Filed 9/19/18 P. v. Skeen 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Siskiyou)
----
| THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM JAMES SKEEN,
Defendant and Appellant.
| C082926
(Super. Ct. No. 2016248)
|
A jury found defendant William James Skeen guilty of two counts of opening or maintaining a place for using or selling a controlled substance (counts 1 and 6), two counts of possession for sale of a controlled substance (counts 2 and 7—Health & Saf. Code, § 11378[1]), two counts of possession of a device used for smoking a controlled substance (counts 4 and 9), one count of being a felon in possession of ammunition (count 5),[2] one count of possession of marijuana for sale (count 11), and one count of manufacturing a controlled substance (count 12).[3] The offenses charged in counts 1 through 5, and 12, occurred on March 2, 2016, while counts 6 through 11 related to October 1, 2015. In a bifurcated proceeding, the trial court found true the allegations with respect to counts 2 and 7 that defendant had previous convictions for violating sections 11378 and 11379. The court later struck one of these allegations in the interests of justice pursuant to Penal Code section 1385.
The trial court sentenced defendant to a total term of 12 years in prison: an aggravated term of seven years on count 12; a consecutive term of eight months (one-third the middle term) on count 1;[4] a consecutive term of eight months (one-third the middle term) on count 5; and eight months for obstructing or resisting an executive officer in a separate case. The court also added a three-year enhancement under section 11370.2, subdivision (c) based on the prior drug offense. The prison terms on counts 2, 6, 7 and 11 were run concurrently. The court also stayed the prison terms on counts 2, 7 and 11 pursuant to Penal Code section 654.
On appeal, defendant purports to raise five separate arguments in support of his general assertion that he did not receive a fair trial. As we will discuss, defendant has failed to establish any error regarding these issues.
While defendant’s appeal was pending, section 11370.2, subdivision (c) was amended to eliminate the enhanced three-year term for a prior section 11378 or 11379 conviction. (Stats. 2017, ch. 677, § 1.) In supplemental briefing, defendant argues and the People concede that the change in the law applies retroactively. We agree, and conclude the enhancement under section 11370.2 must be stricken. We shall therefore affirm defendant’s conviction, but reverse the sentence and remand the matter to the trial court with directions to strike the section 11370.2, former subdivision (c) enhancement and to resentence defendant accordingly.
I. DISCUSSION
- Defendant’s Claims
With respect to his first numbered argument, defendant claims “[t]he evidence that the jury convicted him on for six of the charges was tainted because it was admitted over objection at trial and by virtue of 2 pre-trial defense motions, the Penal Code Sections 995 and 1538.5, that it was obtained illegally as to the October 1, 2015 ‘drug raid’ . . . . That evidence adduced therefrom was inadmissible as the product of an unreasonable search; i.e. no search warrant for [defendant].” To support this assertion, defendant attempts to incorporate by reference the arguments he made in the trial court.[5] This is improper. (People v. Meyer (2010) 186 Cal.App.4th 1279, 1282, fn. 6; Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 334.) Outside of this reference, he cites no argument or authority in support of his claim. This is insufficient. (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [“Where a point is merely asserted by appellant’s counsel without any argument of or authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court”].) These defects are fatal to his fourth and fifth arguments as well.[6]
Defendant’s second argument also relates to the search warrant: “The evidence that he was convicted on for the charges of October 1, 2015 that related to possessing for sale controlled substances that was derived from his cell phone and admitted over objection was illegally obtained; i.e. again no search and seizure warrant for” defendant. Defendant cites Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473, 189 L.Ed.2d 430] (Riley) in support of this argument and a portion of the trial court transcript where the trial court explained that Riley does not apply because “there was a search warrant that specifically mentioned cell phones or phones.” Neither citation assists defendant. As the trial court noted, Riley addresses the search incident to arrest exception to the warrant requirement and held “not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.” (Riley, supra, at p. 2493.) Here, the search warrant authorized officers to search a detached garage located at a specified address and seize any cellular telephones and access any messages thereon. On appeal, defendant contends the trial court’s reasoning would render Riley meaningless and “[a]ny warrant for any person could be used to seize any other person’s cell phone and willy nilly extract the data therein.” Defendant’s generalizations do not address the legally significant fact that the warrant was issued for the detached garage where his phone was located. “Constitutional concepts condemn ‘general’ warrants which impose little or no restriction on the area to be searched, the thing to be seized or the person to be arrested. [Citations.] The present warrant restricts search to designated places and seizure to designated articles.” (Williams v. Justice Court (1964) 230 Cal.App.2d 87, 101.) The fact that defendant was not named in the warrant is not dispositive. (See ibid. [“[A] warrant addressed to the search of a house or other place need not name the owner or custodian of the place or of the articles to be seized”].) Thus, defendant has not demonstrated error.
Defendant’s third contention is that the People’s argument, in the context of the motion to suppress, that he had no reasonable expectation of privacy in the detached garage conflicted with the charge that he opened or maintained the garage to use or sell controlled substances. (See § 11366.) He cites no authority for the proposition that these two positions taken in different procedural contexts necessarily conflict or that any purported conflict establishes any error. Again, defendant’s conclusory claims of error fail. (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
- Sentencing
In a supplemental brief, defendant contends recent changes to section 11370.2, subdivision (c) apply to him and his enhancement under this provision should be stricken. The People concede the point. We accept the concession.[7]
Senate Bill No. 180 (Stats. 2017, ch. 677, § 1), which became effective on January 1, 2018, while defendant’s appeal was pending, amends section 11370.2, subdivision (c) to limit the scope of the enhancement to apply only to prior felony convictions for a violation of section 11380. Here, defendant’s section 11370.2, subdivision (c) enhancement was based on a prior conviction for violating section 11378 or 11379.[8]
Absent evidence to the contrary, it is presumed the Legislature intended an amended statute reducing the punishment for a criminal offense to apply retroactively to defendants whose judgments are not yet final on the statute’s operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.) Because there is no indication the recent amendments to section 11370.2 were intended to operate prospectively only and defendant’s judgment is not yet final, defendant’s enhancement under the statute must be stricken.
The People contend that we should remand to the trial court so that it can be given the opportunity to reconsider its discretionary sentencing choices. We agree. “When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme.” (People v. Hill (1986) 185 Cal.App.3d 831, 834.)
II. DISPOSITION
Defendant’s sentence is reversed and the matter is remanded to the trial court with directions to strike the three-year Health and Safety Code section 11370.2, subdivision (c) enhancement and to resentence defendant consistent with this opinion. In all other respects, the judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
HULL, Acting P. J.
/S/
DUARTE, J.
[1] Undesignated statutory references are to the Health and Safety Code.
[2] The jury found defendant not guilty of being a felon in possession of ammunition on October 1, 2015 (count 10).
[3] The jury did not render a verdict on counts 3 or 8 because they were designated as lesser included offenses of counts 2 and 7.
[4] The reporter’s transcript mistakenly states the term for count 1 should run concurrently. In light of our decision to remand for resentencing, we need not address this further.
[5] We also note defendant’s statement of facts pertaining to the warrant and the search is equally unsupported. “ ‘It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.’ ” (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856, italics added.) Defendant improperly cites “I RT 191-245; II RT 301-601” to support his description of two searches. (See Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205 [“As a practical matter, the appellate court is unable to adequately evaluate which facts the parties believe support their position when nothing more than a block page reference is offered in the briefs—e.g., ‘C.T. pp. 1-20’, which upon examination turns out to be 20 nonsequential pages of deposition testimony”].) “ ‘ “It is neither practical nor appropriate for us to comb the record on [defendant’s] behalf.” ’ ” (People v. Smith (2015) 61 Cal.4th 18, 48.)
[6] Additionally, any arguments raised or only supported by authority on reply have been waived. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)
[7] This concession moots the People’s original argument that the trial court impermissibly sentenced defendant to a concurrent term on count two and a consecutive term on the section 11370.2 enhancement.
[8] As set forth above, the court struck one allegation in the interests of justice pursuant to Penal Code section 1385. It is not clear from the record which one.
