Filed 4/27/21 P. v. Muaddi CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Michael Mike Muaddi entered into a plea agreement under which he pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and possession of a false compartment for concealing a controlled substance (Health & Saf. Code, § 11366.8, subd. (a)) in exchange for probation and dismissal of a misdemeanor cocaine possession count and a prison prior enhancement allegation.[1] The court granted defendant probation for three years with 210 days in jail and stayed all fines and fees due to defendant’s inability to pay.

On appeal, defendant contends that a remand is required because he is entitled to the retroactive application of newly amended Penal Code section 1203.1,[2] which limits felony probation terms to two years. The Attorney General concedes that a remand is required, and we agree and reverse the order of probation.

I. BACKGROUND

On June 13, 2019, at 10:14 p.m., Officer Klein was on patrol with his trainee, Officer MacKenzie, when he saw defendant driving a vehicle with only one functioning headlight. Klein, who was driving, began following defendant’s vehicle. When Klein put on his lights, defendant made a “sudden and severe” “furtive movement across the front passenger compartment of the vehicle.” His movement was so “quick and sudden” that his vehicle “swerved” and hit the curb.

Klein pulled over defendant’s vehicle and made contact with defendant. The entire encounter was recorded on Klein’s body-worn camera. Klein noticed that defendant had “nervous, agitated behavior” and was displaying signs that he was under the influence of methamphetamine. Although it was a cool night, defendant was perspiring. Klein had encountered defendant several times before and was aware that defendant had a history of narcotics possession, use, and sales, and of being under the influence. Klein also knew that defendant had twice before fled pursuing police officers.

Klein asked defendant to exit the vehicle, and defendant did so. As he did so, a small bag fell on the ground from his clothing. Klein could see that there were “obvious bulges in his pockets,” which made Klein concerned that defendant might have a weapon. MacKenzie conducted a pat search, which disclosed no weapons. Klein retrieved the fallen bag, which was a small, clear ziploc bag of the sort used to package small amounts of controlled substances for sale. Klein asked to search the vehicle, but defendant refused to consent.

At this point, Klein was investigating the non-functioning headlight, defendant’s expired registration, and his possibly being under the influence of a controlled substance. Klein decided to call in Officer Ashe and his drug-sniffing dog, Rick, while MacKenzie worked on a citation for the Vehicle Code violations and they evaluated defendant for being under the influence.

Officer Ashe and Rick arrived about six minutes later, at 10:27 p.m. When Ashe arrived, he saw MacKenzie working on the citation. Rick sniffed around defendant’s vehicle and alerted at the open driver’s side window two minutes after Ashe’s arrival at the scene. After this alert, Ashe opened the passenger’s side door and let Rick inside the vehicle to sniff for narcotics. Rick alerted to the vehicle’s vents and center console area, particularly to the driver’s side vent. Ashe opened the driver’s side vent and found inside it a pouch containing an ounce of methamphetamine and a gram of cocaine. At this point, Ashe had been at the scene for just five minutes, and MacKenzie had not yet finished writing the citation. A false compartment was also found in defendant’s vehicle. Defendant acknowledged the narcotics were his.

Defendant was charged by amended felony complaint with possession of methamphetamine for sale, possession of a false compartment for concealing a controlled substance, and misdemeanor possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), and it was further alleged that he was on bail at the time of these offenses (§ 12022.1) and had served a prison term for a prior felony conviction (§ 667.5, subd. (b)).

Before the preliminary examination, defendant’s trial counsel filed a suppression motion asserting that the warrantless search of defendant’s car violated the Fourth Amendment to the United States Constitution because it was unreasonable. He argued that the officers “deliberately dragged out the citation process” in order to conduct the dog sniff. The prosecution argued that Klein had probable cause to arrest defendant for being under the influence even before the dog sniff based on the totality of the circumstances. The court denied the motion because it found that the detention was lawful, the pat search was lawful, the dog sniff was reasonable, and Rick’s alert justified the search of the vehicle. The court noted that the officers had not finished citing defendant for the Vehicle Code violations when the dog sniff occurred, so the detention was not unduly prolonged.

Defendant was held to answer on all of the charges and allegations. After the information was filed, defendant entered into a plea agreement under which he pleaded no contest to the possession for sale and false compartment counts and admitted the on-bail enhancement in exchange for probation and dismissal of the cocaine possession count and prison prior enhancement allegation. The court dismissed the cocaine possession count, the prison prior, and the on-bail enhancement and granted defendant probation for three years with 210 days in jail. It stayed all fines and fees due to defendant’s inability to pay. Defendant timely filed a notice of appeal challenging the denial of his suppression motion. He also requested a certificate of probable cause, which the trial court eventually granted.

Appointed appellate counsel filed an opening brief which stated the case and the facts but raised no issues. Defendant was notified of his right to submit written argument on his own behalf but did not avail himself of the opportunity. We reviewed the record under People v. Wende (1979) 25 Cal.3d 436 and requested briefing on the only arguable issue, the applicability of the recent amendment to section 1203.1, which limits the term of probation for a felony conviction to two years. Defendant now argues that he is entitled to a remand for the trial court to apply the amended statute. The Attorney General concedes that defendant is entitled to such a remand. We agree.

Assembly Bill No. 1950 (2019-2020 Reg. Sess.), which took effect on January 1, 2021 (Stats. 2020, ch. 328, § 2), amended section 1203.1 to limit to two years the length of a probationary period for a felony conviction. (§ 1203.1.) We agree with the cases that have held that this amendment is retroactive to all nonfinal cases. (People v. Sims (2021) 59 Cal.App.5th 943; People v. Quinn (2021) 59 Cal.App.5th 874; People v. Burton (2020) 58 Cal.App.5th Supp. 1). Defendant’s case is not yet final. Consequently, a remand is appropriate for the trial court to apply the amended statute.

II. DISPOSITION

The order is reversed, and the matter is remanded with directions to the trial court to apply the amended version of section 1203.1.

_______________________________

ELIA, ACTING P.J.

WE CONCUR:

_____________________________

BAMATTRE-MANOUKIAN, J.

_____________________________

GROVER, J.

People v.Muaddi

H047548

[1] He also admitted an on-bail enhancement allegation (Pen. Code, § 12022.1), which was later dismissed because the underlying offense had been reduced to a misdemeanor.

[2] All further statutory references are to the Penal Code unless otherwise indicated.