Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR145567
Margulies, Acting P.J.
Defendant Sidney Lea Greene pleaded guilty to possession of methamphetamine for sale following the denial of her motion to suppress evidence seized pursuant to a search warrant for a vehicle in which she was a passenger. On appeal, defendant claims the search warrant—authorizing the search and seizure of “any vehicles under the control of or occupied by” her—lacked sufficient particularity to meet constitutional requirements. In the alternative, defendant challenges the calculation of her presentence custody credits. We affirm the trial court’s ruling on the legality of the search, but we remand the case to the trial court for modification of the abstract of judgment in light of the 2009 amendments to Penal Code section 4019.
I. BACKGROUND
On April 10, 2009, City of Napa Police Officer John Corrigan stopped a vehicle in which defendant was a front-seat passenger. Officer Corrigan had a search warrant for defendant’s residence, person, and any vehicle under defendant’s control or occupied by her. Fellow agent McGlothern searched defendant. Three bags of suspected methamphetamine were discovered on her. A purse found on the passenger side of the vehicle contained indicia of defendant, a scale, money, and two additional bags of suspected methamphetamine.
Officer Corrigan is a narcotics agent with the Napa Special Investigations Bureau.
Defendant was charged by amended information with possession of methamphetamine for sale (Health & Saf. Code, § 11378; count one) and sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count two). The information further alleged defendant had prior convictions for sale and possession for sale of methamphetamine (Pen. Code, § 1203.07, subd. (a)(11); Health & Saf. Code, § 11370.2, subd. (b)), committed the alleged offenses while released on bail (Pen. Code, § 12022.1, subd. (b)), and was ineligible for probation (Pen. Code, § 1203.073, subd. (b)(2)).
Defendant moved to suppress the evidence seized from the vehicle pursuant to Penal Code section 1538.5, contending the warrant was overbroad and lacked particularity. The trial court denied the motion. Under a plea agreement preserving her right to appeal the denial of the motion, defendant thereafter pleaded guilty to possession for sale of methamphetamine (Health & Saf. Code, § 11378; count one) and admitted the related on-bail and prior conviction allegations. All remaining charges were dismissed on motion of the district attorney. This timely appeal followed.
II. DISCUSSION
Defendant contends (1) the trial court erred when it denied her Penal Code section 1538.5 motion to suppress evidence because the search warrant lacked sufficient particularity in the description of the vehicles to be searched; and, in the alternative, (2) she is entitled to a modified judgment increasing her presentence custody credits because the 2009 amendments to Penal Code section 4019 apply retroactively to all cases not final on its effective date.
A. Motion to Suppress Evidence
1. Standard of Review
“In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence.” (People v. Lenart (2004) 32 Cal.4th 1107, 1119.) However, “[w]hether the description in the warrant of the property to be seized is sufficiently definite is a question of law on which an appellate court makes an independent judgment.” (People v. Childress (1979) 99 Cal.App.3d 36, 42.) We review the warrant’s description of the property to be searched in a commonsense and realistic fashion, recognizing warrants are drafted by nonlawyers in the haste of a criminal investigation. (People v. Minder (1996) 46 Cal.App.4th 1784, 1788.) Technical requirements of elaborate specificity have no place in our analysis. (Ibid.)
2. Affidavit in Support of the Search Warrant
The search warrant affidavit included the following information:
On May 30, 2008, the affiant searched a hotel room in Vallejo occupied by defendant and another individual. In the search, the affiant located methamphetamine packaged for sale, over $12,000 in cash, and two firearms. Defendant was arrested and later posted bail. On March 31, 2009, the affiant spoke with a Vallejo police officer and learned Vallejo police had received information from informants about defendant selling methamphetamine in the Vallejo area. During the same week, the affiant spoke with a known confidential informant (hereafter CI 1) and learned when CI 1 met with defendant in a Fairfield hotel during the week of March 30, defendant was in possession of an amount of methamphetamine for sale. CI 1 also described the location of the hotel for the affiant, and the affiant located the hotel, confirming with the hotel clerk that defendant checked out the previous day.
Within seven days of the search in the instant matter, a different confidential informant (hereafter CI 2) provided more information to the affiant about the defendant. CI 2 told the affiant he/she had seen defendant in Napa in possession of an amount of methamphetamine for sale within the previous seven days. CI 2 also told the affiant defendant drives numerous different cars when selling methamphetamine to avoid police detection, CI 2 had seen defendant in as many as five different cars recently, and defendant uses others to drive her around when she sells methamphetamine. CI 2 told the affiant defendant dealt methamphetamine at all times of the day and night.
CI 1 and CI 2 both provided information to the affiant for possible consideration in pending criminal matters. Both informants were admitted felons and convicted drug users. Neither informant had been known to provide false or misleading information about drug dealers to law enforcement officials in the past.
According to the affiant, he had been present three times when defendant was arrested for possession of methamphetamine for sale—in 1991, 1999, and 2008. The affiant saw defendant in possession of methamphetamine packaged for sale on each occasion. Based on his training and experience, the affiant knew methamphetamine dealers commonly keep methamphetamine at residences, in their vehicles, and on their person. In addition, the affiant stated that dealers keep scales, packaging material, and cutting agents in their vehicles and on their person when transporting methamphetamine for resale.
3. The Defendant’s Particularity Argument
Defendant contends the search warrant is invalid because it is too general and does not state with particularity the type of vehicles to be searched. Specifically, defendant asserts the search warrant offers too much discretion to the police officers because it authorizes wholesale search and seizure of an entire category of items—vehicles occupied by defendant—without evidence of wrongdoing. Defendant further insists that because a more precise description of the vehicles was possible—based on the five cars CI 2 reported seeing—the warrant lacked particularity. (See People v. Tockgo (1983) 145 Cal.App.3d 635, 640.)
4. The Search Warrant is Sufficiently Particular
Both the United States and California Constitutions require items seized under a search warrant to be described with particularity. (Bay v. Superior Court (1992) 7 Cal.App.4th 1022, 1025 (Bay).) “Under the Truth-in-Evidence provision of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)), federal constitutional standards govern review of issues related to the suppression of evidence seized by the police. [Citation.]” (People v. Rege (2005) 130 Cal.App.4th 1584, 1588.) Thus, “[i]n evaluating whether the fruits of a search or seizure should have been suppressed, we consider only the Fourth Amendment’s prohibition on unreasonable searches and seizures.” (People v. Brendlin (2008) 45 Cal.4th 262, 268.)
The Fourth Amendment to the United States Constitution states: “[N]o 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.” The Fourth Amendment’s particularity requirement means the warrant must clearly state what is sought. (In re Grand Jury Subpoenas Dated Dec. 10, 1987 (9th Cir. 1991) 926 F.2d 847, 856 (In re Grand Jury Subpoenas).) Its purpose is to safeguard against undefined general searches: “By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches.” (Maryland v. Garrison (1987) 480 U.S. 79, 84.) A description in a warrant must be specific enough to enable the person conducting the search reasonably to identify the things authorized to be seized. (United States v. Spilotro (9th Cir. 1986) 800 F.2d 959, 963 (Spilotro).)
In determining whether the particularity requirement is satisfied, courts have concentrated on one or more of the following criteria: “(1) whether probable cause exists to seize all items of a particular type described in the warrant [citations]; (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not [citations]; and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.” (Spilotro, supra, 800 F.2d at p. 963; see also Bay, supra, 7 Cal.App.4th at p. 1026.) Based on these criteria, the instant warrant is sufficiently particular.
First, probable cause supported seizing any vehicle defendant occupied or controlled. Two informants provided corroborated information that defendant was in the Napa area selling methamphetamine the week of her arrest. One informant reported defendant “drives numerous different cars when selling methamphetamine to avoid detection from the police and she/he ha[d] seen [defendant] in as many as five different cars, recently.” The same informant stated defendant “will also use others to drive her around when she is selling methamphetamine.” The affiant stated dealers keep methamphetamine and other evidence in their vehicles and on their person when engaged in methamphetamine sales. Based on the evidence defendant had a practice of varying the vehicles she used for methamphetamine sales to thwart police detection, probable cause existed to seize “any vehicles under the control of or occupied by” defendant.
Next, the warrant did provide an objective standard differentiating items subject to seizure from those that were not. It authorized search of “any vehicles under the control of or occupied by” defendant. Defendant’s presence or lack of presencein the vehicle provided an entirely adequate objective standard for differentiating vehicles subject to seizure from those that were not. Whether defendant was present in the vehicle could be readily ascertained before any search of the vehicle was conducted. In fact, since only one vehicle at a time met the criteria established by the warrant it could not have been any more particular. The warrant excluded many other vehicles that might have drawn the attention of police, such as vehicles belonging to defendant’s friends, family, and associates when she was not present in them, vehicles parked at or near her residence over which she exercised no control, or vehicles occupied by others with whom she spoke, or in which she placed possessions. A warrant of this nature does not present particularity issues because it applies to only one vehicle at a time, and defendant’s presence in the vehicle supplies an objective, bright-line standard for distinguishing that vehicle from all others.
Finally, the investigating officers were not in a position to describe the items to be searched with any more particularity in light of the information available to them at the time the warrant issued. The affiant stated defendant drives “numerous different cars” when selling methamphetamine to avoid police detection, and CI 2 had seen defendant in as many as five different cars. Under these facts, there was no way to anticipate the type of vehicle defendant might be using to engage in methamphetamine sales. Defendant’s suggestion the warrant specify the five cars CI 2 had seen was not practical. First, there is no indication CI 2 was able to describe any of the five cars with sufficient specificity. Second, even if CI 2 could describe those particular cars, the probable cause affidavit showed defendant had a practice of using numerous different cars to avoid detection. If so, evidence of her criminal activity was less likely to be found in one of the five cars defendant used in the past than in a new car she had not previously used for drug dealing.
Defendant’s suggestion that the warrant could have authorized “the seizure of ‘any vehicles, occupied by [her], relating to the transportation of a controlled substance’ ” is also impractical. As the affidavit to the search warrant demonstrates, it is the very fact defendant is in the vehicle that created probable cause to believe the vehicle is “ ‘relat[ed] to the transportation of a controlled substance.’ ” Defendant’s proposal would require something over and above probable cause—independent evidence a specific automobile was being used to transport methamphetamine, obtained before stopping and searching it. Such a requirement would have made it virtually impossible to obtain an effective warrant in the first place. By the time the police had gathered the necessary evidence and applied for a warrant covering one vehicle, defendant would be using another. If the police did have independent probable cause to believe a particular vehicle occupied by defendant was being used to transport methamphetamine, a warrant would not have been required to stop and search it. (See Maryland v. Dyson (1999) 527 U.S. 465 (per curiam).) Given its intended purpose of defeating defendant’s efforts to evade detection and arrest, the warrant was as particular as the information available to the officers permitted.
In short, the warrant satisfies all of the particularity criteria discussed in Spilotro and Bay.
We draw further support for our conclusion from cases wherein language nearly identical to the instant warrant was held constitutionally valid. In People v. Sanchez (1981) 116 Cal.App.3d 720 (Sanchez), the warrant authorized searching “ ‘any vehicle under [the defendant’s] control or occupied by [him]....’ ” (Id. at p. 725.) The court held this language was not overbroad because “[t]he affidavit submitted by [an informant] clearly provided probable cause for the issuing magistrate to believe that [the defendant]... would be transporting the contraband either in one of his own vehicles, or in one he had borrowed.” (Id. at pp. 727–728.) In State v. Iwatate (2005) 108 Haw. 361 (Iwatate), the warrant authorized searching “ ‘[a]ny personal, rental or borrowed vehicle that [the defendant] is operating or occupying, including any compartments of that vehicle.’ ” (Id. at p. 363.) The court held this language was sufficiently particular and was not overbroad given probable cause that the defendant “ ‘would be in possession of [methamphetamine], and would be transporting it in any number of different vehicles in which he was either the operator or an occupant.’ ” (Id. at p. 369.)
Defendant seeks to distinguish Sanchez on the grounds Sanchez deals with an overbreadth claim whereas she is challenging the subject warrant’s lack of particularity. We are not persuaded. It is true particularity and overbreadth are distinct. “Particularity is the requirement that the warrant must clearly state what is sought. [Citation.] Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based.” (In re Grand Jury Subpoenas, supra, 926 F.2d at pp. 856–857.) However, as shown by Spilotro, the two concepts are closely related because the existence of probable cause is one of the prime factors courts have looked at in deciding particularity challenges. (Spilotro, supra, 800 F.2d at p. 963; see also United States v. Christine (3d Cir. 1982) 687 F.2d 749, 758 [particularity and probable cause requirements are “inextricably intertwined”].) We note defendant herself injects an overbreadth/probable cause issue into the case by claiming the warrant “provided no guideline to distinguish other vehicles [defendant might occupy] from those the police had probable cause to seize.” As discussed earlier, and as Sanchez and Iwatate confirm, the police had probable cause to search any vehicle she occupied.
We also disagree with defendant’s suggestion that Iwatate, a particularity case, is nonetheless distinguishable because it relied on Sanchez. Defendant confuses the trial court’s decision in Iwatate, quoted extensively in the appellate opinion, with the reasoning of the Hawaii appellate court itself. The latter did not rely on Sanchez. (See Iwatate, supra, 108 Haw. at pp. 364, 366, 369.) In any event, we find both Sanchez and Iwate indistinguishable on their facts, and highly relevant to defendant’s arguments on this appeal.
For these reasons, we find no error in the trial court’s denial of defendant’s motion to suppress.
We need not address the Attorney General’s arguments that (1) discovery of the contraband was inevitable or (2) the good faith exception to the exclusionary rule applies. Since the inevitability argument was not presented at the suppression hearing at trial, the People may not raise it for the first time on appeal. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640.) Because we find the warrant met constitutional requirements, we need not determine whether the good faith exception applies. (See People v. Amador (2000) 24 Cal.4th 387, 397–398.)
B. Penal Code Amended Section 4019
Penal Code section 4019 provides the method for calculating the credit to which a criminal defendant is entitled against his or her term of imprisonment for good behavior and work performance while in local custody prior to imposition of sentence. In 2009, the Legislature doubled these credits in an effort to reduce the state’s expenses of incarceration. (Stats. 2009–2010, 3d Ex. Sess., ch. 28, § 50, pp. 5270–5271.) The court sentenced defendant on August 28, 2009. Penal Code amended section 4019 took effect January 25, 2010. (Pen. Code, § 4019.) Because the legislation had not taken effect at the time of her sentencing, defendant was not afforded the benefit of Penal Code amended section 4019 when judgment was entered.
There is no dispute, however, defendant is entitled to a doubling of her work and conduct credits if the amendments to Penal Code section 4019 are retroactive, as she contends they are, because her conviction was not final at the time the amendments became effective on January 25, 2010. Whether the amendments apply retroactively to judgments not yet final on their effective date has been the subject of a number of conflicting published decisions from the Courts of Appeal, and the issue is now before our Supreme Court. At least two divisions of our own district have recently held the amendments should be applied retroactively, reasoning section 4019, as amended, is an amendatory statute that mitigates punishment and therefore must be given retroactive effect under In re Estrada (1965) 63 Cal.2d 740, unless the Legislature has clearly indicated otherwise. While we cannot cite those decisions because they have been accepted for review, we find their reasoning persuasive. Accordingly, we hold that Penal Code amended section 4019 applies to the calculation of defendant’s presentence custody credits, entitling her to two days of work and conduct credits for every two days she spent in local custody.
III. DISPOSITION
We remand the matter to (1) correct the amended abstract of judgment to reflect 141 days of actual local time spent in custody and 140 days of work and conduct credits for a total of 281 days of presentence custody credit, and (2) forward a certified copy of the abstract of judgment so amended to the Department of Corrections and Rehabilitation. In all other aspects, we affirm the judgment.
We concur: Dondero, J., Banke, J.