Filed 7/3/17 P. v. Miller CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

ANTOINE DESHON MILLER,

Defendant and Appellant.
C081629

(Super. Ct. No. 13F04640)




Defendant Antoine Deshon Miller pleaded no contest to multiple firearm and drug charges. On appeal, he contends the trial court improperly denied his motion to suppress evidence discovered during a search of his apartment, including firearms, ammunition, and cash. Police obtained consent for the search from Nizarae Robinson, who was in defendant’s apartment with him at the time of his arrest on a warrant. (RT 26, 58) Defendant claims it was not reasonable for the police to believe that Robinson had authority to consent to the search.
We requested and received supplemental briefing regarding apparent sentencing errors; we remand for resentencing but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On February 8, 2013, Deputy Dennis Peyton saw defendant obstruct traffic while parking a white Buick sedan. Defendant got out of the car and Peyton approached to talk with him. Peyton asked if defendant possessed any contraband; defendant said no but agreed to allow Peyton to check. Peyton did not find anything and defendant agreed to allow Deputy Danny Oliver, Peyton’s partner, to search the car. Oliver found a loaded revolver in the center console. Defendant was charged with being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)) and carrying a concealed firearm within a vehicle (§ 25400, subd. (a)(1)). After release on his own recognizance, defendant failed to appear for a court hearing on July 16.
Law enforcement saw the Buick at an apartment complex on July 16 and again later in July. On July 25, two residents told Peyton that defendant lived in the complex, and one of them said defendant was there at the time. Peyton spoke with the complex’s maintenance manager, who confirmed defendant lived there and gave Peyton a key. Peyton, Oliver, and another officer went to the unit, knocked on the door, and identified themselves. Peyton heard quick movement inside the door and noticed three security cameras outside the unit. Peyton tried to open the door with the key, but it did not work. The door was reinforced and police had to use a ram device to open it. After entering the apartment, Peyton saw defendant at the back of the small apartment, in the space between the bedroom and bathroom. Peyton noticed “piles and piles” of clothes in the bedroom, including women’s clothing, “four or five garbage bags full.” Defendant was detained and removed from the apartment.
The police found Robinson in the bedroom. Oliver escorted Robinson outside the apartment to a patrol vehicle, told her she was not under arrest, and began asking her questions about the apartment. Robinson told Oliver she had been “staying [at the apartment] off and on” and kept her clothing there. Oliver testified that Robinson gave him no reason to doubt that she lived at the apartment. Oliver asked for her consent to search the apartment, and Robinson said yes. Peyton also spoke with Robinson, and she told him she had been living in defendant’s apartment for “a month or more” and had bags of clothing and toiletries inside that she wanted to retrieve. Peyton also asked if she would be willing to consent to the police searching the apartment. He testified that Robinson seemed to understand that she could say no and signed a consent form. The consent form listed defendant’s apartment as her (“my”) address.
The police searched the apartment and found a box of .40-caliber ammunition, three loaded handguns, and $10,000 in cash. The guns were underneath the bathroom sink and about three feet away from defendant when he surrendered to police. Police also found a digital scale, drug packaging, and cocaine.
The cases against defendant related to the February 8 and July 25 incidents were consolidated, and defendant was charged with three counts of possession of cocaine base while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a); counts one through three), possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count four), four counts of being a felon in possession of a firearm (§ 29800, subd. (a)(1); counts five through seven and nine), unlawful possession of ammunition by a felon (§ 30305, subd. (a)(1); count eight), carrying a concealed weapon within a vehicle (§ 25400, subds. (a)(1) & (c)(6); count ten), and failure to appear (§ 1320, subd. (b); count eleven). As to counts one through eight, it was alleged that the offenses occurred while defendant was released from custody pending judgment in case No. 13F01073. (§ 12022.1.) As to count four, it was alleged defendant had a prior conviction for possession of cocaine base for sale. (Health & Saf. Code, §§ 11351.5, 11370.2, subd. (a).)
On April 4, 2014, the trial court denied defendant’s motion to suppress the evidence from the February 8 and July 25 searches. (§ 1538.5.) The parties stipulated there was a valid and appropriate arrest warrant for defendant on July 25. The court found the entry into defendant’s apartment and the subsequent vehicle search were both legal; defendant does not challenge this conclusion on appeal.
Defendant also challenged law enforcement’s claim of third party consent to search the apartment. On that issue, the trial court found the police reasonably believed Robinson had authority to consent to the search because she was in the bedroom when the police arrived, she told officers she lived there, and she kept clothes and toiletries in the apartment. Further, the consent to search form she signed contained defendant’s apartment address listed as “my” address. The court noted that the police obtained both oral and written permission from Robinson, “giving her plenty of time to say she doesn’t live there.”
On February 11, 2016, defendant pleaded no contest to all counts as well as the prior drug conviction allegation, pursuant to an offer by the trial court of a six year eight month sentence. In describing the offer, the trial court said it was a plea to “every count and every material allegation.” During the plea, the court indicated it “would strike that alleged enhancement” when asked about the allegation that defendant committed counts one through eight while he was released from custody. Although defendant did not plead to this enhancement, as we discuss post, the record reflects neither its dismissal nor the reasons dismissal was contemplated. The probation report acknowledged defendant had pled to all eleven counts but indicated erroneously that both allegations had been “[s]ubmitted for [d]ismissal.”
On March 14, 2016, the trial court sentenced defendant--first on count one to the middle term of three years, then adding “one third the middle term . . . which is eight months” on counts four, five, six, seven, and nine, later corrected to one third the middle term on counts four, six, seven, eight, and nine, as indicated at the time of the plea, without reference to the length of each middle term. The court pronounced an aggregate sentence of six years eight months in state prison. The court did not mention the remaining counts and (drug prior) allegation to which defendant pled, nor did it address the (on release) allegation to which defendant did not plead. Defendant timely appealed, but did not obtain a certificate of probable cause.
DISCUSSION
I
Motion to Suppress
Defendant challenges the trial court’s denial of his motion to suppress, contending the search of the residence without a search warrant was unjustified by third party consent. Defendant argues the police did not have a reasonable belief that Robinson had joint access or control of the apartment. He points to the lack of evidence that Robinson was on the rental agreement, paid rent, had previously been seen at the apartment, or even had a key to the apartment. Further, Robinson told police that she had been “staying there off and on” and asked police for help retrieving her belongings, suggesting she did not have access to the apartment. Although these are valid points, other evidence adequately supports the trial court’s decision.
In reviewing the denial of a motion to suppress evidence, we “defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
“The Fourth Amendment generally prohibits the warrantless entry of a person’s home, whether to make an arrest or to search for specific objects. [Citations.] The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched, [citation], or from a third party who possesses common authority over the premises . . . . [¶] ‘[C]ommon authority’ rests ‘on mutual use of the property by persons generally having joint access or control for most purposes.’ ” (Illinois v. Rodriguez (1990) 497 U.S. 177, 181 [111 L.Ed.2d 148].) A search is valid if the police officer reasonably believed that the consenting third party had the authority to consent. (Id. at pp. 188-189.) “[D]etermination of consent to enter must ‘be judged against an objective standard: would the facts available to the officer at the moment . . . ‘warrant a man of reasonable caution in the belief’ that the consenting party had authority over the premises?” (Id. at p. 188.)
Here, it was reasonable for the officers to believe Robinson had authority to consent. Although she told Oliver she was staying at the apartment “off and on,” she clarified to Peyton that she had been living there for a month or more. The two statements were not mutually exclusive, but her proclaimed residence at the apartment for a month certainly would cause a reasonable person to believe she had common authority. She had belongings inside the apartment, including toiletries and a lot of clothing, which were sufficiently important to her that she asked to retrieve some of them before the police left. The police found her in the bedroom when they entered the apartment, and she gave written permission for the search, signing a consent form that listed the apartment as “my” address. We find no error.
II
Sentencing
The trial court did not impose sentence on multiple counts--counts two, three, five, ten, and eleven--and did not address the prior drug conviction allegation, to which defendant pled, or the pending on release allegation, to which defendant did not plead. Thus five counts and one allegation remain unsentenced, and another allegation remains pending.
Defendant contends the trial court was required under section 654 to impose and stay punishment on counts two, three, five, and ten because the same guns were involved in counts one and five, two and six, three and seven, and nine and ten, respectively. (See People v. Jones (2012) 54 Cal.4th 350, 357 [possessing a single firearm on a single occasion constitutes a single act].) As to count ten, the People agree. As to counts two, three, and five, the People argue insufficient findings were made and ask for remand. We agree that remand for resentencing is the appropriate remedy in this case, for multiple reasons.
Section 654 precludes multiple punishments for a single physical act that violates different provisions of law (People v. Jones, supra, 54 Cal.4th at p. 358) as well as multiple punishments for an indivisible course of conduct that violates more than one criminal statute (People v. Correa (2012) 54 Cal.4th 331, 336). Whether section 654 “applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) If the trial court determines section 654 applies, it must impose sentence and stay execution on every affected count. (People v. Alford (2010) 180 Cal.App.4th 1463, 1467, 1469.)
We agree with the People that the trial court could have found the offenses in counts two, three, and five involved separate intents from counts six, seven, and one, respectively. (See People v. Vang (2010) 184 Cal.App.4th 912, 916 [affirming trial court’s determination that the defendant had separate intents in (a) possessing methamphetamine while armed and (b) being a felon in possession of a firearm]; compare People v. Williams (2009) 170 Cal.App.4th 587 [section 654 required the trial court to impose sentence and stay execution, where crimes of being a felon in possession of a firearm and possession of a controlled substance while armed involved same act and intent].) But no findings were made. Likewise, the trial court did not address count eleven at all, nor did it address the prior drug conviction allegation (attached to count four) to which defendant pled. Although defendant asks us to sentence or dismiss all remaining counts and allegations, arguing that the trial court’s “intent is clear,” we agree with the People that here the appropriate course is remand. Further, the on release allegation attached to counts one through eight is apparently still pending.
Although section 1385 gives the trial court discretion to dismiss an action “ ‘in furtherance of justice,’ ” it must provide reasons for the dismissal. (People v. Stowell (2003) 31 Cal.4th 1107, 1115.) We shall remand for the trial court to address the two allegations--one admitted and not yet sentenced and the other neither admitted nor dismissed--and to resentence on all counts of conviction.
DISPOSITION
The matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.




/s/
Duarte, J.



We concur:



/s/
Nicholson, Acting P. J.





/s/
Mauro, J.