Filed 4/7/22 P. v. Barham CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michel G. Bush and Brian M. McNamara, Judges.†

Jason Szydlik, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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introduction and Background

The District Attorney of Kern County filed an information on October 24, 2018, charging defendant Danny Lee Barham with unlawfully manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a).) Defendant pleaded not guilty.

On November 20, 2018, defendant moved to suppress the evidence seized from a warrantless search of his residence pursuant to Penal Code section 1538.5.[1] The prosecutor opposed the motion, justifying the search based upon the search terms of defendant’s probation. The trial court heard evidence relating to defendant’s motion on December 6, 2018, and denied the motion thereafter. A jury convicted defendant on March 7, 2019, after a five-day trial.

On April 8, 2019, the trial court denied probation and sentenced defendant to the upper term of seven years, with defendant serving two years in county jail and the remainder on mandatory supervision pursuant to section 1170, subdivision (h)(5)(B). As a term of supervision, the court ordered defendant to register as a narcotics offender pursuant to former Health and Safety Code section 11590. In addition, the court ordered defendant to pay a $50 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5); a $100 drug program fee (Health & Saf. Code, § 11372.7), a $40 court operations assessment (§ 1465.8, subd. (a)), a $30 criminal conviction assessment (Gov. Code, § 70373), a $300 restitution fine (former § 1202.4, subd. (b)), a suspended $300 mandatory supervision revocation restitution fine (§ 1202.45, subd. (a)), $465 in penalty assessments, and monthly $40 mandatory supervision costs (former § 1203.1b).[2]

This timely appeal followed on May 14, 2019.

Defendant contends on appeal (1) the trial court erred in denying his motion to suppress evidence seized from a probation search for which the officer lacked reasonable suspicion; (2) we should strike the trial court’s order requiring defendant to register as a narcotics offender because former Health and Safety Code section 11590 was repealed by Assembly Bill No. 1261 (2019–2020 Reg. Sess.) (Assembly Bill 1261) (Stats. 2019, ch. 580, § 1, eff. Jan. 1, 2020) and applies as his judgment is not yet final; and (3) the minute order should be amended to conform to the trial court’s oral pronouncement as to a mandatory supervision condition. The People argue controlling California Supreme Court authority has rejected any requirement that a probation search be based upon reasonable suspicion and Assembly Bill 1261 does not apply retroactively to defendant’s sentence. The People concede the minute order should be amended to conform to the oral pronouncement. In addition, both parties agree that we must remand this matter for resentencing under new legislation that took effect on January 1, 2022.

We accept their agreement that these enactments apply retroactively to this case and require remand for resentencing. In light of this conclusion, we need not address defendant’s other claims of sentencing error. In all other respects, we affirm the judgment.

fACTS

1. Facts adduced at trial.
   1. Prosecution’s Case

On October 2, 2018, John Menser, a deputy sheriff of Kern County responded to defendant’s residence in Kern County. As he approached the residence, Deputy Menser saw defendant in the doorway holding a backpack. Defendant then walked back inside the residence before returning to the doorway without his backpack. After entering the residence, defendant told Deputy Menser that he had marijuana in his bedroom and identified his room to the officer. Deputy Menser and assisting officers searched defendant’s room and found four and one-half pounds of marijuana, a PVC pipe with a funnel inserted, coffee filters, about ten 300-milliliter butane canisters, and butane torch lighters. He also found glass tubing, a glass jar, plastic baggies, and some metal scrapers that all had a brown, sticky residue.

After Deputy Menser arrested defendant and provided him with Miranda[3] warnings, defendant told Deputy Menser that the items in the room belonged to him. Defendant used them to “make honey oil,” and he described the process he used. Defendant explained that he would heat water, soak the marijuana in butane before adding it to the water, and then heat the liquid to evaporate the water. He would drain the mixture through a filter at the end of the PVC pipe, allowing the THC residue to seep through. After it dried, defendant would scrape the concentrated cannabis from the filter.

Deputy Rogelio Medina of the Kern County Sheriff’s Department narcotics unit provided expert testimony that “honey oil” was a concentrated form of cannabis and a controlled substance. He described how to manufacture honey oil from marijuana using butane consistent with defendant’s description to Deputy Menser. Deputy Medina expressed his opinion that the items found in defendant’s room were consistent with manufacturing concentrated cannabis.

Criminalist Petra Imhof testified that she tested substances from three of the items from defendant’s room and identified the items as containing concentrated cannabis and marijuana.

1. 2. Defense Testimony

Ronald Wright testified that he lived with defendant and had never known defendant to make honey oil. He admitted that defendant kept his bedroom door closed and locked when not in the residence. Wright further testified that their residence had not had power since 2016.[4] Defendant’s father testified that he lived at the same residence, they did not have electricity at the house, and that he was not aware of his son making concentrated cannabis.

Defendant testified that all the items in the room belonged to him. He grew the marijuana at a friend’s residence and used those items to make concentrated cannabis using only water but not butane. He denied telling Deputy Menser that he used butane to make “honey oil.” Defendant testified that he used the butane to fill his lighters and not to make concentrated cannabis.

Deputy Medina testified on rebuttal that water alone can be used to produce hash, but not honey oil. Honey oil can be produced with water as long as ice is also used.

2. The motion to suppress hearing.

Deputy Menser testified that he was dispatched to defendant’s residence to investigate a domestic violence call. Upon arrival, dispatch provided him information that defendant lived at the residence and was on probation with a condition permitting the search of his residence, vehicle, and person for narcotics and narcotics paraphernalia. Defendant was also serving a second term of probation that permitted the search of his residence, vehicle, and person for stolen property.

Deputy Menser approached the residence and saw defendant in the doorway, wearing a backpack and about to leave. Defendant saw the deputy, went back into the house, and returned to the door without his backpack. Deputy Menser asked the occupants questions regarding the domestic violence investigation and then conducted a warrantless search of defendant’s residence based upon his probation terms.

The trial court took judicial notice of the court records evidencing that defendant was on two grants of probation that included residential search conditions for narcotics and stolen property. Defense counsel argued that the search was arbitrary, capricious, and not reasonably related to the search conditions because there was no evidence that the domestic violence investigation was related to defendant. The trial court concluded, “There’s no evidence [the search] is arbitrary or capricious. The officers had a right to search; therefore, the motion is denied.”

discussion

1. The trial court did not err in upholding the search of defendant’s residence pursuant to his probation search conditions.
   1. Standard of Review and Applicable Law

In reviewing the trial court’s denial of defendant’s motion to suppress, we consider the record in the light most favorable to the trial court’s ruling and defer to the trial court’s express and implied factual findings if they are supported by substantial evidence. (People v. Woods (1999) 21 Cal.4th 668, 673–674.) We exercise our independent judgment in determining the legality of a search on the facts (Ibid.)

The search of a probationer pursuant to a search condition of probation may be conducted without any reasonable suspicion of criminal activity. (People v. Bravo (1987) 43 Cal.3d 600, 602, 609 (Bravo); accord, People v. Woods, supra, 21 Cal.4th at p. 675.) This is so because a probationer consents to waiver of his Fourth Amendment rights to avoid serving a state prison term. (Bravo, at p. 608.) A search pursuant to a probation search condition, conducted without reasonable suspicion of criminal activity, does not violate the Fourth Amendment so long as the search is not “undertaken for harassment or … for arbitrary or capricious reasons.” (Bravo, at p. 610.)

1. 2. Analysis

Defendant does not argue that the probation search in this case was invalid because the search was arbitrary, capricious, or harassing. Rather, defendant agrees that the trial court’s ruling was in accordance with the California Supreme Court’s decision in Bravo. Nonetheless, defendant contends that United States v. Knights (2001) 534 U.S. 112 suggests that reasonable suspicion is required for a probation search, and defendant wishes to preserve the issue.

Defendant correctly recognizes that the United States Supreme Court has not yet addressed whether a probation search violates the Fourth Amendment if not supported by reasonable suspicion. (United States v. Knights, supra, 534 U.S. at p. 120, fn. 6 [“we need not address the constitutionality of a suspicionless search because the search in this case was supported by reasonable suspicion”].) Defendant also correctly acknowledges that in the absence of such a holding, we are bound to follow the California Supreme Court’s decision in Bravo that reasonable suspicion is not required for a probation search. (People v. Medina (2007) 158 Cal.App.4th 1571, 1580; see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Defendant concedes that the probation search was neither arbitrary, capricious, nor harassing. We agree with the trial court’s conclusion in this regard as well. Therefore, we conclude that the trial court did not err in denying defendant’s motion to suppress the evidence seized from his residence.

2. Other Claimed Sentencing Errors

Effective January 1, 2022, Assembly Bill No. 124 (2021–2022 Reg. Sess.) (Assembly Bill 124) and Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) amended section 1170 and made changes affecting trial court sentencing discretion, including the ability to impose the upper term for a conviction. (Stats. 2021, ch. 695, § 5; Stats. 2021, ch. 731, § 1.3.) Among other things, Assembly Bill 124 sets a presumption that the trial court will impose the lower term under enumerated circumstances, such as where an offender’s childhood trauma or youth were contributing factors in the offense. (§ 1170, subd. (b)(6), as amended by Stats. 2021, ch. 695, § 5.) Senate Bill 567 limits the trial court’s ability to impose the upper term unless certain conditions have been met. (§ 1170, subd. (b)(1), as amended by Stats. 2021, ch. 731, § 1.3.) In his supplemental brief, defendant argues this matter must be remanded for resentencing so the trial court may reconsider its sentencing decisions under the new legislation. The People agree remand is required in this instance, as do we.

Under In re Estrada (1965) 63 Cal.2d 740, “[w]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date.” (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) Nothing in Assembly Bill 124 or Senate Bill 567 suggests legislative intent that the amendments apply prospectively only, and defendant’s case is not yet final. (See People v. Vieira (2005) 35 Cal.4th 264, 306.)

Where an ameliorative statute like this one is retroactive, a remand is appropriate unless “the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) There is no clear indication what sentencing decisions the trial court would have made if it was bound by the new requirements under Assembly Bill 124 and Senate Bill 567.[5] Therefore, we agree with the parties that remand is appropriate so the trial court may fully resentence defendant anew, incorporating the new legislative changes. (See People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.)

Defendant also asks us to (1) strike the trial court’s order that he register as a narcotics offender pursuant to former Health and Safety Code section 11590, which was repealed by Assembly Bill 1261 (Stats. 2019, ch. 580, § 1, eff. Jan. 1, 2020) and (2) order that the sentencing minute order be amended as to one term of his supervision to conform to the trial court’s oral pronouncement. In light of our remand for resentencing, we need not address these issues.

disposition

The sentence is vacated, and the matter is remanded to the trial court to sentence defendant under Penal Code section 1170, as amended by Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3) and Assembly Bill No. 124 (Stats. 2021, ch. 695, § 5). The judgment is otherwise affirmed.

HILL, P. J.

WE CONCUR:

DETJEN, J.

DESANTOS, J.

† Judge Bush ruled on defendant’s motion to suppress; Judge McNamara presided over all other hearings pertinent to this appeal.

[1] All future statutory references are to the Penal Code unless otherwise noted.

[2] The monthly $40 mandatory supervision costs (former § 1203.1b) became “unenforceable and uncollectible” through the enactment of Assembly Bill No. 1869 (2019–2020 Reg. Sess.), effective July 1, 2021. We would ordinarily strike the unpaid portion of that cost in light of the change in the law but need not do so since we are remanding for resentencing.

[3] Miranda v. Arizona (1966) 384 U.S. 436.

[4] This evidence was used to argue that defendant could not manufacture honey oil at the residence because he was not able to heat the water-butane-marijuana mixture.

[5] We note that the trial court relied upon three aggravating circumstances in selecting the upper term sentence in this case. We take no position as to whether the trial court’s reliance on such circumstances requires either defendant’s admission or a jury finding, nor whether the prosecutor may seek a jury trial on any factors in aggravation on remand pursuant to section 1170, subdivision (b)(2).