Filed 4/24/17 P. v. Huebner 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yuba)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

GERALD PATRICK HUEBNER,

Defendant and Appellant.


C078955

(Super. Ct. No. CRF14137)


A jury convicted defendant Gerald Patrick Huebner of various drug and firearm related counts. On appeal, he first contends reversal is required because his cell phone was searched without a warrant. At the time of the search, People v. Diaz (2011) 51 Cal.4th 84, 93 (Diaz) permitted cell phone searches incident to a lawful arrest. But by the time of trial, Riley v. California (2014) 134 S.Ct. 2473, 2495 (Riley) held the opposite. We conclude the good faith exception applies because the officers were acting in objectively reasonable reliance on then existing appellate precedent.
Defendant next contends the trial court erred in instructing the jury, over defense counsel’s objection, on adoptive admissions. The instruction pertained to incoming text messages on his phone. He argues the text messages were not admissions, nor was there evidence he had read all the text messages. We conclude there was no instructional error.
Defendant finally contends the trial court erred in failing to stay execution of sentence, under Penal Code section 654, on count 4, possessing a firearm as a felon. The People concede error, and we agree. We will correct that error and otherwise affirm.
BACKGROUND
Defendant’s First Arrest and the Search of his Cell Phone
(Counts 1–3)
On March 4, 2014, an officer stopped defendant in his truck for having an obstructed license plate. Via dispatch, the officer learned there was no record on the license plate number. Defendant said he had recently bought the truck.
When another officer arrived, defendant was asked to step out of the truck. Defendant then consented to a search of the truck.
Under the driver’s seat, an officer found a digital scale. In the center console, an officer found a Ziploc bag with 0.8 grams of methamphetamine. The officers arrested defendant and secured him in a squad car.
After the arrest, the officers continued the search. On the passenger side, they found two bags of marijuana, one with 0.6 grams, and one with 86 grams. In the center console, they found a digital scanner and a cell phone.
Under the hood, officers found a zipper bag containing several large sandwich bags. One bag contained 24 individually packaged plastic Ziploc bags. Each bag had a gold and black pink panther symbol on it and 2 grams of methamphetamine inside. They also found a debit card and an operable digital scale.
An officer searched the cell phone and discovered several sets of text messages. Five were presented at trial as exhibits:
People’s Exhibit 5 :
“[Incoming:] Its real good its like ice but the price is 600 thats without me making nothing but its worth it
[Incoming:] Hey can u come by this is shadi
[Incoming:] I got 80 I need more to give this person what they want”
People’s Exhibit 6:
“[Incoming:] Hey this is Josh is it to late to get a ball
[Outgoing:] Do you still need a that
[Incoming:] Yeah if its not to late been waiting for the reply”
People’s Exhibit 7:
“[Incoming:] How much will u charge me a ball so I can flip it since I stop smoking I know I can flip it.”
People’s Exhibit 8:
“[Outgoing:] I’ve got 460.
[Outgoing:] Call me I need a whole one ASP.”
People’s Exhibit 9:
“[Incoming:] Hey it’s shadi u think u could front me a 20 please please. . .
[Outgoing:] You said you had 20
[Incoming:] Yes . . .
[Incoming:] I have 20 now u think u can do a gram and I pay u the rest later . . . .”
Defendant’s Second Arrest
(Counts 4–8)
Four months after his first arrest, defendant was again found with contraband. Officers found a loaded handgun in defendant’s waistband, along with 0.5 grams of methamphetamine and 2.5 grams of marijuana on his person. In his truck, they found Ziploc bags with packaging materials for narcotics and a digital scale.
The Jury Instruction on Adoptive Admissions
At trial, the jury was instructed on adoptive admissions using CALCRIM No. 357. Prior to giving the instruction, the following colloquy occurred:
“THE COURT: . . . People requested adoptive admission concerning the texts.
[PROSECUTION]: That is one of the areas I was thinking of. I’m not sure.
THE COURT: There was the solicitation to buy.
[PROSECUTION]: Right.
THE COURT: So I’m going to . . . .
[DEFENSE]: Solicitation? I don’t think that was [defendant’s] statement; that was texts coming in to the phone.
THE COURT: Adoptive admission. He didn’t text back, ‘What do you mean?’ So I see the argument here, the accusation, it tended to connect the defendant with the commission of the crime. It didn’t accuse him of a crime but sort of silence in the face of accusation. So I’ll leave that in. If they conclude that is what occurred, that just means they know how to evaluate it.”
The trial court later instructed the jury: “If you conclude that someone made a statement outside of court that tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true: One, the statement was made to the defendant or made in his presence; two, the defendant heard and understood the statement; three, the defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true; and four, the defendant could have denied it but did not. [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. If you decide that any of those requirements has not been met, you must not consider either the statement or the defendant’s response for any reason.”
Jury Verdict and Sentencing
As to the first arrest, the jury convicted defendant of possessing methamphetamine for sale (Health & Saf. Code, § 11378; count 1); transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 2); and possessing more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (c); count 3).
As to the second arrest, the jury convicted defendant of possessing a firearm as a felon (§ 29800, subd. (a); count 4); possessing ammunition as a felon (§ 30305, subd. (a)(1); count 5); carrying a concealed firearm in a vehicle (§ 24500, subd. (a)(1); count 6); possessing a controlled substance while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a); count 7); and possessing marijuana (Health & Saf. Code, § 11357, subd. (b); count 8). The trial court also found true various enhancements.
The trial court imposed an aggregate 13-year 8-month sentence. As part of that aggregate term, the court imposed the 4-year upper term for the principle term, count 7, possessing a controlled substance while armed with a loaded firearm. Over defense counsel’s objection, it also imposed a consecutive 8-month term (one-third the middle) for count 4, possessing a firearm as a felon. Defense counsel had argued for a stay of punishment under section 654 on that count. The trial court did, however, stay execution of sentence on counts 1, 5, and 6.
DISCUSSION
I
The Good Faith Exception Applies to the Cell Phone Search
Defendant first contends reversal is required because the warrantless search of his cell phone was unlawful. He argues he never consented to the search, and under Riley v. California, supra, 134 S.Ct. 2473, a warrant is required to search a phone incident to an arrest. He notes, at the time of the search, Riley had been fully briefed and was scheduled for oral argument. And by the time of his trial, Riley was controlling authority. Defendant further argues his trial counsel rendered ineffective assistance in failing to move to suppress evidence from the phone search.
The People respond that the good faith exception applies because, at the time of the search, the officers were acting in reasonable reliance on Diaz, supra, 51 Cal.4th 84, 88, 101 that held valid a warrantless search of a cell phone incident to arrest. We agree with the People.
The exclusionary rule safeguards Fourth Amendment rights through its deterrent effect. (Herring v. United States (2009) 555 U.S. 135, 139-140.) But not every Fourth Amendment violation warrants exclusion. (Id. at p. 140.) “[S]earches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” (Davis v. U.S. (2011) 564 U.S. 229, 232.)
While this case was pending, the California Supreme Court decided People v. Macabeo (2016) 1 Cal. 5th 1206 that considered whether the good faith exception applied to a warrantless search of a cell phone. As here, Macabeo’s search occurred after Diaz, supra, 51 Cal.4th 84, but before Riley. The Macabeo court held the good faith exception did not apply. (Macabeo at pp. 1224-1226.) Although, at the time of the search, Diaz allowed a cell phone search incident to an arrest, Macabeo’s phone was not searched incident to an arrest. (Macabeo at p. 1219.) Macabeo was not arrested before the search, nor would the circumstances have permitted an arrest. (Id. at pp. 1223-1224.) Accordingly, the officers’ conduct in searching the phone was deliberate and exclusion was appropriate. (Id. at p. 1226.)
We directed the parties to address Macabeo’s applicability here. The People maintain Macabeo does not bar application of the good faith exception because, unlike in Macabeo, defendant’s phone was searched incident to a lawful arrest.
Defendant maintains Macabeo, supra, 1 Cal.5th 1206 supports his position. He argues the search was unlawful because he was no longer in the truck when the officers searched and seized his phone. Further, searching the phone bore no rational relationship to the officers’ need to secure weapons, prevent escape, or preserve evidence. He also argues the good faith exception does not apply because case law was unsettled at the time of the search, and the record does not show the officer was aware of Diaz, supra, 51 Cal.4th 84 when he searched the phone. We agree with the People.
Here, when defendant’s phone was searched following his arrest, Diaz, supra, 51 Cal.4th 84, the binding appellate precedent at the time, permitted the search of a cell phone incident to an arrest. The officer’s conduct was thus objectively reasonable, and the good faith exception applies.
Defendant’s arguments to the contrary are not persuasive. That defendant was in a squad car when the phone was seized does not render the search invalid. Officers may search a vehicle incident to an arrest when “it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ” (Arizona v. Gant (2009) 556 U.S. 332, 343.) Here, before the arrest, officers found methamphetamine and a scale in the truck. It was thus reasonable to believe additional evidence of the crime would be found in the truck. (See People v. Nottoli (2011) 199 Cal.App.4th 531, 553 [the defendant’s arrest for “ ‘being under the influence of a controlled substance’ supplied a reasonable basis for believing that evidence ‘relevant’ to that type of offense might be in his vehicle”].)
Having properly seized the phone, the subsequent search of the phone was objectively reasonable under then existing authority. (See Diaz, supra, 51 Cal.4th at p. 93 [cell phone was immediately associated with the defendant’s person and thus its warrantless search was valid]; People v. Nottoli, supra, 199 Cal.App.4th at p. 558 [“We discern no principled reason to distinguish between a cell phone found on an arrestee’s person during a search incident to arrest and a cell phone found in a passenger compartment during a vehicular search incident to arrest”].)
Defendant’s argument that case law was unsettled at the time does not alter this conclusion: though the United States Supreme Court was then considering Riley, supra, 134 S.Ct. 2473, Diaz, supra, 51 Cal.4th 84 bound California courts. Similarly, it is of no matter the record does not show the officer was aware of Diaz. (See People v. Arredondo (2016) 245 Cal.App.4th 186, 206, fn. 14 [“The label ‘good faith’ is a misnomer insofar as the exception is said to depend not on the officer’s subjective mental state but on the objective reasonableness of the officer’s conduct in light of the circumstances”].)
Accordingly, the search was conducted in objectively reasonable reliance on binding appellate precedent at the time, and the good faith exception applies. (See Davis v. U.S., supra, 564 U.S. at p. 232.)
II
The Trial Court did not Err by Instructing on Adoptive Admissions
Defendant next contends the trial court prejudicially erred by instructing the jury on adoptive admissions over defense counsel’s objection. He argues the incoming text messages were not admissions within the meaning of Evidence Code section 1221 because they did not accuse him of wrongdoing, and there was no evidence he had read the incoming texts to which he did not respond. We conclude there was no instructional error.
Evidence Code section 1221 permits evidence of a statement offered against a party if the party, while knowing of its content, manifested his or her adoption or belief in its truth “by words or other conduct.”
Here, the adoptive admission instruction pertained to the incoming text messages that, in turn, pertained to drug sales (“it’s real good. It’s like ice, but the price is 600”; “is it to late to get a ball”; “How much will u charge me a ball so I can flip it” and “u think u could front me a 20”). In two instances, defendant responded to an incoming text (“Do you still need a that” and “You said you had 20”). These exchanges suffice to warrant an adoptive admission instruction. (See People v. Carter (2003) 30 Cal.4th 1166, 1198 [“Trial courts may certainly instruct on [adoptive admissions] if they think it best to do so”].)
We reject defendant’s assertion the texts did not accuse him of wrongdoing. “For the adoptive admission exception to apply . . . a direct accusation in so many words is not essential.” (People v. Fauber (1992) 2 Cal.4th 792, 852.) Here, the text messages contemplate the sale of contraband. And as to defendant’s assertion there was no evidence he read the messages that did not include outgoing responses, even if this is so, the two exchanges in which he did respond were alone sufficient to warrant the instruction.
The trial court, therefore, did not err in instructing the jury on adoptive admissions.
III
Execution of Punishment on Count 4 must be Stayed under Section 654
Defendant contends the trial court erred in imposing an unstayed sentence on count 4, possessing a firearm as a felon (§ 29800, subd. (a)). He reasons, the act that gave rise to count 4, also gave rise to count 7, possessing methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)). The People concede error, and we agree. (See People v. Jones (2012) 54 Cal.4th 350, 352 [section 654 prohibited separate punishment for possessing a firearm as a felon; carrying a concealed firearm; and carrying an unregistered loaded firearm in public].)
We will therefore modify the judgment to impose the upper term of three years and stay execution of that punishment.
DISPOSITION
We amend the judgment to impose the upper term of three years on count 4 (Pen. Code, § 29800, subd. (a)), possessing a firearm as a felon, and order execution of that sentence stayed pursuant to Penal Code section 654. As amended, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.



/s/
HOCH, J.



We concur:



/s/
BLEASE, Acting P. J.



/s/
HULL, J.