Filed 8/20/15 P. v. Pour 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C076213

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F02091)

         v.

BRYAN JOSEPH POUR,

                   Defendant and Appellant.




         A jury found defendant Bryan Joseph Pour guilty of possession of
methamphetamine. The trial court suspended imposition of sentence and placed
defendant on five years’ Proposition 36 probation.
         On appeal, defendant contends the trial court erred in denying his suppression
motion and the case should be remanded to the trial court for resentencing pursuant to
Proposition 47. We affirm.




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                                     BACKGROUND
       On March 31, 2013, about 8:07 p.m., Sacramento Police Officer Sean
Cunningham and his partner Gregory Galliano responded to a suspicious vehicle call
regarding two men outside of a vehicle parked in front of a location in a residential area.
The officers spotted a parked vehicle in the area, a green Toyota 4Runner. The Toyota
had two male passengers and a dog. The officers parked their patrol car behind the
Toyota close enough for a “typical traffic stop” without blocking it. The officers did not
activate the siren or use the PA system; they used the patrol car’s spotlight because it was
dark outside.
       The officers approached the 4Runner, with Officer Cunningham contacting the
driver, defendant. The other passenger, Morgan Davis, sat behind defendant but within
reach of the center console. Defendant provided identification; a records check indicated
that Davis gave the officers a false name. Officer Galliano asked Davis to step out of the
vehicle, and Officer Cunningham asked Davis for his real name, which he gave.
       Officer Galliano told Officer Cunningham that Davis was on searchable probation.
After Davis was handcuffed and put in the patrol car, Officer Cunningham decided to
conduct a probation search of the 4Runner. Officer Cunningham informed defendant of
the impending search and asked if he had anything illegal in the vehicle. Defendant
produced a jar containing marijuana and a knife. He said that he did not have a medical
marijuana card.
       Officer Cunningham asked defendant to exit the 4Runner. He conducted a brief
patdown of defendant and asked him to sit at the front bumper of the patrol car.
Defendant complied and Officer Cunningham started the search. He first searched the
driver’s side and then went to the center console, where he found a film canister that
appeared to contain methamphetamine. Officer Cunningham then did a quick search of
the vehicle, handcuffed defendant, told him he had found methamphetamine in the center



                                             2
console, and gave defendant his Miranda1 warnings. Asked whether his fingerprints
were on the film canister, defendant said they were. An additional search of the 4Runner
found a camera bag in the front passenger seat that contained another glass jar of
marijuana, methamphetamine, two narcotics smoking pipes, and a marijuana smoking
pipe.
        The magistrate denied the suppression motion, finding the search justified as a part
of Davis’s probation search condition. The court also found the search justified by
defendant’s initial admission that he had marijuana.
                                       DISCUSSION
                                              I
                                    Suppression Motion
        Defendant contests the denial of his suppression motion. He asserts that the search
of the center console that discovered the methamphetamine was not justified by Davis’s
probation search condition, and defendant’s admission that he had a jar of marijuana was
the product of a Miranda violation. We disagree.
        “ ‘[I]n reviewing a determination on a motion to suppress, we defer to the trial
court’s factual findings which are supported by substantial evidence and independently
determine whether the facts of the challenged search and seizure conform to the
constitutional standard of reasonableness.’ ” (People v. Ferguson (2003)
109 Cal.App.4th 367, 371.) We are “bound by the trial court’s resolution of disputed
facts and inferences as well as its evaluations of credibility, including [those that] seemed
either untruthful or inaccurate, where . . . the findings are supported by substantial
evidence.” (People v. Troyer (2011) 51 Cal.4th 599, 613.) “If the challenged police
conduct is shown to be violative of the Fourth Amendment, the exclusionary rule requires




1       Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

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that all evidence obtained as a result of such conduct be suppressed. [Citations.]”
(People v. Williams (1988) 45 Cal.3d 1268, 1299.)
       The burden is on the defendant to show that police officers acted unlawfully.
(People v. Williams, supra, 45 Cal.3d at p. 1300.) It is well settled that the warrantless
search of an automobile based upon probable cause to believe that the vehicle contains
evidence of a crime does not contravene the Fourth Amendment’s warrant requirement.
(California v. Acevedo (1991) 500 U.S. 565, 569 [114 L.Ed.2d 619, 627].) An officer
who discovers a passenger in a car is on probation with a search condition may search the
interior of the car. (People v. Schmitz (2012) 55 Cal.4th 909, 926-927; see also People v.
Baker (2008) 164 Cal.App.4th 1152, 1159 [treating search of passenger compartment
based on passenger’s probation or parole search status equally].) However, the officer is
restricted to “those areas of the passenger compartment where the officer reasonably
expects that the [passenger] could have stowed personal belongings or discarded items
when aware of police activity.” (Schmitz, at p. 926.)
       People v. Schmitz expressly left undecided whether a search based on a
passenger’s status as a searchable probationer or parolee extends to “closed
compartments of the car like the glove box, center console, or trunk . . . .” (People v.
Schmitz, supra, 55 Cal.4th at p. 926, fn. 16.) However, People v. Schmitz instructs that
“[t]he reasonableness of such a search must necessarily take into account all the attendant
circumstances, including the driver’s legitimate expectation of privacy in those closed
compartments, the passenger’s proximity to them, and whether they were locked or
otherwise secured.” (Ibid.)
       Davis was in the backseat, but Officer Cunningham testified that the center
console was within Davis’s reach. Defendant, who bore the burden of showing the
search was unjustified, did not present evidence that Davis could not reach or have access
to the center console from his position in the backseat.



                                              4
       As to the driver’s expectation of privacy, there is no evidence defendant controlled
access to the center console such that it could not reasonably be expected a passenger
would place items within the compartment. Additionally, the center console of a car is
not “an inherently private repository for personal items” rendering the search
unreasonable. (Compare Cardwell v. Lewis (1974) 417 U.S. 583, 590 [41 L.Ed.2d 325,
335] (plu. opn.) [“One has a lesser expectation of privacy in a motor vehicle because its
function is transportation and it seldom serves as one’s residence or as the repository of
personal effects”] with People v. Baker, supra, 164 Cal.App.4th at p. 1159 [“a purse has
been recognized as an inherently private repository for personal items”].) Indeed, “like
the automobile itself, property transported inside the automobile is subject to a reduced
expectation of privacy.” (People v. Schmitz, supra, 55 Cal.4th at p. 930.)
       Accordingly, we conclude the officer’s search of the center console as being
within reaching distance of a probationer who was on searchable probation was
reasonable. Since suspected narcotics was found within, the remaining search of the
vehicle and the camera bag therein were also reasonable.
       We also find the search justified by defendant’s admission to having marijuana.
Defendant’s claim that his admission was the result of a custodial interrogation without a
Miranda warning and waiver is without merit.
       In Miranda, the Supreme Court held that “the prosecution may not use statements,
whether exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination. By custodial interrogation, we mean questioning
initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.” (Miranda v.
Arizona, supra, 384 U.S. at p. 444 [16 L.Ed.2d at p. 706].)
       An “in custody” determination depends on the objective circumstances of the
interrogation, not the subjective views harbored by either the interrogating officers or the

                                             5
person being questioned. (Stansbury v. California (1994) 511 U.S. 318, 323-324 [128
L.Ed.2d 293, 298-299] [“in custody” requirement is not satisfied merely because the
police interviewed a person who was the focus of a criminal investigation].) To ascertain
whether the detainee is “in custody” for purposes of Miranda, all of the circumstances
surrounding the interrogation should be considered, including the location of the
interview; whether the suspect was informed that he or she was under arrest; the length of
the interview; the number of officers participating; whether the officers were
confrontational and/or accusatory; and whether the investigating officers used
interrogation techniques to pressure the suspect. (People v. Aguilera (1996)
51 Cal.App.4th 1151, 1162.) The trial court must “measure these circumstances against
an objective, legal standard: would a reasonable person in the suspect’s position during
the interrogation experience a restraint on his or her freedom of movement to the degree
normally associated with a formal arrest.” (Id. at p. 1161.)
       As a general matter, no Miranda warnings need be given to an individual detained
pursuant to a traffic stop, since the detainee is not “in custody.” (Berkemer v. McCarty
(1984) 468 U.S. 420, 440 [82 L.Ed.2d 317, 334-335].) “[D]etention of a motorist
pursuant to a traffic stop is presumptively temporary and brief.” (Id. at p. 437 [82
L.Ed.2d at p. 333].) Here, the officers did not stop defendant’s car, but rather approached
defendant’s parked car and engaged in conversation with defendant and his passenger,
Davis. After defendant provided identification, he was asked why he was parked there on
that night, which was Easter Sunday. Defendant replied that he had family problems; he
and Officer Cunningham conversed about where he was living and whether he was living
out of his car. After Officer Galliano determined Davis was subject to a probation search
condition, Officer Cunningham informed defendant of the probation search and asked
defendant if he had anything illegal. Defendant, who had not yet been asked to leave the
4Runner, then admitted to having marijuana and produced the jar containing the
contraband.

                                             6
       Defendant’s admission was not the product of a custodial interrogation. There is
no evidence he was subject to conditions like a formal arrest. At most, this was akin to
traffic stop that did not require a Miranda warning. Since defendant admitted having an
illegal substance, marijuana without a valid prescription, in the 4Runner, the officers had
probable cause to believe that the vehicle contained illegal drugs, which provides
justification for the search independent from Davis’s probation condition. (People v.
Waxler (2014) 224 Cal.App.4th 712, 721-722.)
       Defendant also claims that the marijuana did not justify searching the car because
its possession was no more than an infraction. The fact that possession of less than an
ounce of marijuana is now an infraction is irrelevant. A substance that is an infraction to
possess is still contraband (People v. Waxler, supra, 224 Cal.App.4th at p. 722), and an
infraction is still a crime (Pen. Code, § 16). Neither the California nor the United States
Supreme Court have limited the automobile exception to possession of a criminal amount
of contraband. Instead, the automobile exception applies any time “the police have
probable cause to believe the car contains evidence or contraband.” (Robey v. Superior
Court (2013) 56 Cal.4th 1218, 1225.) Since the driver of the vehicle admitted possessing
an illegal substance, the subsequent search was supported by probable cause and was
therefore valid under the automobile exception.
                                              II
                                       Proposition 47
       Proposition 47 requires “misdemeanors instead of felonies for nonserious,
nonviolent crimes . . . unless the defendant has prior convictions for specified violent or
serious crimes.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70.) It also
added section 1170.18 to the Penal Code, which provides that a person who is “currently
serving a sentence for a conviction . . . of a felony or felonies who would have been
guilty of a misdemeanor under the act that added this section . . . had this act been in



                                              7
effect at the time of the offense may petition for a recall of sentence before the trial court
that entered the judgment of conviction in his or her case to request resentencing . . . .”
       Defendant correctly notes possession of a controlled substance is now a
misdemeanor and he does not have a disqualifying prior conviction. (Health & Saf.
Code, § 11377, subd. (a).) He argues that pursuant to In re Estrada (1965) 63 Cal.2d
740, the provisions of Proposition 47 operate retroactively to reduce his conviction to a
misdemeanor.
       Estrada stated: “When the Legislature amends a statute so as to lessen the
punishment it has obviously expressly determined that its former penalty was too severe
and that a lighter punishment is proper as punishment for the commission of the
prohibited act. It is an inevitable inference that the Legislature must have intended that
the new statute imposing the new lighter penalty now deemed to be sufficient should
apply to every case to which it constitutionally could apply.” (In re Estrada, supra,
63 Cal.2d at p. 745.) This includes “acts committed before its passage provided the
judgment convicting the defendant of the act is not final.” (Ibid.)
       Thus, Estrada held that if an amended statute mitigates punishment, the
amendment will operate retroactively to impose the lighter punishment unless there is a
saving clause. (In re Estrada, supra, 63 Cal.2d at p. 748.) The Legislature may signal its
intent by including an express saving clause making the amendment prospective, “or its
equivalent.” (People v. Nasalga (1996) 12 Cal.4th 784, 793.) People v. Yearwood
(2013) 213 Cal.App.4th 161, held that a provision in Proposition 36, the Three Strikes
Reform Act of 2012, which created a postconviction resentencing procedure similar to
the one in Penal Code section 1170.18, was the “functional equivalent” of a saving
clause. (People v. Yearwood, at pp. 167-172.) Referencing People v. Yearwood, this
court has concluded that a defendant subject to Proposition 47 is limited to the statutory
remedy of petitioning for recall of sentence in the trial court after the judgment has
become final. (People v. Noyan (2014) 232 Cal.App.4th 657, 672.)

                                              8
       We agree with the result in People v. Noyan. The procedure set forth in Penal
Code section 1170.18 applies to “[a] person currently serving a sentence for a conviction
. . . of a felony or felonies who would have been guilty of a misdemeanor under the
act . . . .” Defendant is such a person. There is no need to ask whether Proposition 47 is
retroactive as to him. The act clearly states the manner in which any adjustment in his
sentence is to be accomplished. Defendant is limited to the statutory remedy of
petitioning the trial court for recall of sentence when the judgment is final.
                                       DISPOSITION
       The judgment is affirmed.



                                                         ROBIE                   , J.



We concur:



      NICHOLSON              , Acting P. J.



      MURRAY                 , J.




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