummaging in order to discover
incriminating evidence." (Florida, at p. 4; Williams, at p. 761.)
22 C. Analysis
Smith concedes that the police properly impounded his motorcycle as part of their
community caretaking function. He contends that opening the locked compartment under
the passenger seat of his motorcycle was unnecessary and a pretext for an investigation of
criminal activity because the traffic investigator stated that the motorcycle would be
taken to a police storage yard. Accordingly, he claims the trial court erred when it denied
the motion and failed to exclude the methamphetamine recovered during the search. We
disagree.
Police inventory the contents of an impounded vehicle to document and secure
valuable items and thus protect the police against claims or disputes regarding lost or
stolen property. (Opperman, supra, 428 U.S. at p. 369.) Here, the traffic investigator
testified that an inventory search to record the existence of valuable items is normal
procedure for a towed vehicle and that such searches are documented by filling out a
standard form. The traffic investigator testified that his search was consistent with police
procedures, including a visual inspection and unlocking a storage compartment. These
facts amply support the trial court's findings that the traffic investigator performed a
required inventory search, that the search was not a pretext to look for contraband, and
not performing the search would have resulted in uncertainty whether the motorcycle
contained anything valuable.
The traffic investigator's use of the ignition key to unlock the storage compartment
makes the opening of this compartment akin to opening a car trunk, which is permissible.
(Colorado, supra, 479 U.S. at p. 375 [inventory search may extend to a car trunk and
23 closed containers located within the car].) The fact the motorcycle would be towed to a
police storage yard rather than a tow yard (a presumably less secure location), is a
distinction without a difference. Police may potentially be liable for lost or stolen items,
particularly valuables such as Smith's wallet, regardless of where the vehicle is stored.
Accordingly, the trial court reasonably concluded that the traffic investigator had
performed a lawful inventory search aimed at securing the motorcycle and its contents.
IV. ABILITY TO PAY
Smith contends that the trial court erred by imposing a $300 court facilities
assessment (Gov. Code, § 70373), a $10,000 restitution fine (Pen. Code, § 1202.4, subd.
(b)), and a stayed $10,000 parole revocation fine (Pen. Code, § 1202.45) without
determining his ability to pay. He contends that the issue is not forfeited because the trial
court made a legal error at sentencing, not a discretionary error, and it would have been
futile to object.
The minimum restitution fine for felony convictions is $300, and the maximum
fine is $10,000. (§ 1202.4, subd. (b)(1).) A trial court may consider inability to pay
when "increasing the amount of the restitution fine in excess of the minimum fine . . . ."
(§ 1202.4, subd. (c).) It is well established that a defendant forfeits a challenge to the
trial court's imposition of a restitution fine above the statutory minimum for failing to
consider his or her ability to pay if the defendant did not object in the trial court. (People
v. Nelson (2011) 51 Cal.4th 198, 227 [alleged erroneous failure to consider ability to pay
a $10,000 restitution fine forfeited by the failure to object]; People v. Avila (2009) 46
24 Cal.4th 680, 729 [forfeiture rule applies to claim that restitution fine amounted to an
unauthorized sentence based on inability to pay].)
Here, unlike the defendant in Dueñas, supra, 30 Cal.App.5th 1157, who created an
extensive record showing her inability to pay $220 in assessments and fines, Smith did
not object in the trial court on the grounds that he was unable to pay, even though the trial
court ordered him to pay the $10,000 statutory maximum restitution fine. (Id. at
pp. 1161-1163; People v. Castellano (2019) 33 Cal.App.5th 485, 490 ["Consistent with
Dueñas, a defendant must in the first instance contest in the trial court his or her ability to
pay . . . ."].) Accordingly, we conclude that Smith forfeited his challenges to the
assessment and fines. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033
[imposition of restitution fine above statutory minimum permitted consideration of ability
to pay and defendant's failure to object also forfeited ability-to-pay arguments as to other
imposed fines and fees].)
Finally, we reject Smith's contention that an objection would have been futile
because the holding in Dueñas "represent[ed] a dramatic and unforseen [sic] change in
the law governing assessments and restitution fines." Even assuming the validity of this
argument, trial courts are statutorily authorized to consider a defendant's "inability to
pay" any restitution fine above the statutory minimum. (§ 1202.4, subd. (d).) Because
the $10,000 restitution fine imposed is greater than the statutory minimum, it would not
have been futile for Smith to request an ability to pay determination. Thus, Smith's
failure to object to a $10,000 restitution fine is inexcusable, as is his failure to object to
the much smaller $300 assessment. (See People v. Frandsen (2019) 33 Cal.App.5th
25 1126, 1154 ["Given his failure to object to a $10,000 restitution fine based on inability to
pay, Frandsen has not shown a basis to vacate assessments totaling $120 for inability to
pay."].)
V. SENATE BILL NO. 136
The first amended information alleged that Smith served two prison terms after
suffering convictions for assault likely to cause great bodily injury (§ 245, subd. (a)(1))
and possessing a firearm (§ 12021.1, subd. (a)). The trial court found these two prison
priors true. Smith's sentence included consecutive one-year terms for each of the prison
priors.
Senate Bill No. 136 amended Penal Code section 667.5, subdivision (b) regarding
prior prison term enhancements. Former Penal Code section 667.5, subdivision (b)
imposed an additional one-year term for each prior separate prison term or county jail
felony term, except under specified circumstances. However, amended Penal Code
section 667.5, subdivision (b) imposes that additional one-year term only for each prior
separate prison term served for a conviction of a sexually violent offense as defined in
Welfare and Institutions Code section 6600, subdivision (b). (Pen. Code, § 667.5, subd.
(b).) "By eliminating [Penal Code] section 667.5, subdivision (b) enhancements for all
prior prison terms except those for sexually violent offenses, the Legislature clearly
expressed its intent in Senate Bill No. 136 . . . to reduce or mitigate the punishment for
prior prison terms for offenses other than sexually violent offenses." (People v. Jennings
(2019) 42 Cal.App.5th 664, 682.)
26 Because Smith served neither of his prior prison terms for a sexually violent
offense, his section 667.5, subdivision (b) enhancements are now unauthorized under the
amended statute. The parties agree that Senate Bill No. 136 applies to Smith because the
statute is retroactive and applies to all cases not yet final as of its effective date. (In re
Estrada (1965) 63 Cal.2d 740, 742; People v. Keene (2019) 43 Cal.App.5th 861, 865.)
Accordingly, the now-inapplicable enhancements under section 667.5, subdivision (b)
currently attached to Smith's sentence are stricken. (§ 1260 [granting appellate court
power to reduce punishment imposed].)
DISPOSITION
Smith's convictions on counts 1 through 5 are reversed. The matter is remanded
with directions that the trial court (1) strike the enhancements under section 667.5,
subdivision (b), and (2) resentence Smith. Following resentencing, the trial court is
directed to prepare an amended abstract of judgment and forward a certified copy of the
amended abstract to the Department of Corrections and Rehabilitation. In all other
respects the judgment is affirmed.
BENKE, Acting P. J. WE CONCUR:
HALLER, J.
DATO, J.