Filed 4/28/14 P. v. Bailey CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058100

v.                                                                       (Super.Ct.No. FSB1104924)

TOY LATESE BAILEY,                                                       OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,

Judge. Affirmed in part, remanded with directions in part.

         Jean Matulis, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Paige B.

Hazard, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant and appellant Toy Latese Bailey pled guilty to transportation of a

controlled substance for sale (Health & Saf. Code, § 11379, subd. (a)); possession of a

controlled substance (Health & Saf. Code, § 11350, subd. (a)); and resisting a peace

officer (Pen. Code, § 148, subd. (a)). In return, defendant was placed on probation for a

period of 36 months with various terms and conditions. On appeal, defendant contends

that (1) the trial court erred in denying her suppression motion; and (2) the matter must be

remanded because the trial court failed to calculate and award applicable presentence

custody credits. We agree that the matter must be remanded to allow the court to

calculate defendant’s presentence custody credits.

                                             I

                               FACTUAL BACKGROUND1

       On July 20, 2011, at around 3:00 p.m., Redlands Police Officer Daniel Sardegna

and his partner were on duty when they initiated a traffic stop on a vehicle driven by

defendant for speeding and illegally tinted windows. When Officer Sardegna approached

the vehicle, the officer could not see inside the vehicle. Defendant rolled down her

window to her neckline, and Officer Sardegna asked defendant to roll it down further so

he could safely see where her hands were placed. Defendant initially failed to comply

but eventually did so.




       1   The factual background is taken from the suppression hearing.



                                             2
       Officer Sardegna asked defendant for her identification and vehicle registration.

Defendant provided the officer with her vehicle registration and then began to look for

her identification. Defendant fumbled in her purse, which was located on the front

passenger seat; the center console; and then in the car’s glove box in an attempt to locate

her identification. During this time, defendant’s voice trembled, she seemed reluctant to

answer questions, raised her voice, and generally exhibited an attitude toward the officer.

After about two minutes, Officer Sardegna asked defendant for her name and date of

birth so he could run it in his computer to see if defendant had a valid driver’s license.

The officer also asked defendant to exit the vehicle because he did not feel safe with her

sitting in the vehicle. Officer Sardegna explained that defendant’s initial refusal to roll

down the window, her strange demeanor, and because he could not see inside the vehicle

all caused him to feel the situation would be better controlled with defendant out of the

car.

       After questioning the officer as to why she had to exit the vehicle, defendant

swung the door open and looked down at the floorboard. Defendant again began to argue

with the officer and was reluctant to get out of the vehicle. As defendant stepped out

from the vehicle, Officer Sardegna saw a red clear one-inch by one-inch plastic baggie on

the floorboard on the driver’s side. Defendant placed her foot on the baggie and tried to

slide it under the seat as she exited the vehicle. Defendant then “dove back into the

driver’s seat” and wrapped her arms around the seatbelt and headrest. While holding

onto the car, defendant screamed profanities and demanded to know the reason for her



                                              3
arrest. Officer Sardegna grabbed defendant by her arm and told her that she needed to

exit the vehicle. Based on his training and experience, Officer Sardegna believed the

baggie to be associated with narcotics packaging and that the baggie contained controlled

substances.2

       Other officers arrived to assist Officer Sardegna. Officer Sardegna told defendant

to let go of the headrest and to stop resisting. Defendant cursed at the officers and said

that she was pregnant and that they were hurting her. After a few minutes, the officers

pried defendant’s hands from the headrest, untangled them from the seat belt, and placed

her in handcuffs. The officers escorted defendant to the back of the vehicle and had her

sit on the curb. The officers also called paramedics because defendant had claimed she

was pregnant.3 Officer Sardegna asked defendant if she had any form of identification

and whether he could look inside the vehicle for her identification. Defendant responded

that she did not know, cursed at the officer, and did not give a “good response.”

       Officer Sardegna thereafter searched inside the vehicle for defendant’s

identification and told his partners that he also believed the vehicle contained narcotics.

Defendant’s open, unzipped purse was on the passenger seat near the center console with

the contents on the seat and hanging outside the purse. Officer Sardegna observed other

similar red one-inch baggies in defendant’s open purse near a black makeup bag. Officer

       2  Officer Sardegna acknowledged that when he later retrieved the baggie from the
driver’s side floorboard it was empty.

       3   Defendant was not pregnant and had falsely claimed to be.



                                              4
Sardegna looked inside defendant’s purse but did not find defendant’s identification.

Meanwhile, Officer Sardegna’s partner, Officer Liu, removed the makeup bag from the

purse. Officer Sardegna told him to look inside the bag for defendant’s identification.

Officer Liu opened the makeup bag and removed several baggies matching the one

Officer Sardegna saw on the driver’s side floorboard.4 The baggies contained

methamphetamine. The makeup bag also contained two glass pipes, a digital scale, and a

day planner. Defendant was thereafter placed under arrest.

                                             II

                                       DISCUSSION

       A.     Motion to Suppress

       The trial court twice denied defendant’s suppression motion, finding the officers

had probable cause to search the vehicle based on the totality of the circumstances

relating to defendant’s actions, the presence of the baggie on the driver’s side floorboard,

defendant’s active attempt to conceal it, and Officer Sardegna’s training and experience.5

       4  Officer Liu, who was called as a defense witness, testified that he believed
defendant’s purse was zipped up. Officer Liu also stated that he opened the black
makeup bag after he found defendant’s wallet which contained defendant’s driver’s
license. Officer Liu explained that after he showed Officer Sardegna defendant’s driver’s
license, Officer Sardegna told Officer Liu to look in the makeup bag because he believed
the vehicle contained narcotics. However, Officer Liu acknowledged that he did not
write a report at the time of the incident, which occurred one year and three months prior
to the suppression hearing.

       5  The trial court invited defendant to present authority to support a contrary ruling
and set a hearing for reconsideration of its ruling. Following supplemental briefing and
hearing further argument, the court denied defendant’s motion to reconsider the denial of
the motion to suppress evidence. The court, in upholding its earlier ruling, expressly
                                                                  [footnote continued on next page]


                                              5
Defendant argues that the trial court erred in denying her suppression motion because

there was no justification to search defendant’s makeup bag without a warrant.

        In reviewing the denial of a motion to suppress evidence, we defer to the trial

court’s express or implied factual findings where supported by the evidence and exercise

our independent judgment in determining whether, on the facts so found, the search or

seizure was reasonable under the Fourth Amendment. (People v. Weaver (2001) 26

Cal.4th 876, 924.) “The trial court also has the duty to decide whether, on the facts

found, the search was unreasonable within the meaning of the Constitution. . . . [I]t

becomes the ultimate responsibility of the appellate court to measure the facts, as found

by the trier, against the constitutional standard of reasonableness.” (People v. Lawler

(1973) 9 Cal.3d 156, 160, fn. omitted.)

        The Fourth Amendment to the United States Constitution guarantees “[t]he right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures. . . .” However, “[t]he Fourth Amendment does not

proscribe all state-initiated searches and seizures; it merely proscribes those which are

unreasonable.” (Florida v. Jimeno (1991) 500 U.S. 248, 250.)

        The Fourth Amendment prohibits seizures of persons, including brief investigative

detentions, when they are “‘unreasonable.’” (People v. Souza (1994) 9 Cal.4th 224, 229.)


[footnote continued from previous page]
found that defendant’s attempted concealment of the baggie suggested its use for an
illegal purpose. The court also noted the baggie’s unusual size and ruled it was
reasonable for Officer Sardegna to rely on his training and experience to suspect the
baggie was drug packaging.


                                              6
In order to pass constitutional muster, a detention must be “based on ‘some objective

manifestation’ that criminal activity is afoot and that the person to be stopped is engaged

in that activity.” (Id. at p. 230.) Thus, as specific to a vehicle stop, “a police officer can

legally stop a motorist only if the facts and circumstances known to the officer support at

least a reasonable suspicion that the driver has violated the Vehicle Code or some other

law.” (People v. Miranda (1993) 17 Cal.App.4th 917, 926, italics omitted.) Here, it is

undisputed that Officer Sardegna lawfully stopped defendant for traffic violations.

       Warrantless searches, although usually per se unreasonable, are considered

reasonable in various contexts. (Katz v. United States (1967) 389 U.S. 347, 357.) The

warrantless search of an automobile, for instance, can be justified on a variety of grounds,

among them: (1) probable cause to believe the car contains contraband (Carroll v.

United States (1925) 267 U.S. 132, 149); (2) the search is incident to the arrest of an

occupant of the vehicle (New York v. Belton (1981) 453 U.S. 454, 460, overruled on

another ground in Arizona v. Gant (2009) 556 U.S. 332, 343); and (3) the search is part of

the inventory of a lawfully impounded vehicle (South Dakota v. Opperman (1976) 428

U.S. 364, 375-376).

       Under the automobile exception to the Fourth Amendment’s prohibition against

warrantless searches, a vehicle, because of its mobility, may be searched without a

warrant when police have probable cause to believe it contains contraband. (Maryland v.

Dyson (1999) 527 U.S. 465, 466-467.) “The probable cause determination ‘must be

based on objective facts that could justify the issuance of a warrant by a magistrate and



                                               7
not merely on the subjective good faith of the police officers.’ [Citation.] ‘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.’ [Citation.]”

(People v. Carvajal (1988) 202 Cal.App.3d 487, 497.) The probable cause standard

“requires only a probability or substantial chance of criminal activity, not an actual

showing of such activity.” (Illinois v. Gates (1983) 462 U.S. 213, 243, fn. 13.)

       The fact that the contraband was found in a closed makeup bag located in

defendant’s purse does not alter the validity of the search for Fourth Amendment

purposes. “‘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.’ [Citation.] And our later cases describing [(United States v.] Ross [(1982) 456

U.S. 798)] have characterized [this rule] as applying broadly to all containers within a

car . . . .” (Wyoming v. Houghton (1999) 526 U.S. 295, 301.) “Contraband goods rarely

are strewn across the trunk or floor of a car; since by their very nature such goods must

be withheld from public view, they rarely can be placed in an automobile unless they are

enclosed within some form of container” (United States v. Ross, supra, 456 U.S. at

p. 820, fn. omitted), and all such containers that would be subject to search under a

warrant (see ibid.) may be searched under the automobile exception to the warrant

requirement as well. The “scope of the warrantless search authorized by [the automobile]

exception is no broader and no narrower than a magistrate could legitimately authorize by

warrant.” (Id. at p. 825.)



                                               8
       Our Supreme Court has also stated that “[l]aw enforcement officers may ‘draw on

their own experience and specialized training to make inferences from and deductions

about the cumulative information available to them that “might well elude an untrained

person.” [Citations.]’” (People v. Hernandez (2008) 45 Cal.4th 295, 299, citing United

States v. Arvizu (2002) 534 U.S. 266, 273.) This is consistent with what the United States

Supreme Court held in Ornelas v. United States (1996) 517 U.S. 690, 700: A “police

officer may draw inferences based on his own experience in deciding whether probable

cause exists.”

       As explained by People v. Nonnette (1990) 221 Cal.App.3d 659, 666: “Courts

have held that certain containers are so distinctive in nature that an officer may, based on

his [or her] experience with such containers in previous arrests, have probable cause to

search or seize such a distinctive container in plain view. Examples of such containers

are paper bindles (People v. Lilienthal (1978) 22 Cal.3d 891, 898-890 [150 Cal.Rptr. 910,

587 P.2d 706]; People v. Clayton (1970) 13 Cal.App.3d 335, 337-338 [91 Cal.Rptr.

494]), heroin balloons (People v. Lee (1987) 194 Cal.App.3d 975, 984 [240 Cal.Rptr.

32]), and brick-shaped packages smelling like marijuana. (People v. McKinnon (1972)

7 Cal.3d 899, 917 [103 Cal.Rptr. 897, 500 P.2d 1097].) However, where the container is

a common one with legitimate purposes, its presence is not enough to establish probable

cause. (Remers v. Superior Court (1970) 2 Cal.3d 659, 662-663 [87 Cal.Rptr. 202, 470

P.2d 11] [tinfoil package]; People v. Holt (1989) 212 Cal.App.3d 1200, 1206-1207 [261




                                             9
Cal.Rptr. 89] [foil-wrapped package]; People v. Valdez (1987) 196 Cal.App.3d 799, 806-

807 [242 Cal.Rptr. 142] [film canister].)”

       The Nonnette court further explained, “‘. . . whether a common container

constitutes a suspicious circumstance, capable of contributing to the totality of

circumstances necessary for probable cause, depends on the total factual context in which

the container is observed, including the prior experience of the observing officer with

containers of the sort at issue . . . .’” (People v. Nonnette, supra, 221 Cal.App.3d at

p. 667.) “Since the presence of a single, legitimate container is not inherently suspicious,

detailed testimony to establish the officer’s reasonable basis for connecting this single

container to criminal activity is required.” (Id. at pp. 667-668.) In Nonnette, the officer

saw not one baggie, but several baggies of the type he knew to be used to package drugs.

He also saw four men ducking down in a car in an area known for high drug traffic.

Altogether this constituted probable cause to justify issuance of a search warrant for the

car. (Id. at pp. 668-669.)

       Here, Officer Sardegna testified that he saw a small baggie in plain view on the

driver’s side floorboard; that defendant had attempted to conceal the baggie; and that the

baggie resembled those used in drug trafficking. In addition, after defendant realized

Officer Sardegna had seen the baggie, defendant dove back into the car and resisted the

officers. Though the one-inch by one-inch baggie is not peculiar, the trial court here

noted its unusual size as well as the officer’s training and experience in identifying the

baggie to be the type often used to traffic drugs. Moreover, although defendant was



                                             10
stopped for traffic violations, her behavior at the time of the stop together with the

presence of the baggie in plain view and defendant’s attempts to conceal it significantly

altered the situation and gave Officer Sardegna a reasonable belief that there may have

been narcotics in the baggie and elsewhere in the vehicle. The circumstances established

probable cause to search the vehicle for narcotics-related contraband.

       The facts in People v. Lilienthal, supra, 22 Cal.3d 891 also support the trial court’s

denial of defendant’s suppression motion. In Lilienthal, the police stopped the defendant

for a traffic violation. (Id. at p. 898.) The defendant got out of his car as the officer

approached and asked to see his driver’s license. As the defendant fumbled through his

wallet, “a neatly folded squared piece of paper fell from his wallet to the ground.” (Ibid.)

The defendant immediately placed his foot over the piece of paper. The officer suspected

that the paper contained narcotics and asked the defendant to step back from it so he

could examine it. The officer testified that his suspicion was based on his experience in

making numerous narcotics arrests where cocaine or heroin was transported in paper

bindles similar to the one dropped by the defendant. (Ibid.) After finding in the packet a

white powdery substance which he suspected to be either heroin or cocaine, the officer

looked through the defendant’s wallet and found another similar paper packet containing

the same white powdery substance. (Ibid.)

       Upholding the search in Lilienthal, the Supreme Court focused on the officer’s

testimony that his suspicion that the paper contained narcotics “was based on his

experience in making numerous arrests where cocaine or heroin was transported in paper



                                              11
bindles similar to the one dropped by [the] defendant. Reasonable grounds for believing

a package contains contraband may be adequately afforded by the package’s shape,

design, and the manner in which it is carried. (People v. McKinnon (1972) 7 Cal.3d 899,

917 [103 Cal.Rptr. 897, 500 P.2d 1097].) We conclude that a prudent man of Officer

Brookbush’s experience could reasonably believe that the distinctively folded paper that

fell from defendant’s wallet contained contraband. [Citations.]” (People v. Lilienthal,

supra, 22 Cal.3d at pp. 898-899.)

       Defendant argues that because there was no plain view of the contents of the

closed makeup bag, under Lilienthal, the search was not permissible, and suggests there

must be an independent basis to search each container within the vehicle. Defendant’s

argument is flawed because once probable cause is established to search 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, supra, 456 U.S. at pp. 800,

825, italics added.) Courts have characterized this rule “as applying broadly to all

containers within a car.” (Wyoming v. Houghton, supra, 526 U.S. at p. 301.)

       Relying on People v. Huntsman (1984) 152 Cal.App.3d 1073, defendant also

asserts that there was nothing particularly incriminating about the plastic baggie observed

here. In Huntsman, the officers observed two men behind a vehicle in a parking lot

located in a high prostitution area. One of the men was holding a large Ziploc bag, but

the officers were unable to see whether the bag contained anything. One of the men was

looking around, and when the officer’s unmarked vehicle approached, the men slammed



                                              12
the trunk lid closed and walked away. (Id. at p. 1079.) The court held that where

probable cause to search is based on an officer’s observation of the defendant holding a

container that is commonly used for innocent purposes, the People must present evidence

indicating the specific basis for the officer’s suspicion that the container holds contraband

or evidence of a crime. (Id. at pp. 1078, 1084.)

       The court in People v. Nonnette, supra, 221 Cal.App.3d 659, distinguishing its

prior holding in Huntsman, explained: “Of primary concern was the lack of foundational

testimony linking the bag with an illicit purpose, which would have made the officer’s

sighting of defendant holding the bag a suspicious circumstance contributing to probable

cause. We noted that the officer’s testimony did not indicate any expertise in

determining whether such bags may contain contraband or any experience with such bags

in prior narcotic arrests. [Citation.] . . . Accordingly, we hold that, in order to permit

judicial review of the legality of a detention, arrest, or search, an officer’s reasons for

suspecting that a common container is being used for unlawful purposes must be

articulated on the record.’ [Citation.]” (People v. Nonnette, supra, at p. 667.)

       Here, contrary to Huntsman, Officer Sardegna testified that he had training and

experience related to narcotics packaging and drug sales and that he personally knew that

small one-inch baggies such as the one he observed were used to hold narcotics. The red

one-inch by one-inch baggie, though possessing some legitimate uses, was described as

unusual. Additionally, unlike the officer in Huntsman, Officer Sardegna saw defendant

concealing the baggie as well as other similar baggies on top of defendant’s open purse



                                              13
near the makeup bag. Moreover, in this case there was more than just appearance of the

baggie: defendant was nervous, fumbling through her purse, and resisting even though

the officer simply asked for her driver’s license.

       For these reasons, we conclude that the trial court did not err when it denied

defendant’s motion to suppress.

       B.     Custody Credits

       The probation report noted that defendant had served a total of four days in

custody: two days from July 20, 2011 to July 21, 2011, and two days from November 17,

2011 to November 18, 2011. At the time of sentencing, in regard to custody credits, the

trial court mentioned “new [section] 4019,” but failed to calculate or award any specific

number of presentence custody credits. Defendant argues that the matter must be

remanded to allow the trial court to calculate and award applicable credits.

       The People respond that pursuant to Penal Code section 4019, subdivision (e),

defendant is not entitled to any custody credits because the probation report notes

defendant served a total of four days in custody, not the required six days. The People

are mistaken. The People incorrectly rely on the former version of section 4019,

subdivision (e), which was effective 2009 to 2010, to support their position. Former

section 4019, subdivision (e), provided: “(e) No deduction may be made under this

section unless the person is committed for a period of six days or longer.” (Stats. 2009-

2010, 3rd Ex.Sess., ch. 28, § 50, eff. Jan. 25, 2010.) However, defendant committed her

crime in 2011 and served time in custody in 2011. During this time period, section 4019,



                                             14
subdivision (e), stated: “(e) No deduction may be made under this section unless the

person is committed for a period of four days or longer.” (Stats. 2011, ch. 15, § 482

(A.B. 109), eff. Apr. 4, 2011.)

       In any event, the People are also mistaken because the trial court here failed to

award any custody credits to defendant at the time of sentencing. Penal Code

section 4019 merely sets limits on conduct credits, not all presentence custody credits.

       “A criminal defendant is entitled to accrue both actual presentence custody

credits . . . and conduct credits . . . for the period of incarceration prior to sentencing.”

(People v. Kennedy (2012) 209 Cal.App.4th 385, 395.) “[C]ustody credits are

constitutionally required and awarded automatically on the basis of time served.” (Id. at

p. 396.) “[I]t is the duty of the sentencing court to calculate actual days spent in custody

pursuant to [Penal Code] section 2900.5, subdivision (d).” (People v. Thornburg (1998)

65 Cal.App.4th 1173, 1175-1176, disapproved on other grounds in People v. Buckhalter

(2001) 26 Cal.4th 20, 40.) “A sentence that fails to award legally mandated custody

credit is unauthorized and may be corrected whenever discovered.” (People v. Taylor

(2004) 119 Cal.App.4th 628, 647; People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8

[“The failure to award an adequate amount of credits is a jurisdictional error which may

be raised at any time.”].) “[C]redit shall be given only where the custody to be credited is

attributable to proceedings related to the same conduct for which the defendant has been

convicted.” (Pen. Code, § 2900.5, subd. (b).)




                                               15
       Here, the trial court failed to calculate any presentence custody credits. As such,

we will remand the matter and direct the trial court to calculate and award presentence

custody credits to which defendant is entitled.

                                             III

                                      DISPOSITION

       The matter is remanded to the trial court with directions to calculate and award

presentence custody credits to which defendant is entitled. In all other respects, the

judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                RAMIREZ
                                                                                         P. J.
We concur:



McKINSTER
                          J.



KING
                          J.




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