Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS073389
McAdams, J.
Defendant Diego Legaspi appeals from a judgment of conviction after a jury convicted him of one count of transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a), a felony), one count of possession of cocaine base (id., § 11350, subd. (a), a felony), and one count of possession of drug paraphernalia (id., § 11364, a misd.). During trial, defendant pleaded no contest to one count of driving on a suspended license (Veh. Code, § 14601.2, subd. (a), a misd.).
In a bifurcated proceeding, the trial court found true enhancement allegations that defendant had one prior conviction for transportation of cocaine base (Health & Saf. Code, § 11352, subd (a)), that defendant had one prior conviction that qualified as a strike under the Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12); and that defendant had served a prior prison term (§ 667.5, subd. (b)). On the prosecution’s motion, the court dismissed allegations that defendant had suffered two other prior prison terms.
All further statutory references are to the Penal Code unless otherwise indicated.
The court sentenced defendant to 12 years in prison, calculated as follows: the four-year midterm on count 1 (transportation of cocaine base), doubled because of the strike prior, plus three years for the prior conviction for transportation of cocaine base, and one year for the prior prison term. The court imposed and then stayed the sentence on count 2 (possession of cocaine base) pursuant to section 654, imposed concurrent six-month sentences on each of the misdemeanor counts, and gave defendant credit for time served on the misdemeanors.
On appeal, defendant contends that the trial court erred when it denied his motion to suppress evidence obtained from a search of his anal cavity, which was conducted at the time of booking, because the search was unreasonable under the Fourth Amendment and violated his right to due process under the Fourteenth Amendment. Defendant contends that the court erred when it ordered him to pay a court facilities fee of $90 because it misinterpreted Government Code section 70373. Defendant argues that the abstract of judgment must be corrected to conform to the court’s oral pronouncement of judgment with regard to the sentence on count 2 (drug possession) and the amount of the restitution fines and that it must be amended to specify the penalty assessments added to the laboratory fee and the drug program fee. Defendant also asserts that the court erred in calculating his custody credits. The Attorney General agrees that the abstract of judgment must be corrected with regard to the sentence on count 2 and the restitution fines and that the court erred in calculating defendant’s custody credits. We conclude that the magistrate did not err when it denied the motion to suppress and that the court correctly imposed a $90 court facilities fee. We will accept the Attorney General’s concession with regard to the errors in the abstract of judgment, order the abstract corrected, and affirm the judgment.
The facts are based on the testimony of Officer Kevin Miller at the combined preliminary hearing/hearing on defendant’s motion to suppress evidence and the video recording of the search at issue, which was in evidence at that hearing and later proceedings. Because the facts developed at trial were not before the court on the motion to suppress, we do not summarize them.
1. Traffic Stop
At 4:50 p.m. on December 18, 2007, Seaside Police Officer Kevin Miller was monitoring traffic at a three-way stop when he observed defendant driving a car with its stereo playing too loudly in violation of Vehicle Code section 27007. Officer Miller recognized defendant from a traffic stop two months before when Officer Miller and two other officers arrested defendant for driving on a suspended license. At that time, defendant was on parole.
Officer Miller conducted a traffic stop for the music infraction and on suspicion that defendant still had a suspended license. Officer Miller asked defendant for his license, registration and proof of insurance. Initially, defendant said he did not have his driver’s license and had left it at a friend’s house. Officer Miller did not believe defendant. He told defendant that he recalled that defendant’s license was suspended and asked defendant whether he had a license. Defendant admitted that his license was still suspended.
Officer Miller asked defendant if he was on parole. Defendant said he was on parole, that his parole officer was trying to contact him, and that he was avoiding his parole officer. Officer Miller contacted the dispatcher, who reported that defendant had no outstanding warrants and that defendant’s license was suspended. Back-up Officers Filice and Fernandez arrived. They searched defendant’s car, while Officer Miller conducted a “parole compliance search” of defendant’s person. When Officer Miller told defendant that he was going to search him, defendant told the officer that he had a pipe in his pocket. Officer Miller found a “cocaine base smoking pipe” (crack pipe) in defendant’s front pants pockets. The officers did not find any controlled substances on defendant’s person or in the car.
Officer Miller placed defendant in his patrol car, called the parole department, and reported the crack pipe. The person he spoke with said the department would issue a parole hold for defendant.
Officer Miller took defendant to the police department. When Officer Miller spoke to the officers involved in defendant’s arrest two months before, they told him defendant had a history of narcotics offenses. Officer Miller reviewed defendant’s “rap sheet,” which showed prior convictions for narcotics offenses. In Officer Miller’s experience, narcotic users hide narcotics in their underwear or between the cheeks of their buttocks, places where drugs will not be easily found during a pat search.
Defendant was convicted of felony possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) in September 1995 and December 1996 (with incident dates in November 1994, August 1996, and October 1996), possession of paraphernalia (id., at § 11364) three times in 1996 (with incident dates in February 1996, May 1996, and October 1996), and two counts of transportation of a controlled substance in September 2002. His criminal history dates back to 1986 and includes 27 misdemeanor convictions for a variety of offenses, including carrying a loaded firearm, trespass, battery, violating a protective order, vandalism, exhibiting a firearm in a threatening manner, battery on a cohabitant, carrying a concealed weapon, resisting arrest, theft, driving under the influence, and driving on a suspended license. In addition to his drug-related felony convictions, defendant has felony convictions for carrying a loaded firearm in 1994 and dissuading a witness in 2001. He has been incarcerated, on probation supervision, or on parole almost continuously since March 1986.
II. Strip Search
Based on defendant’s history and the officer’s experience, Officer Miller obtained written permission from his shift supervisor, Sergeant Guth, to strip search defendant before placing him in the jail. The parties stipulated that no search warrants or arrest warrants had issued.
Officer Miller testified that in a typical strip search of a male suspect, the officers have the suspect take off his clothing item by item. The officers ask male suspects (1) to lift up their testicles and (2) to spread their buttocks cheeks with their hands and bend forward. The officers do not usually touch the suspect. The officers observe to see if anything is released when the suspect makes those movements.
The strip search in this case was done in the booking cell at the Seaside Police Department in an area that is not open to the public. Only law enforcement personnel were present. Officer Miller testified that the booking cell was a seven-foot by seven-foot concrete room. There is a concrete bench at one end that runs the entire width of the cell. There is a window covered by a metal grate on the wall opposite the cell door. On the other side of that wall is an office that the officers use to fill out booking forms, which we shall refer to as the “booking office.” There is a slot in the window between the booking cell and the booking office. In this case, the officers passed items through the slot to an employee in the booking office.
The evidence in this case includes a video recording (video) of the search. The video contains a visual image of what occurred during the search. The record suggests that the video contains an audio portion. However, the audio portion of the video is inaudible on the copy lodged with the court. Hence, we do not know what the officers and defendant said to one another.
Officer Miller testified that the following five officers were present during the strip search: Officer Miller, Officer Fernandez, Officer Reynaga, Corporal Carlin, and Sergeant Guth. Officer Miller later testified that there were five or six officers present. The strip search was conducted primarily by Officer Miller and Officer Fernandez. Officer Miller testified that Officer Reynaga stood behind them or in the doorway. The video reveals that initially, Officer Reynaga stood in the doorway of the cell and two other officers stood by outside the cell, in the hall. As the search progressed, Officer Reynaga stepped into the cell and one or both of the other officers in the hall stepped into the doorway, depending on the activity inside the cell. When defendant started to resist the officer’s efforts to complete the search, the fourth officer stepped into the cell and the fifth officer stepped into the doorway.
Officer Miller asked defendant to remove his clothing item by item; starting with his sweatshirt, then his shoes, socks, T-shirt, pants, and underwear. Defendant handed each item of clothing to Officer Miller, who inspected it or handed it to Officer Fernandez for inspection. When they got to defendant’s underwear, defendant refused to pull down his underwear. Instead, he sat on the bench and crossed his arms over his chest. Officer Miller became suspicious that defendant was hiding something, based on defendant’s demeanor and the officer’s experience. Defendant stood up, pulled his underwear halfway down, lifted his testicles, and then pulled his underwear back up quickly.
Officer Miller asked defendant several more times to remove his underwear. The video reveals that defendant lowered his underwear a second time, made a circle in front of the officers, pulled his underwear right back up, and crossed his arms over his chest. He lifted his right hand as if counting off the reasons why he was not going to strip, then crossed his arms over his chest again.
According to Officer Miller, defendant did not comply until the sergeant came in and convinced defendant to remove his underwear completely. However, when Officer Miller asked defendant to turn around and spread the cheeks of his buttocks, defendant refused.
On the video, defendant dropped his underwear to the floor, turned around and showed his backside to the officers. He grabbed the cheeks of his buttocks, but refused to bend over to allow the officers to view the area. Officer Miller testified that although defendant pulled his buttocks cheeks apart to some degree, it was insufficient for the officer to visually inspect the area. Defendant turned around, faced the officers, put his hands behind his back, and spoke. The officers continued talking to defendant. Defendant turned around and exposed his back side to the officers. Defendant squatted quickly, stood back up, and turned his body one quarter of the way towards the officers. Defendant turned around and faced the officers again, with his hands behind his back. He talked to the officers, shook his head, and looked at the floor. Officer Miller testified that defendant refused to spread his buttocks cheeks so the offers could visually inspect the area.
Officer Miller and Officer Fernandez moved toward defendant. Officer Miller grabbed both of defendant’s arms, Officer Fernandez grabbed defendant’s right elbow, and they tried to bend him over so they could look at the area between his buttocks cheeks. According to Officer Miller, defendant “tensed up” and tried to keep his back rigid. This made Officer Miller more suspicious that there might be contraband.
Officer Miller and Officer Fernandez bent defendant over. Officer Miller took one of his hands, spread defendant’s buttocks cheeks apart, and visually inspected the area. Officer Miller saw a plastic bag protruding about one inch from defendant’s anus. Officer Miller grabbed the visible portion of the baggie with his thumb and forefinger and pulled it out of defendant’s anus. He did not digitally penetrate defendant’s anus.
The baggie contained three “rocks” that tested positive for cocaine. Officer Miller testified that it was a usable amount.
Procedural History
Defendant was charged by complaint with transportation of cocaine base, possession of cocaine base, possession of drug paraphernalia, and driving on a suspended license.
1. Motion to Suppress
In February 2008, defendant filed a motion to suppress the drug evidence obtained during the strip search. Defendant’s motion to suppress was heard in conjunction with the preliminary examination. Defendant argued that the intrusiveness of the strip search and body cavity search in this case shocks the conscience and violated his Fourth and Fourteenth Amendment rights. He argued that misdemeanor possession of a crack pipe was not a valid basis for conducting a strip search. Defendant characterized the search as a “physical body cavity search” that requires a warrant under section 4030. Defendant argued that once the officers observed the plastic protruding from defendant’s anus, they should have asked defendant to remove it and if defendant refused, they should have obtained a warrant. He also argued that the search was not justified by his status as a parolee. The prosecution argued that this was a visual body cavity search under section 4030 and that defendant’s refusal to comply with the search procedure required the minimal intrusion that occurred here.
Section 4030 defines a “strip search” as “a search which requires a person to remove or arrange some or all of his or her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks, or genitalia of such person.” (§ 4030, subd. (c).) The statute distinguishes between “physical” body cavity searches and “visual” body cavity searches. For the purpose of section 4030, a “ ‘[b]ody cavity’ only means the stomach or rectal cavity of a person, and vagina of a female person.” (§ 4030, subd. (d)(1).) A “ ‘[v]isual body cavity search’ means visual inspection of a body cavity” and a “ ‘[p]hysical body cavity search’ means physical intrusion into a body cavity for the purpose of discovering any object concealed in the body cavity.” (§ 4030, subd. (d)(2), (3).)
The magistrate “looked closely at the conduct of the officers, the manner in which they spoke, the physical location of the officers, the number of officers, how the officers reacted to the Defendant, how the Defendant reacted to the officers.” The magistrate found “that the Baggie was removed with the thumb and forefinger, holding on to the outside of the bag only, and that there was no digital penetration. And the significance of that particular finding is that we also know that a warrant is not required before a visual cavity search may be conducted.” The magistrate also found that initially defendant was “uncooperative” and attempted “to prevent the visual view of this particular item,” that defendant “knew that that item was there and that it was going to be discovered... if the officers were allowed to look into that particular area.” Acknowledging that the process is “very awkward” and undignified, the magistrate found no section 4030 violation and concluded that, for the purposes of the Fourth Amendment, the officers “acted appropriately in that particular situation, tried to do it in a minimal manner” and that they were “justified in following up and trying to locate” the drugs. The magistrate found that the search was reasonable under the totality of the circumstances and denied the motion to suppress.
II. Motion to Set Aside the Information
After the information was filed, defendant filed a motion to set aside the information (§ 995) in which he renewed his arguments on the motion to suppress and asked the court to review the legal conclusions of the magistrate under section 1538.5, subdivision (i). Defendant argued that the search was a “physical body cavity search” within the meaning of section 4030 because it involved removing an object from a body cavity. Defendant asserted that the police violated several of the provisions in section 4030 because they conducted a physical body cavity search without a warrant (subd. (h)), the physical body cavity search was not done by a medical practitioner under sanitary conditions (subd. (k)), and because the search was not done in a private area where it could not be observed by persons who were not participating in the search (subd. (m)). Defendant argued that the search violated constitutional standards because the cell door was open and five or six officers were present, three of whom he contended did not participate in the search. Defendant asserted the search was overly intrusive because it was an “internal” body cavity search and that the officers did not have the right to grab defendant and bend him over. He argued that Officer Miller violated subdivision (j) of the statute when he touched defendant’s buttocks and that when Officer Miller pulled on the baggie, he had no idea what he was pulling out and could have caused serious injury. Defendant acknowledged the holding of People v. Wade (1989) 208 Cal.App.3d 304 (Wade) that a violation of section 4030 does not require suppression, but argued that section 4030 states policies to be considered by the court in determining whether a search is constitutional.
The court concluded that the magistrate made the following factual findings that were binding on the court: (1) there was probable cause for the stop based on the loud music and the fact that defendant was driving on a suspended license and was on parole; (2) a valid parole search led to the discovery of drug paraphernalia; (3) defendant was arrested and placed on a parole hold; (4) based on these facts and defendant’s prior drug activity, Officer Miller got permission to do a strip search; (5) during the search, defendant was both cooperative and uncooperative; and (6) the officer observed a plastic baggie protruding from defendant’s anus, removed the baggie by pulling on it, did not insert anything into the anus, and did not touch defendant’s anus.
After discussing the relevant case law, the court concluded that removing the baggie from defendant’s anus was not a physical body cavity search within the meaning of section 4030. The court applied a balancing test to determine whether the manner and method of the seizure shocks the conscience and found that the body search here “was brief, nonviolent, minimally intrusive and not conducted in a grossly offensive manner.” The court explained that “such searches are routinely used for inmates in penal facilities across the country, and the relatively minor intrusion is balanced against the public’s strong interest in combating narcotics use, and the fact that the contraband was visible and retrieved without actual physical invasion of a body cavity....” The court held that the search did not violate defendant’s federal constitutional rights and denied defendant’s motions to suppress the drug evidence and to dismiss the drug charges.
III. Writ Petition & Petition for Review
This court summarily denied defendant’s petition for writ of prohibition/mandate challenging the trial court’s ruling on the motion to set aside the information. (People v. Legaspi (June 23, 2008, H032969).) Defendant subsequently filed a petition for review in the California Supreme Court, which was also denied. (People v. Legaspi (Aug. 15, 2008, S164839).)
Discussion
I. Motion to Suppress Results of Body Cavity Search
Defendant contends that the strip search was unreasonable and violated his federal constitutional rights because the intrusiveness of the search outweighed the “necessity for conducting it.” Since he was on parole, he does not contend that the search was unreasonable because it was conducted without a warrant. He argues instead that the search was unreasonable based on the number of officers present, the officers’ failure to comply with the requirements of section 4030, and the lack of reasonable suspicion that he had secreted drugs on his person.
A. Standard of Review
On appeal from the trial court’s ruling on a motion to suppress, the reviewing court “uphold[s] any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness.” (People v. Hughes (2002) 27 Cal.4th 287, 327.) This means that we must measure the facts, as found by the trial court, against the constitutional standard of reasonableness for the search and/or seizure. (People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224.) “We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure.” (People v. Miranda (1993) 17 Cal.App.4th 917, 922.) We will affirm the trial court’s ruling if correct on any theory of applicable law. (People v. Zapien (1993) 4 Cal.4th 929, 976.) Further, we examine the legal issues surrounding the potential suppression of evidence derived from a police search and seizure by applying federal constitutional standards. (People v.Robles (2000) 23 Cal.4th 789, 794.)
When a suppression motion is raised before a magistrate judge in conjunction with a preliminary hearing, as was the case here, the magistrate acts as the trier of fact. (People v. Laiwa (1983) 34 Cal.3d 711, 718, superceded by statute on another ground as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223.) When the matter is raised a second time in the superior court on the basis of the preliminary hearing transcript, the superior court is bound by the magistrate’s factual findings and must accept them so long as they are supported by substantial evidence. (People v. v. Ramsey (1988) 203 Cal.App.3d 671, 679.) On appeal, the appellate court disregards the ruling of the superior court and directly reviews the decision of the magistrate; it reviews the magistrate’s factual findings to determine whether they are supported by substantial evidence but independently reviews the magistrate’s determination that the search did not violate the Fourth Amendment. (Laiwa, at p. 718.)
B. Governing Legal Principles
We begin by reviewing state law. Section 4030 “establish[es] a statewide policy strictly limiting strip and body cavity searches” of pre-arraignment detainees who, like defendant, are arrested for infractions or misdemeanors. (§ 4030, subd. (a).) As noted previously, section 4030 distinguishes between visual body cavity searches and physical body cavity searches. The pertinent statutory definitions are set forth at footnote 4 of this opinion. The statute’s provisions limiting strip searches and body cavity searches are set forth in the margin.
Section 4030 provides in relevant part: “(f) No person arrested and held in custody on a misdemeanor or infraction offense, except those involving weapons, controlled substances or violence..., shall be subjected to a strip search or visual body cavity search prior to placement in the general jail population, unless a peace officer has determined there is reasonable suspicion based on specific and articulable facts to believe such person is concealing a weapon or contraband, and a strip search will result in the discovery of the weapon or contraband. No strip search or visual body cavity search or both may be conducted without the prior written authorization of the supervising officer on duty. The authorization shall include the specific and articulable facts and circumstances upon which the reasonable suspicion determination was made by the supervisor. [¶]... [¶] (h) No person arrested on a misdemeanor or infraction offense,..., shall be subjected to a physical body cavity search except under the authority of a search warrant issued by a magistrate specifically authorizing the physical body cavity search. [¶]... [¶] (j) Persons conducting a strip search or a visual body cavity search shall not touch the breasts, buttocks, or genitalia of the person being searched. [¶] (k) A physical body cavity search shall be conducted under sanitary conditions, and only by a physician, nurse practitioner, registered nurse, licensed vocational nurse or emergency medical technician Level II licensed to practice in this state. Any physician engaged in providing health care to detainees and inmates of the facility may conduct physical body cavity searches. [¶] (l) All persons conducting or otherwise present during a strip search or visual or physical body cavity search shall be of the same sex as the person being searched, except for physicians or licensed medical personnel. [¶] (m) All strip, visual and physical body cavity searches shall be conducted in an area of privacy so that the search cannot be observed by persons not participating in the search. Persons are considered to be participating in the search if their official duties relative to search procedure require them to be present at the time the search is conducted.”
In Wade, the court observed that although section 4030 contains civil and criminal remedies for violations of its provisions, it does not include an exclusionary remedy, and held that a violation of its standards does not provide a basis for suppressing evidence. (Wade, supra, 208 Cal.App.3d at p. 308.) The court stated, “[N]owhere has the Legislature provided for suppression of evidence obtained without section 4030 compliance, although it certainly knows how to create an exclusionary rule when it so intends. (See, e.g.,... § 631, subd. (c).) And in this post-Proposition 8 era, absent such a pronouncement by the Legislature, state courts are powerless to suppress evidence unless federal law so requires.” (Ibid., citing People v. West (1985) 170 Cal.App.3d 326, 330-331.) Defendant acknowledges this holding from Wade and argues, as he did below, that the provisions of section 4030 are relevant in determining the reasonableness of the search under federal law. We therefore discuss federal standards governing body searches.
As the California Supreme Court explained in People v. Scott (1978) 21 Cal.3d 284, “The Fourth Amendment prohibits all ‘unreasonable’ searches, whether conducted pursuant to a warrant or not. [Citation.] ‘Reasonableness’ is determined by balancing ‘ “the need to search... against the invasion which the search... entails.” ’ [Citations.] The human body is not, of course, a sanctuary in which evidence may be concealed with impunity. [Citation.] Appropriate procedures to retrieve such evidence are neither ‘unreasonable’ per se under the Fourth Amendment, nor violations of ‘due process’ procedures guaranteed by the Fifth and Fourteenth Amendments. [Citations.] [¶] On the other hand, [California and United States Supreme Court cases] have made clear that the circumstances which permit penetrations beyond the body’s surface are particularly limited, since such intrusions may readily offend those principles of dignity and privacy which are protected by the Fourth Amendment. The requirement that penetrations of the body be founded on strong showings of need [is] in large measure applicable equally to searches with and without a warrant.” (Id. at pp. 292-293.)
In Bell v. Wolfish (1979) 441 U.S. 520 the United States Supreme Court explained: “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” (Id. at p. 559 [holding that the practice of conducting visual body cavity searches of inmates following contact visits did not violate the Fourth Amendment].)
We note also that defendant’s status as a parolee does not completely eradicate his Fourth Amendment right to be free from unreasonable searches. (See U.S. v. Kincade (9th Cir. 2004) 379 F.3d 813, 835.) However, defendant’s status as a parolee is sufficient to sustain even suspicionless searches of his person, as long as “such searches meet the Fourth Amendment touchstone of reasonableness as gauged by the totality of the circumstances.” (Ibid.)
As the court observed in Wade, “[u]se of the federal exclusionary rule has been discussed in scores of cases involving physical searches. For example, in Rochin v. California (1952) 342 U.S. 165..., the Supreme Court emphasized the importance of a case-by-case balancing test to determine whether an invasion into a suspect’s body ‘shocks the conscience’ [citation] or involves ‘methods too close to the rack and the screw to’ be tolerated. [Citation.] There, officers forcibly entered the defendant’s bedroom, jumped on him in an unsuccessful effort to force expectoration of morphine capsules he swallowed, and finally retrieved the contraband by having his stomach pumped at a hospital. The court determined this episode offended ‘even hardened sensibilities’ and suppressed the evidence. [Citation.] In Winston v. Lee (1985) 470 U.S. 753..., the court concluded a proposed surgery under general anesthesia to remove a bullet from the defendant’s chest without his consent would not be tolerated. The decision set forth various factors which should be considered, including ‘the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity’ and ‘the community’s interest in fairly and accurately determining guilt or innocence.’ ” (Wade, supra, 208 Cal.App.3d at pp. 308-309.)
C. Analysis
Defendant argues that balancing the factors set forth in Bell v. Wolfish, the search in this case was unreasonable and violated his Fourth and Fourteenth Amendment rights. In particular, he contends that the search was unjustified and unreasonable because (1) there was no reasonable suspicion that he had secreted drugs on his person, (2) too many officers were present, (3) the cell door was open the entire time, and (4) Officer Miller touched his buttocks.
Here, there was reasonable suspicion that supported Officer Miller’s request to conduct a visual body cavity search. Defendant was a parolee with multiple prior felony convictions for possession and transportation of controlled substances. Officer Miller found a used crack pipe in defendant’s pocket and reviewed defendant’s criminal history before requesting permission to search. He also testified that in his experience narcotics users “will hide narcotics in their underwear, between the cheeks of their buttocks, under their armpits, any place that’s [sic] not going to be easily found.”
“When a person is lawfully arrested... post-arrest searches of the body to discover... controlled substances are generally permissible.” (Salinas v. Breier (7th Cir. 1982) 695 F.2d 1073, 1083.) “The rationale for this rule is several-fold: Retrieval of concealed contraband preserves evidence, prevents the import of illegal substances into a penal facility, and also guards against accidental overdosing by the individual ingesting or secreting the drugs.” (Wade, supra, 208 Cal.App.3d at p. 308.) Given the circumstances of this case, there was reasonable suspicion to conduct a visual body cavity search.
Defendant contends that even if there was reasonable suspicion to conduct the search, any such suspicion “dissipated once [Officer] Miller saw nothing in [defendant’s] anal cavity after [defendant] voluntarily spread his own buttocks cheeks and squatted down.” To conduct a visual search of defendant’s anus, the officers asked defendant to spread the cheeks of his buttocks and bend over, not squat down. Although defendant spread his buttocks, he did so only part way without bending over and his actions did not allow the officers to view the area in question. Likewise, squatting down did not allow the officers to view his anus. We therefore reject the contention that defendant’s actions during the search dissipated any reasonable suspicion that he had secreted drugs on his person.
Defendant argues that the search was unreasonable because five or six officers witnessed it. He argues that it was unnecessary to have that many officers present and that two officers would have been enough, but acknowledges that a third officer assisted briefly in getting defendant to bend over. He also complains that the search was unreasonable because the cell door was open and people could observe the search from the window between the booking cell and the booking office. Defendant relies on section 4030, subdivision (m), which provides that “[a]ll strip, visual and physical body cavity searches shall be conducted in an area of privacy so that the search cannot be observed by persons not participating in the search. Persons are considered to be participating in the search if their official duties relative to search procedure require them to be present at the time the search is conducted.” Defendant argues that several officers who did not participate in the search observed the search. He asserts that the sheer number of officers present made the search here more humiliating than the one in Wade, which involved only three officers, all of whom played a role in the search.
The video reveals that initially there were only two officers in the cell, plus one officer in the doorway, and two standing by in the hall. There was also an employee in the booking office, who appears to have been female, receiving items that Officer Miller passed through the slot in the window. When Officer Miller took off defendant’s handcuffs, a third officer stepped into the cell and the two officers in the hall moved into the doorway. After the handcuffs were removed and it was clear matters were under control, one of the officers in the doorway moved back into the hall and then left. Before he asked defendant to remove his T-shirt, Officer Miller directed the employee in the booking room to leave the area, which she did. After defendant refused to bend over to allow the officers to view the area between his buttocks cheeks, the fourth officer, who was in the doorway, stepped into the cell and a fifth officer replaced him in the doorway. About this time, a sixth officer appeared in the window. According to Officer Miller, it was Sergeant Guth, the shift supervisor. Thus, the number of officers who participated in the search increased as the risk to officer safety increased, in particular when the officers removed defendant’s handcuffs and when defendant became uncooperative.
Defendant contends that only three of the officers participated in the search and that others were “mere on-lookers.” However, there is no evidence that any of the officers were present merely to watch a citizen strip or out of any prurient interest. The officers who were not directly involved in conducting the search participated in the search by insuring officer safety. Moreover, it was not unreasonable for the shift supervisor, who authorized the strip search, to observe the search, to insure that it was conducted properly and monitor officer safety. Sergeant Guth also participated in the search by persuading defendant to remove his underwear when the other officers were unsuccessful in persuading defendant to cooperate. Given the small space inside the booking cell, it was not unreasonable for the officers to leave the cell door open, to allow for a quick escape route in case the suspect attempted to harm the officers. We therefore conclude that the search was not unreasonable based upon the number of officers involved or the fact that the cell door was open.
Defendant also contends that the search was unreasonable because Officer Miller touched his buttocks, in violation of section 4030, subdivision (j), which provides that “[p]ersons conducting a strip search or a visual body cavity search shall not touch the breasts, buttocks, or genitalia of the person being searched.” However, as noted previously, a violation of section 4030 does not require suppression of the evidence unless after viewing the totality of the circumstances the search violates federal constitutional requirements. (Wade, supra, 208 Cal.App.3d at pp. 307-308.)
Defendant asserts that this case is distinguishable from Wade, in which the court upheld the constitutionality of a strip search in which the officer touched the defendant’s buttocks. In Wade, three police officers conducted a visual body cavity search on a suspect who had been arrested for being under the influence of an opiate. Earlier, one of the officers had observed the defendant adjusting something below his waist. As directed, the defendant pulled down his pants and underwear, bent over, and spread his buttocks cheeks. One of the officers observed a small plastic object protruding from the defendant’s anus. Wearing gloves, another officer spread the defendant’s buttocks cheeks and a bindle of tar heroin “fell to the floor without any further physical invasion into the rectal cavity.” (Wade, supra, 208 Cal.App.3d at p. 307.) The appellate court held that the defendant was not entitled to have the evidence suppressed and stated, “This case pales by comparison with Rochin and Winston: The body search was brief, nonviolent, minimally intrusive, and not conducted in a grossly offensive manner. Such searches are routine for inmates of penal facilities across the country. When the relatively mild intrusion is balanced against the public’s strong interest in combating narcotics use and the fact the contraband was visible and retrieved without actual physical invasion of a body cavity, it is clear that federal law would not require suppression of the evidence.” (Id. at p. 309.)
Defendant argues that this case is distinguishable from Wade because six officers, most of whom were “mere on-lookers,” were present, which made the search more humiliating and degrading than the one in Wade. Defendant also argues that unlike Wade, where the drugs were visible as soon as the defendant bent over and spread his buttocks cheeks, after defendant spread his buttocks cheeks and squatted revealing no evidence of narcotics, the officers no longer had any reason to suspect he was hiding narcotics in his anus and should have stopped. We have already disposed of both of these contentions and are not persuaded that these factual differences require a different result from that in Wade. As in Wade, the body cavity search here was brief, nonviolent, minimally intrusive, and not conducted in a grossly offensive manner.
Considering the events of defendant’s search under Fourth Amendment standards, nothing about the officers’ behavior “shocks the conscience.” It does not appear unreasonable under the Fourth Amendment to conduct a body cavity search of a parolee who is known to be a habitual drug offender and is about to enter into the general population of the jail on a parole hold. We therefore conclude that the court did not err when it denied the motion to suppress.
II. Court Facilities Assessment
The trial court ordered defendant to pay a $90 court facilities assessment under Government Code section 70373. The court calculated the amount of the assessment by multiplying the $30 statutory assessment per conviction by the number of convictions (four) for a total $120, then subtracting the $30 assessed for count 2 because imposition of sentence was stayed on that count pursuant to section 654.
Defendant did not object to the assessment below. On appeal, he contends that the court erred in imposing the assessment on two of the three counts, arguing that the Government Code section 70373 fee may only be imposed for violations of the Vehicle Code and that since only one of his convictions was for a violation of the Vehicle Code, we should reduce the assessment to $30.
Government Code section 70373 provides in relevant part: “(a)(1) To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony....” Government Code section 70303 became effective on January 1, 2009. (People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 3 (Brooks).)
“Enacted as part of Senate Bill No. 1407 (2007-2008 Reg. Session), the criminal conviction assessment is but one component of a broader legislative scheme in which filing fees in civil, family, and probate cases, were also raised. (See e.g., Gov. Code, §§ 70611 [unlimited civil filing fees], § 70613, subd. (a) [limited civil filing fees], 70621 [fees for an appeal or petition for a writ in limited civil cases], 70654 [petitions for appointment of a guardian].)” (Brooks, supra, 175 Cal.App.4th Supp. at p. 4.) Retroactive application of the assessment to offenses committed prior to its effective date does not violate constitutional provisions against ex post facto laws. (Id. at pp. 5-7.)
Defendant argues that the phrase “involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code” in Government Code section 70373, subdivision (a)(1) modifies the phrase “every conviction for a criminal offense” and that the assessment applies only to convictions for Vehicle Code offenses. We disagree.
We interpret a statute by looking at the plain meaning of the words used, giving them their usual and ordinary meaning. (People v. Yartz (2005) 37 Cal.4th 529, 537-538.) “If there is no ambiguity in the statutory language, its plain meaning controls....” (Id. at p. 538.) Here, the Government Code section 70373, fairly read, states that a fine must be imposed on “every conviction for a criminal offense” except for certain violations of the Vehicle Code. It is not limited to violations of the Vehicle Code as defendant asserts.
To the extent there is any doubt on this issue, the legislative history of the Government Code section 70373 puts it to rest. The Legislative Counsel’s Digest of the bill that added the statutory language at issue stated that the “bill would... impose an additional assessment upon every conviction for a criminal offense.” (Legis. Counsel’s Dig., Sen. Bill No. 1407 (2007-2008 Reg. Sess.) Stats.2008, ch. 311, § 1, p. 2101.) We conclude the court correctly imposed the $30 assessment on defendant’s felony conviction that was not stayed and on both of his misdemeanor convictions, for a total of $90.
III. Alleged Errors in Abstract of Judgment
Defendant contends that the abstract of judgment must be corrected because it does not accurately reflect the court’s oral pronouncement of judgment at the time of sentencing. He argues that (1) the abstract does not indicate that the sentence on count 2 was stayed; (2) the amounts of the restitution fines set forth in the abstract are incorrect; and (3) the abstract does not specify the amounts of the penalty assessments attached to the laboratory fee and the drug program fee. We will order the abstract of judgment corrected to address each of these points. We also conclude that there are errors in the abstract with regard to the sentence on count 1 and order the sentence on that count corrected.
“ ‘Rendition of judgment is an oral pronouncement.’ ” (People v. Mesa (1975) 14 Cal.3d 466, 471.) “An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Courts may correct clerical error in their records at any time and appellate courts that have assumed jurisdiction over a case may order correction of abstracts of judgment that do not accurately reflect the trial court’s oral pronouncement of judgment. (Ibid.)
A. Sentence on Count 2
At sentencing, the court imposed a four-year sentence on count 2 (possession of a controlled substance, Health & Saf. Code, § 11350, subd. (a)), which it calculated as follows: the two-year middle term, doubled for the strike prior. The court then stayed that sentence pursuant to section 654. The abstract correctly notes that defendant was sentenced to four years on count 2 and that defendant was sentenced as a two-strike offender on count 2, but does not indicate that the sentence on that count was stayed. We shall therefore order the abstract corrected.
B. Sentence on Count 1
In reviewing this case, we note that the abstract also does not accurately reflect the sentence on count 1. On count 1 (transportation of a controlled substance; Health & Saf. Code, § 11352, subd. (a)), the court imposed the four-year middle term, then doubled it for the strike prior, resulting in eight years. The abstract does not reflect this doubling of the sentence on count 1 and we will order the abstract corrected to conform to the court’s oral pronouncement of judgment.
The court also imposed a three-year enhancement on count 1 for the prior drug conviction pursuant to Health and Safety Code section 11370.2, subdivision (a), plus one year for the prior prison term, for a total sentence of 12 years on count 1. The abstract does include the additional time attached to count 1 for these enhancements.
C. Restitution Fines
Section 1202.4, subdivision (b)(1) provides: “The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor.” Subdivision (b)(2) of the statute contains a suggested formula for the court to use in setting the amount of a felony restitution fine. It provides that “the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” If the court stays the sentence on a felony count pursuant to section 654, that count is not considered in determining the amount of the restitution fine. (People v. Le (2006) 136 Cal.App.4th 925, 932-934.)
Citing section 1202.4, subdivision (b)(2), the probation officer suggested a restitution fine of “$500.00 times the number of years, times the number of felony counts” In another part of the report, the probation officer suggested a restitution fine of $500.
On appeal, both parties argue that the court imposed a restitution fine of $500. However, the court ordered defendant “in each of the counts... to pay a $500 restitution fine.” The court also ordered that the restitution fine on count 2 “would be stayed pending successful completion of the underlying or the primary sentence, in which case it would be – all that would be permanently stayed.” Five hundred dollars times four counts is $2,000, less $500 for the stayed count 2, equals $1,500.
With regard to the parole revocation restitution fine under section 1202.45, the court stated “[a]nd there would also be a $500 fine under section 1202.45, as to Count 1 and Count 2, and of course that would be stayed pending successful completion of parole.” Section 1202.45 provides that “[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine... shall be suspended unless the person’s parole is revoked.” (Italics added.) Thus, the statute requires that the parole revocation restitution fine be in the same amount as the restitution fine. Since the court imposed a $1,500 restitution fine, it was required to impose a $1,500 parole revocation restitution fine.
The abstract of judgment reflects the imposition of a $6,000 restitution fine and a $6,000 parole revocation restitution fine. We shall therefore order the abstract corrected to reflect a restitution fine of $1,500 and a parole revocation restitution fine of $1,500.
D. Penalty Assessments on the Laboratory Fee and the Drug Program Fee
At sentencing, the court imposed a laboratory fee of $50 per count on counts 1 and 2 pursuant to Health and Safety Code section 11372.5 and a drug program fee of $50 per count on counts 1 and 2 pursuant to Health and Safety Code section 11372.7, then stayed the fees on count 2. The court observed that there were penalty assessments “on top of” both of those fees, ordered the preparation of “an addendum, 1103.4 addendum to accompany the sentence, and that can be prepared by the probation officer,” and asked defense counsel whether defendant would stipulate to such a procedure. Defendant agreed to the procedure.
The abstract of judgment, which was prepared two weeks after sentencing, indicates that the court assessed a laboratory fee of $450 and a drug program fee of $190. The record does not contain a copy of the addendum prepared pursuant to the court’s order.
Defendant states that the amounts listed on the abstract “presumably includes those penalty assessments.” But, citing People v. High (2004) 119 Cal.App.4th 1192, 1199-1200 (High), defendant argues that the court was required to specify what the penalty assessments are and asks this court “to order the trial court to amend the abstract of judgment to specify the bases for each of the penalties and surcharges.” The Attorney General asserts that “this court only needs to direct the addendum to be attached to the abstract of judgment.”
In High, the trial court imposed “ ‘a criminal laboratory analysis fee in the total sum of $510, a drug program fee, together with surcharges and penalties in the total sum of $1,530, a clandestine drug lab fine, together with penalties, assessments and surcharges totaling $1,700.’ ” (High, supra, 119 Cal.App.4th at p. 1200.) Although the appellate court recognized “that a detailed recitation of all the fees, fines and penalties on the record may be tedious,” it stated that “California law does not authorize shortcuts,” held that “all fines and fees must be set forth in the abstract of judgment,” and ordered the trial court to amend the abstract of judgment and “separately list, with the statutory basis, all fines, fees and penalties imposed on each count.” (Id. at pp. 1200, 1201.) Since defendant does not attack the amount of the laboratory fee ($450) or the drug program fee ($190), we shall order the trial court to modify the abstract of judgment to reflect the bases for those fees. Assuming the amounts that were ordered are based on the probation officer’s addendum, the court may, in its discretion, accomplish this by simply attaching a copy of the probation officer’s addendum.
IV. Custody Credits
Defendant contends that he is entitled to one more day of custody credits. The Attorney General concedes the error.
The court awarded defendant 608 custody credits, based on 406 actual days in custody plus 202 good time/work time credits pursuant to section 4019.
Presentence custody credits are calculated from the date of booking up to and including the date of sentencing. (People v. Macklem (2007) 149 Cal.App.4th 674, 702; People v. Smith (1989) 211 Cal.App.3d 523, 526.) In this case defendant was arrested and booked on December 18, 2007, and sentenced on January 27, 2009. Recognizing that 2008 was a leap year, the parties agree that the number of actual custody days was 407 days, not the 406 days ordered by the court. By our calculations, that is correct. This change does not affect the number of conduct credits. We shall therefore order the abstract of judgment amended to reflect one additional day of presentence custody credits.
Disposition
The judgment is affirmed. The abstract of judgment is ordered corrected as follows: (1) to state that the total number of actual credits is 407 days and the total number of custody credits is 609 days; (2) to indicate that the four-year sentence on count 2 was stayed pursuant to section 654; (3) to indicate that the sentence on count 1 was doubled pursuant to the Three Strikes Law and that defendant was sentenced as a two strikes offender to eight years on that count; (4) to state that the court imposed a restitution fine (§ 1202.4) of $1,500 and a parole revocation restitution fine (§ 1202.45) of $1,500; and (5) to reflect the bases for laboratory fee and the drug program fee, including any penalty assessments added to the base fees. Assuming the amounts stated in the abstract are consistent with the addendum prepared by the probation officer, the court may, in its discretion, correct the laboratory fee and the drug program fee by attaching a copy of the probation officer’s addendum. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: Elia, Acting P.J., Mihara, J.