Filed 2/8/22 P. v. Duarte 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT*

APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani and Dale J. Blea, Judges.†

Devon Stein, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Frank Duarte pled guilty to being a felon in possession of a firearm and possession of an assault weapon. He contends on appeal that (1) the warrantless search of his vehicle that led to the discovery of the firearm was unlawful because it was unsupported by probable cause and no exception to the warrant requirement applied, and (2) the fees imposed pursuant to former Penal Code section 1465.9[1] and former Government Code section 29550.2 must be vacated as unenforceable and uncollectable pursuant to Assembly Bill No. 1869 (2019−2020 Reg. Sess.) (Assembly Bill 1869). The People disagree on the first issue, arguing that the search was supported by probable cause and exceptions to the warrant requirement. However, the People agree that defendant is entitled to the benefit of Assembly Bill 1869. We vacate the portion of the sentence imposing fees pursuant to former section 1465.9 and former Government Code section 29550.2. In all other respects, we affirm.

PROCEDURAL SUMMARY

On February 20, 2020, the Madera County District Attorney filed an information charging defendant with possession of a firearm by a felon (§ 29800, subd. (a)(1); count 1), possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count 2), possession of an assault weapon (§ 30605; count 3), possession of a short‑barreled shotgun or rifle (§ 33215; count 4), possession of a large-capacity magazine (§ 32310, subd. (c); count 5), and discharging a firearm with gross negligence (§ 246.3, subd. (a); count 6).

On December 11, 2019, defendant filed a motion to suppress evidence pursuant to section 1538.5. On February 7, 2020, the trial court denied defendant’s motion based on the evidence presented on the same date at the preliminary hearing.

After the information was filed, defendant filed a motion pursuant to section 1538.5, subdivision (i), on October 29, 2020.

On December 21, 2020, defendant filed an amended motion to suppress evidence, based on the evidence presented at the February 7, 2020 preliminary hearing. On February 17, 2021, the trial court denied defendant’s motion.

On April 14, 2021, pursuant to a negotiated plea agreement, defendant pled guilty to counts 1 and 3 in exchange for dismissal of the remaining counts and a stipulated two‑year term of imprisonment.

On May 12, 2021, the trial court sentenced defendant to two years in prison as follows: on count 1, two years (the middle term); and on count 3, 16 days in jail with credit for time served.

On May 13, 2021, defendant filed a notice of appeal.

FACTUAL SUMMARY[2]

On December 31, 2018, at approximately 11:30 p.m., City of Madera Police Officer Richard Gonzales responded to a call reporting gunshots on a block in the city of Madera. When Gonzales arrived at the call location, a fellow officer reported that he heard rapid-fire gunshots, saw muzzle flashes emanating from the backyard of one of two residences on the block, and “observed approximately two or three individuals in the area in the backyard where the gun was being fired.” As Gonzales approached the two residences, he observed defendant exit the side gate of one of the residences and walk “at a brisk pace” toward a maroon sedan parked on the front lawn of that residence. He momentarily lost sight of defendant as defendant walked toward the maroon sedan. Two other people exited from the same gate and walked to a van parked in the driveway of the residence.

Gonzales and another officer stopped defendant before he entered the maroon sedan and searched his person. Gonzales did not locate any weapons on defendant’s person. Gonzales asked defendant if he had fired a gun. Defendant denied having fired a gun.

Gonzales approached the residence in front of which the maroon sedan was parked. Defendant’s mother answered the door and consented to officers searching the property for firearms and any evidence that firearms had been fired. In the backyard, Gonzales located “numerous spent shell casings of .233[-caliber]” ammunition that appeared to have been recently discarded. Within five minutes of his initial contact with defendant, Gonzales also located an AR-15 style rifle inside a backpack that sat on the front passenger seat of the unlocked maroon sedan that Gonzales knew to be registered to defendant and his wife. The rifle had an overall length of 23 inches, was capable of firing .233-caliber ammunition, and was equipped with an empty 30-round magazine. The firearm was not visible from outside the vehicle. No warrant was obtained prior to a search of the vehicle.

As Gonzales began to read defendant a Miranda[3] admonition, other gunshots could be heard. Defendant interrupted Gonzales and said, “ ‘Hear that[,] big stupid[?] … I’m not the only one who’s ripping.’ ” Gonzales told defendant that he had discovered defendant’s firearm. Defendant responded that he would “just get another one.”

After placing defendant under arrest, Gonzales drove to defendant’s home and conducted a search with the permission of defendant’s wife. Gonzales discovered .223‑caliber ammunition, .357-caliber ammunition, and various other calibers of handgun ammunition, all inside a grey diaper bag.

DISCUSSION

Motion to Suppress Evidence

Defendant argues that the warrantless search of his vehicle was unsupported by probable cause, was not properly undertaken under the community caretaking exception to the warrant requirement, and was not a proper search incident to arrest. Defendant contends that the evidence obtained as a result of the search should have been suppressed. He argues that the trial court’s failure to suppress the evidence requires reversal. The People disagree. They argue the officers’ observation of gunshots being fired, the presence of fresh spent cartridges, and the absence of a firearm in the residence or on the person of defendant or the other men justified the search of the unlocked maroon sedan registered to defendant. We agree with the People. The search of defendant’s vehicle was permissible under the automobile exception to the warrant requirement.

In reviewing a trial court’s ruling on a motion to suppress, we review factual findings for substantial evidence and make all reasonable factual inferences in favor of the ruling. (People v. Zamudio (2008) 43 Cal.4th 327, 342.) We exercise our independent judgment to determine whether a search occurred and whether any search was reasonable under the Fourth Amendment. (Ibid.; People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Gutierrez (2018) 21 Cal.App.5th 1146, 1152.)

The federal and California Constitutions prohibit unreasonable searches and seizures. (U.S. Const., 4th & 14th Amends.; Cal. Const., art. I, § 13.) California law applies federal constitutional standards to the review of search and seizure rulings. (People v. Rogers (2009) 46 Cal.4th 1136, 1156, fn. 8.) Under section 1538.5, subdivision (i), a trial court may grant a motion to suppress evidence “only if exclusion is mandated by the federal Constitution.” (People v. Banks (1993) 6 Cal.4th 926, 934.) The initial burden is on the defendant to establish that the government conducted a search without a warrant. The burden then shifts to the prosecution to justify the warrantless search. (People v. Williams (1999) 20 Cal.4th 119, 127.) A warrantless search is presumptively unreasonable. (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 652–653.) The prosecution must prove by a preponderance of the evidence the search falls within an exception to the Fourth Amendment’s warrant requirement. (People v. Torres (1992) 6 Cal.App.4th 1324, 1334–1335.)

One of the exceptions to the warrant requirement is known as the automobile exception: “One such exception is for vehicles used on a public thoroughfare or readily capable of such use. If a vehicle is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment permits the search of the vehicle.” (People v. Allen (2000) 78 Cal.App.4th 445, 449; People v. Evans (2011) 200 Cal.App.4th 735, 753 [There are two requirements under the automobile exception: law enforcement have not unlawfully stopped the vehicle and they have probable cause to believe it contains contraband or evidence of a crime.].) “Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.” (South Dakota v. Opperman (1976) 428 U.S. 364, 367–368.) Decisions upholding warrantless searches of vehicles thus do not distinguish between searches conducted on parked vehicles or vehicles that have been stopped by police on a highway. (People v. Superior Court (Overland) (1988) 203 Cal.App.3d 1114, 1119.)

The scope of a search that may be conducted under the automobile exception extends to any container within the vehicle capable of concealing the object of the search. (Wyoming v. Houghton (1999) 526 U.S. 295, 306–307.) “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” (United States v. Ross (1982) 456 U.S. 798, 825.) The automobile exception extends even as far as permitting search of locked containers. (Id. at p. 822.)

Probable cause to search exists “where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found [citation].” (Ornelas v. United States (1996) 517 U.S. 690, 696.)

“As the United Stated Supreme Court has noted, ‘probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.’ [Citation.] Further, ‘[a]n officer is entitled to rely on his [or her] training and experience in drawing inferences from the facts he [or she] observes, but those inferences must also “be grounded in objective facts and be capable of rational explanation.” ’ [Citation.] When considering the validity of the evidence, it is to be analyzed ‘ “as understood by those versed in the field of law enforcement.” ’ [Citation.] ‘The principal components of a determination of … probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount … to probable cause.’ [Citation.] As such, we consider the totality of the circumstances, and analyze these facts as would a reasonable police officer, in assessing the officer’s probable cause, rather than looking to singular facts in a vacuum.” (People v. Moore (2021) 64 Cal.App.5th 291, 297–298.)

In People v. Tousant, a shooting was reported in the driveway in front of a home. (People v. Tousant (2021) 64 Cal.App.5th 804, 810.) The driver saw the shooter and another man flee in a white four-door vehicle. (Ibid.) When officers arrived, they found expended shell casings, two unfired rounds, and a loaded magazine. (Ibid.) Only a few feet from the shell casings, they found the defendant’s rental vehicle parked, unlocked and partially blocking another driveway. (Id. at pp. 810–811, 814.) Officers learned that the vehicle had been parked in that location for only a few hours and it was not recognized by the neighbors. (Id. at p. 813.) The officers searched the vehicle without a warrant and discovered incriminating evidence. (Id. at pp. 811, 814.) On appeal, the defendant argued that the warrantless search was conducted in violation of the Fourth Amendment. The appellate court concluded that probable cause for the search existed and the automobile exception applied. (Id. at p. 814.) It explained that the vehicle’s “proximity to the target of the shooting, bullet casings, and loaded magazine, its arrival on the scene shortly before the shooting, its unfamiliarity to a nearby resident,” and the fact that the vehicle was unlocked and keys were in the ignition, “established ‘ “a fair probability” ’ that the vehicle and its occupants were connected to the shooting and that the car would contain evidence of that crime.” (Id. at p. 815.)

Similar to the officers in Tousant, the officers in this case had probable cause to search the vehicle. An officer heard gunshots and saw muzzle flashes emanating from the backyard near where defendant was seen. The same officer reported seeing two or three people in the backyard where the shots were being fired. Gonzales discovered 30 or 40 spent ammunition cartridges in the backyard from which defendant and two others appeared. In searches of the adjoining home and other vehicle at the scene, no firearm capable of firing those rounds was found. Gonzales learned that the maroon sedan was registered to defendant and saw defendant walking toward the vehicle at a “brisk pace” not long after the shots were fired. While Gonzales did not see defendant enter the vehicle, he noted that he momentarily lost sight of defendant. Gonzales detained defendant near the unlocked passenger door to the maroon sedan. In view of the totality of the circumstances from the standpoint of a reasonable police officer, probable cause existed to believe that a firearm or other evidence of the crime would be concealed in the maroon sedan. (People v. Tousant, supra, 64 Cal.App.5th at pp. 814–815.) Defendant’s contentions do not convince us to the contrary.

Defendant argues that Gonzales had no reason to suspect that a firearm was located in the maroon sedan, rather than in the backyard of his mother’s residence, in the residence itself, or elsewhere. He notes that Gonzales testified that he searched the maroon sedan within five minutes of contacting defendant and the search of the backyard and home could not have been thorough enough to rule out the possibility that a firearm was located somewhere other than the maroon sedan. He further argues that the absence of any indicia of firearms possession on his person militated against a reasonable belief that a firearm would be found in the maroon sedan. While a firearm could conceivably have been concealed elsewhere, officers are not required to rule out all other possibilities before conducting a search for which they have probable cause; they need only reasonably conclude that evidence of a crime would be found in the vehicle. (See Ornelas v. United States, supra, 517 U.S. at p. 696.) Because defendant recently exited a backyard where officers had seen and heard evidence of gunfire, no firearm had been located in the immediate area after a brief search, defendant’s apparent intent to flee in the vehicle, and the fact that the vehicle was known to belong to defendant, officers had probable cause to search the vehicle.

We agree with the trial court that probable cause existed to search the maroon sedan and that the search was permitted under the automobile exception to the warrant requirement.[4]

Assembly Bill 1869

Operative July 1, 2021, Assembly Bill 1869 eliminated many fines, fees, and assessments that courts have imposed under a variety of statutes, including former section 1203.1b, previously allowing collection of probation report fees, and former Government Code section 29550.2, previously permitting collection of booking fees. (Stats. 2020, ch. 92, §§ 2, 11, 25 47, 62.) Here, the parties agree, as do we, that any unpaid portion of the probation report fees ordered pursuant to former section 1203.1b and booking fees ordered pursuant to former Government Code section 29550.2 are uncollectable and unenforceable as of July 1, 2021. (§ 1465.9, subd. (a); Gov. Code, § 6111, subd. (a).) We therefore vacate the portion of the judgment requiring payment of fees pursuant to former section 1203.1b and former Government Code section 29550.2. Any portion of those fees not collected before July 1, 2021, is unenforceable and uncollectable.

DISPOSITION

The portion of the judgment imposing fees pursuant to former section 1203.1b and former Government Code section 29550.2 is vacated. In all other respects, we affirm.

* Before Peña, Acting P. J., Smith, J. and DeSantos, J.

† Judge Soldani presided at the first Penal Code section 1538.5 hearing; Judge Blea presided at the second Penal Code section 1538.5, subdivision (i), hearing.

[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] The factual summary is based on the testimony presented at the February 7, 2020 joint preliminary hearing and the hearing on defendant’s initial motion to suppress.

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

[4] Because we find that no Fourth Amendment violation occurred, we do not reach defendant’s arguments regarding the impact of the purported violations.