Filed 3/12/20
                           CERTIFIED FOR PUBLICATION


    OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA


THE PEOPLE,                                     D075372

        Plaintiff and Respondent,
                                                (Super. Ct. Nos. INF1402881,
        v.                                      INF1600417)

SKYLER DAMON SMITH,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of Riverside County. Jeffrey L.

Gunther, Judge. (Retired Judge of the Sacramento Sup. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part and

remanded for resentencing.



        Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles Raglan, Scott Taylor, and

Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
       In December 2014, police entered a casita belonging to Skyler Damon Smith and

saw drugs in plain view. The Riverside County District Attorney filed an information

charging Smith with possessing heroin (Health & Saf. Code, § 11350, subd. (a); count 1),

possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2),

possessing methamphetamine while armed with a loaded firearm (Health & Saf. Code,

§ 11370.1; count 3), being armed with an assault weapon (Pen. Code,1 § 30605, subd.

(a); count 4), and being a felon in possession of a firearm (Pen. Code, § 29800, subd.

(a)(1); count 5; case No. INF1402881, the first case). The trial court subsequently denied

Smith's suppression motion relating to the search of his casita.

       In September 2015, Smith was in an accident while riding his motorcycle. A

search of the motorcycle revealed drugs. In December 2016 (case No. INF1600417, the

second case), Smith was charged with possessing methamphetamine (Health & Saf.

Code, § 11378; count 1), sale or transport of methamphetamine (Health & Saf. Code,

§ 11379, subd. (a); count 2), possessing methamphetamine while armed with a loaded

firearm (Health & Saf. Code, § 11370.1; count 3), being a felon in possession of a firearm

(Pen. Code, § 29800, subd. (a)(1); count 4), and being a felon in possession of

ammunition (Pen. Code, § 30305, subd. (a); count 5).

       The trial court granted the People's motion to consolidate the cases, and the first

amended information included all 10 counts. The People further alleged that Smith

suffered two prison priors (§ 667.5, subd. (b)). During trial, the court denied a second

suppression motion concerning a search of Smith's motorcycle in the second case.

1      Undesignated statutory references are to Penal Code.


                                             2
       A jury found Smith guilty of all counts and the court found true the two prison

priors. The trial court sentenced Smith to 10 years eight months in prison. Smith

appealed, asserting the court erred in denying his suppression motions. Relying on

People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Smith also argued that the trial

court could not legally impose a $10,000 restitution fine and a $300 court facilities

assessment fee without first determining his ability to pay.

       In an opinion issued in May 2019, we affirmed the judgment. Smith petitioned

our Supreme Court for review. The Supreme Court granted review and transferred the

matter to us with directions to vacate our decision and reconsider the cause in light of

People v. Ovieda (2019) 7 Cal.5th 1034 (Ovieda).

       In the meantime, our Legislature enacted Senate Bill No. 136, (Stats. 2019,

ch. 590), which amended section 667.5, subdivision (b) to limit one-year prior prison

terms to cases where the prior was for "a sexually violent offense as defined in

subdivision (b) of Section 6600 of the Welfare and Institutions Code[.]" The amendment

became effective on January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c).)

       We received and considered supplemental briefing from the parties. Smith argues

that the warrantless entry into his casita was objectively unreasonable because an

unattended car running in a driveway did not constitute exigent circumstances or suggest

a medical emergency, claiming that the officer acted upon an unparticularized suspicion

devoid of articulable facts. We agree and conclude that the evidence seized during this

warrantless search should have been suppressed because the People did not meet their

burden to justify the search under the emergency aid or exigent circumstances exceptions,


                                             3
or the good faith exception to the exclusionary rule. Accordingly, we reverse Smith's

convictions on counts 1 through 5, but otherwise affirm the judgment.

       Smith also contends that his one-year prior prison term enhancements imposed on

two prior convictions pursuant to section 667.5, subdivision (b) must be stricken in light

of Senate Bill No. 136. The Attorney General concedes this issue. We find the Attorney

General's concession appropriate. We vacate our original opinion issued May 31, 2019,

and issue this revised opinion addressing Smith's arguments in section II and newly

added section V.

                                        DISCUSSION

                          I. GENERAL LEGAL PRINCIPLES

       The Fourth Amendment to the United States Constitution prohibits the

government from conducting unreasonable searches and seizures of private property.

(U.S. Const., 4th amend.; Arizona v. Gant (2009) 556 U.S. 332, 338; People v. Macabeo

(2016) 1 Cal.5th 1206, 1213.) Warrantless searches "are per se unreasonable under the

Fourth Amendment—subject only to a few specifically established and well-delineated

exceptions." (Katz v. United States (1967) 389 U.S. 347, 357, fns. omitted.) As relevant

here, well-delineated exceptions to the warrant requirement include exigent

circumstances, inventory searches, and plain-view searches. (68 Am.Jur.2d (2010)

Searches and Seizures § 114, p. 237.)

       A defendant may move to suppress evidence on the ground that "[t]he search or

seizure without a warrant was unreasonable." (§ 1538.5, subd. (a)(1)(A).) When a

defendant files a motion to suppress, the People have "the burden of proving that the


                                             4
warrantless search or seizure was reasonable" (People v. Williams (1999) 20 Cal.4th 119,

130), and alternatively, " 'the burden . . . to prove that exclusion of the evidence is not

necessary because of [the good faith] exception.' " (People v. Willis (2002) 28 Cal.4th

22, 36.) The prosecution must establish by a preponderance of the evidence the facts

justifying a warrantless search. (People v. Johnson (2006) 38 Cal.4th 717, 729.) In

reviewing a court's ruling on a suppression motion, "[w]e defer to the trial court's factual

findings, express or implied, where supported by substantial evidence. In determining

whether, on the facts so found, the search or seizure was reasonable under the Fourth

Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11

Cal.4th 354, 362.)

                            II. FIRST CASE: CASITA SEARCH

       A. Background Facts2

       An officer with the Palm Springs Police Department and his partner were

dispatched to a home following a call from a concerned citizen. The citizen reported that

an unoccupied running car had been in the driveway of a residence for about 30 minutes.

The officer met the citizen by the car and noted that the unoccupied car was running, the

windows were up and foggy, the lights were on, and determined that a car rental

company owned the vehicle. The officer became concerned that a person inside the

home might be in distress or that criminal activity was afoot. The officer testified that his

duties include welfare checks and that he had experienced a prior incident with similar


2     The facts are based on the testimony given in connection with the suppression
motion.


                                               5
circumstances where a person had been suffering from a diabetic coma. The officer

heard no noise inside the house. The officer rang the doorbell several times and could

hear the doorbell ringing inside the home. The officer or his partner also knocked on the

door. The officers waited about 30 to 60 seconds for someone to answer the door, but

received no response. The lack of any response concerned the officer.

       The officers left the front door and walked the exterior of the residence to

determine if an occupant was injured or crime was afoot. About 10 feet away from the

front door and under the same roofline the officer found a second door that appeared to

be "an interior-type door" which led the officer to believe that the door was "part of and

open to the main residence." The officer did not knock on the door, but moved the

handle. The officer did not knock because he had no reason to believe doing so would

alert anyone inside the residence. The officer did not know the interior layout of the

house and did not know that the door led to a casita that lacked access to the front door.

       Finding the door unlocked, the officer opened the door and announced "police."

As the door opened, the officer saw an individual, who he knew to be a felon and not a

resident of this home, lying on the floor looking back at him. This caused the officer to

believe that crime was afoot.

       After a "factually intense" analysis, the trial court denied the suppression motion.

The court found the officer's testimony to be "very sincere, very honest" regarding the

description of the scene and the officer's concerns. The court found that the officers

waited a substantial period of time for a response after they rang the doorbell and

knocked. The court concluded that the officer's failure to knock on the second door


                                             6
before entering was not unreasonable given "this was a one-roof situation. It wasn't the

separate casita, which we see in this community on many occasion[s]. This was a

contiguous part of the entirety of one structure . . . ."

       During trial, the officer testified that after stepping into the room he saw Smith,

another individual who he knew had a felony conviction, drug paraphernalia and what

appeared to be methamphetamine in plain view. He later learned that Smith and the other

individual were on probation and subject to search conditions.

       B. Legal Principles

       At " 'the very core [of the Fourth Amendment] stands the right of a man to retreat

into his own home and there be free from unreasonable governmental intrusion.' "

(Payton v. New York (1980) 445 U.S. 573, 589-590.) Accordingly, "the Fourth

Amendment has drawn a firm line at the entrance to the house." (Id. at p. 590.) Thus,

"[w]ith few exceptions, the question whether a warrantless search of a home is reasonable

and hence constitutional must be answered no." (Kyllo v. United States (2001) 533 U.S.

27, 31.)

       Pursuant to the emergency aid exception, "police may enter a home without a

warrant when they have an objectively reasonable basis for believing that an occupant is

seriously injured or imminently threatened with such injury." (Brigham City v. Stuart

(2006) 547 U.S. 398, 400; People v. Troyer (2011) 51 Cal.4th 599, 606.) Additionally,

"the exigent circumstances exception applies to situations requiring prompt police action.

These situations may arise when officers are responding to or investigating criminal

activity." (Ovieda, supra, 7 Cal.5th at p. 1042.)


                                                7
       Additionally, in People v. Ray (1999) 21 Cal.4th 464 (Ray), a plurality of our high

court held that the community-caretaker exception, which permits police to enter if the

search is unrelated to the criminal investigation duties of the police, justified the

warrantless entry into a home for a security check. (Id. at p. 471 (lead opn. of Brown,

J.).) In Ray, someone had called police and reported that a neighbor's front door " 'has

been open all day and it's all a shambles inside.' " (Id. at p. 468 (lead opn. of Brown, J.).)

Officers responded, saw the open door, and confirmed that " 'the front room appeared to

be ransacked as if someone went through it.' " (Ibid.) Officers knocked and announced

their presence but received no reply. They then entered "to conduct a security check 'to

see if anyone inside might be injured, disabled, or unable to obtain help.' " (Ibid.) The

officers found no occupants, but saw drugs and cash in plain view. They left and

obtained a search warrant. (Id. at pp. 468-469 (lead opn. of Brown, J.).)

       A plurality of the Supreme Court concluded that while the facts known to the

officers did not establish "exigent circumstances or the apparent need to render

emergency aid, they warranted further inquiry to resolve the possibility [that] someone

inside required assistance or property needed protection." (Ray, supra, 21 Cal.4th at

p. 478 (lead opn. of Brown, J.).) The lead opinion then pronounced that "[u]nder the

community caretaking exception, circumstances short of a perceived emergency may

justify a warrantless entry, including the protection of property, as 'where the police

reasonably believe that the premises have recently been or are being burglarized.' "

(Id. at p. 473 (lead opn. of Brown, J.).) Under this exception, the question is: "Given the

known facts, would a prudent and reasonable officer have perceived a need to act in the


                                               8
proper discharge of his or her community caretaking functions?" (Id. at p. 477 (lead opn.

of Brown, J.).)3

       In Ovieda, supra, 7 Cal.5th 1034, the California Supreme Court disapproved the

lead opinion in Ray, supra, 21 Cal.4th 464, holding that "the community caretaking

exception asserted in the absence of exigency is not one of the carefully delineated

exceptions to the residential warrant requirement recognized by the United States

Supreme Court." (Ovieda, at p. 1053.)

       C. Analysis

       The question before us is whether exigent circumstances justified the warrantless

search. Exigent circumstances are defined as " ' " 'an emergency situation requiring swift

action to prevent imminent danger to life or serious damage to property, or to forestall the

imminent escape of a suspect or destruction of evidence.' " ' " (Ovieda, supra, 7 Cal.5th

at p. 1041.) Exigent circumstances include situations where "an entry or search appears

reasonably necessary to render emergency aid, whether or not a crime might be

involved." (Id. at pp. 1041-1042.) We separately analyze whether the emergency aid or

the exigent circumstances exceptions apply. Finding they do not apply, we address the



3       In Ray, a separate three-justice concurrence rejected the lead opinion's community
caretaking rationale, but agreed in the result that the entry was proper finding "[e]xigent
circumstances existed, because the officers had reasonable cause to believe a burglary
was in progress, or that a burglary had been committed and there might be persons inside
the residence in need of assistance." (Ray, supra, 21 Cal.4th at p. 482 (conc. opn. of
George, C. J.).) The dissent concluded that "[t]he circumstances did not warrant a
reasonable belief that entry was necessary to preserve life or property. To the extent that
the officers believed they were called upon to perform a community caretaking function,
it would have sufficed to shut the door." (Id. at p. 487 (dis. opn. of Mosk, J.).)


                                             9
People's contention that the good faith exception to the exclusionary rule should apply to

validate the search.

       1. Emergency Aid Exception

       The well-recognized emergency aid exception "require[s] that articulable facts

support a reasonable belief that an emergency exists." (Ovieda, supra, 7 Cal.5th at

p. 1048.) It is not enough that officers seek to rule out "the possibility that someone . . .

might require aid." (Id. at p. 1047.) "Officers do not need ironclad proof of 'a likely

serious, life-threatening' injury to invoke the emergency aid exception." (Michigan v.

Fisher (2009) 558 U.S. 45, 49 (Fisher).) "[T]he test . . . [is] whether there was 'an

objectively reasonable basis for believing' that medical assistance was needed, or persons

were in danger . . . ." (Ibid.)

       People v. Smith (1972) 7 Cal.3d 282 (Smith) is instructive. In Smith, an apartment

house owner found the six-year-old daughter of one of her tenants crying on the steps to

the girl's apartment. (Id. at p. 284.) The girl stated that she was alone in her apartment

and lonesome. (Ibid.) The owner took the girl in and contacted the police after waiting

one hour. (Ibid.) The responding officer went to the girl's apartment looking for her

mother. (Ibid.) After receiving no response to his knocks, the officer had the owner of

the apartment house open the door. (Ibid.) He entered and found drugs inside. (Ibid.)

       The California Supreme Court found the entrance to be illegal. "[R]ather than

drawing the obvious conclusion that no one was at home [citation], [the officer]

proceeded to speculate that [the mother] might nevertheless be inside but be unable to

answer because she was somehow indisposed and, by that token, in need of 'help.'


                                              10
This . . . attempt to create an emergency where none existed is . . . implausible. . . . There

was not a scintilla of evidence to support the assumption that [the mother] had not only

returned unnoticed to her flat but had thereupon suddenly fainted, fallen sick, or

otherwise become incapacitated to the point of rendering her unable to care for her

daughter and in need of police assistance. Such a belief is no less irrational than that

entertained by the officer in Horack [v. Superior Court of Orange County (1970) 3 Cal.3d

720, 725 (Horack)] who received no response when he knocked on the door of an

apparently empty house, and 'because there was no response, he believed the persons

were intentionally failing to open the door; because they were consciously refusing to

open the door, he believed they had something to hide, namely, that they were occupying

the house without authority.' [Citation.] In both cases the belief upon which the officer

acted was the product not of facts known to or observed by him, but of his fanciful

attempt to rationalize silence into a justification for his warrantless entry." (Smith, supra,

7 Cal.3d at p. 287.)

       Similarly here, absolutely no evidence supported a conclusion that anything was

amiss inside the residence. The officers observed an unoccupied running vehicle in a

residential driveway at night and what appeared to be an unoccupied dark residence with

the porch light on and front door locked. No one responded to the doorbell or knocks at

the door and the officer could not see or hear anything inside the house. On these facts,

the officer expressed concern that someone inside the residence might be having a

medical emergency.




                                             11
       However, as required by Ovieda, supra, 7 Cal.5th 1034, the officer pointed to no

facts that reasonably supported his concern that someone inside the residence might be

suffering from a medical emergency such as moaning or groaning from inside the home,

blood or vomit near the vehicle or residence, or disarray inside the vehicle or near the

home. Rather, the facts known to the officer were insufficient to provide him with " 'an

objectively reasonable basis for believing' that medical assistance was needed, or persons

were in danger" such that a warrantless search of the residence was justified by the

emergency aid exception. (Fisher, supra, 558 U.S. at p. 49; compare, People v. Roberts

(1956) 47 Cal.2d 374, 376 [warrantless entry proper where officers had information that a

person living inside apartment "was sickly" and heard "several moans or groans" after

knocking on door]; People v. Hill (1974) 12 Cal.3d 731, 755 [warrantless entry proper

when officers, aware of a recent shooting, found one victim and then found fresh

bloodstains on the fence and porch of a residence, received no response to their knocks

and observed what appeared to be bloodstains on the floor inside the residence],

overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5;

People v. Ammons (1980) 103 Cal.App.3d 20, 30-31 [Officer had rational basis for

warrantless entry where "[b]oth cars were home; defendant was usually home on Monday

morning; the dog was left unattended long enough to defecate on the floor. Usually a

neighbor cared for the dog when the Ammons were away. Contrary to their custom, the

Ammons had not told this neighbor that they would be away from home. The victim,

normally a punctual employee, was several hours late for work and had not called; his

employer expressed concern for his welfare. Defendant had a heart condition for which


                                             12
she was under a doctor's care and was taking medication. The Ammons neighbors had

not seen them for two days. Their daughter was on vacation and could not be reached."];

People v. Amaya (1979) 93 Cal.App.3d 424, 427 [after report of shooting and finding one

dead victim, warrantless search of apartment which had a fresh trail of blood leading to it

upheld].)

       Unlike the above cases, the officer here articulated no facts reasonably suggesting

that someone inside the residence might be having a medical emergency. Accordingly,

we conclude that the emergency aid exception did not justify the warrantless entry into

Smith's casita.

       2. Exigent Circumstances Exception

       "A burglary in progress may constitute an 'exigent circumstance,' as that phrase is

used in Fourth Amendment jurisprudence." (People v. Lujano (2014) 229 Cal.App.4th

175, 183.) On this point, People v. Duncan (1986) 42 Cal.3d 91 (Duncan) and Horack,

supra, 3 Cal.3d 720 are instructive.

       In Duncan, supra, 42 Cal.3d 91, a police officer responded to a "call that a

burglary was in progress or had just occurred[,]" at a residence and spoke to a neighbor,

who apparently told the officer he saw two teenagers fleeing with a television set. (Id. at

p. 95.) The police officer noticed an open back window with a television set and other

items beneath it. (Id. at pp. 95-96.) "Surmising that one or more of the burglars was still

inside," the officer climbed in the window "to search for intruders" and saw a drug

laboratory. (Id. at p. 96.) The trial court denied the defendants' motion to suppress and

the California Supreme Court affirmed, concluding the police officer's "warrantless entry


                                            13
into defendants' residence was justified by the exigent circumstance of a burglary in

progress." (Id. at p. 98.) The Duncan court concluded substantial evidence supported the

trial court's finding that the police officer reasonably believed at least one burglar was

inside the house and observed it "would have been poor police work indeed for an officer

to fail to investigate under circumstances suggesting a crime in progress." (Id. at pp. 98-

99.)

       In Horack, supra, 3 Cal.3d 720, an officer received a call that two " 'hippie-type' "

individuals had entered what the caller believed was a vacant house with sleeping bags.

(Id. at p. 723.) The officer went to the house around 1:00 p.m., knocked and announced

" 'Police Officer.' " (Ibid.) He could see there were no furnishings in the house except a

stereo which was playing loudly. (Ibid.) No one responded to his knocks, and he heard

no other sounds from within. (Ibid.) The front door was locked. The back door was

unlocked, and the officer entered to " 'ascertain if there were people in the dwelling that

did not have the authority to be inside.' " (Ibid.) Our high court found the search to be

unreasonable. "The only property to be protected was the bare carpeted house containing

a stereo system, and the police officers saw nothing to indicate any immediate threat of

damage or destruction. Indeed, [the officer] candidly admitted that he saw nothing to

indicate that a burglary was in progress or had been committed. And even the most vivid

imagination would be unable to contrive imminent danger to human life in the situation

apparent to [the officers] prior to their entry." (Id. at p. 726.)

       The instant case is more similar to Horack than Duncan. The neighbor who

reported the running car in the driveway did not see anyone fleeing the residence, or state


                                               14
that the neighborhood had a burglary problem. The lit porch light, locked front door, and

dark interior suggested that the home was occupied, but that the occupants were not

home. Moreover, an overview of the residence's exterior did not reveal any open doors

or windows, flashlight beams in the home, or anything amiss. Here, while the

unoccupied running car warranted investigation, it did not reasonably suggest a burglary

in progress and justify a warrantless search. Common sense suggests that burglars would

not announce their presence by leaving an unoccupied running getaway vehicle in the

driveway of the residence being burglarized.

       Our search of state and federal case law revealed the existence of no cases where

an unoccupied running vehicle prompted the search of a residence. However, we find

People v. Hernandez (1994) 30 Cal.App.4th 919 (Hernandez) somewhat analogous. In

Hernandez, an undercover officer purchased narcotics from a suspected drug dealer

during an undercover narcotics investigation. (Id. at p. 921.) Officers later observed the

two vehicles driven by the suspected drug dealer at the time of the controlled buys parked

behind a residence. (Ibid.) Undercover officers knocked on the door of the residence and

spoke to the occupants, but were unable to ascertain whether the suspect lived there. (Id.

at p. 922.) The officers obtained a search warrant for the residence based on the presence

of the vehicles behind the residence; no information was provided that the suspected drug

dealer ever entered the residence. (Id. at pp. 923-924.)

       The Court of Appeal concluded that probable cause to issue the search warrant did

not exist because the presence of the vehicles "raised suspicions, but failed to establish a

nexus between the criminal activities and the residence." (Hernandez, supra, 30


                                             15
Cal.App.4th at p. 924.) The Hernandez court observed there was no link between the

vehicles and the residence, noting the absence of information that the suspect owned the

vehicles, lived at the residence, or was ever seen carrying packages between the vehicles

and the residence. (Ibid.) Thus, "there was no substantial basis for concluding that

probable cause existed for the residential search." (Ibid.; accord, People v. Garcia (2003)

111 Cal.App.4th 715, 722 [insufficient nexus between drug dealer who sold drugs in a

bar and the possible presence of drugs in the bar to support issuance of search warrant

where the drug dealer was a patron, not an owner or employee of the bar and there was

no evidence the drug dealer stored drugs at the bar].)

       Applying the reasoning in Hernandez, while the unoccupied running car warranted

investigation, no articulable facts existed to create a nexus between any suspected

criminal activities and the residence. Accordingly, we conclude that the exigent

circumstances exception did not justify the warrantless entry.

       3. Good Faith Exception

       "Under the 'fruit of the poisonous tree' doctrine, both direct and indirect products

of an unreasonable search are subject to exclusion." (People v. Werner (2012) 207

Cal.App.4th 1195, 1213.) Nonetheless, "[t]he United States Supreme Court has

'repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth

Amendment violation.' [Citations.] 'Indeed, exclusion "has always been our last resort,

not our first impulse . . . ." ' [Citation.] [¶] 'Whether the exclusionary sanction is

appropriately imposed in a particular case . . . is "an issue separate from the question

whether the Fourth Amendment rights of the party seeking to invoke the rule were


                                              16
violated by police conduct." ' " (Barajas v. Appellate Division of Superior Court (2019)

40 Cal.App.5th 944, 952-953.)

        Anticipating the possibility that we might find the warrantless entry unjustified,

the People tacitly concede that the search of the casita violated the Fourth Amendment

and contend we should affirm the denial of the suppression motion based on the good

faith reliance doctrine, citing Hudson v. Michigan (2006) 547 U.S. 586, 591 (Hudson),

Herring v. United States (2009) 555 U.S. 135, 140 (Herring), and Davis v. United States

(2011) 564 U.S. 229, 237 (Davis).

        In Hudson, supra, 547 U.S. 586, police obtained a valid warrant to search

defendant's home. (Id. at p. 588.) Instead of waiting the appropriate amount of time after

knocking and announcing, police entered the home and recovered narcotics and a firearm.

(Ibid.) Defendant claimed that the evidence should be suppressed based on a clear

violation of the Fourth Amendment. (Ibid.) A Supreme Court majority disagreed

reasoning that police obtained the evidence pursuant to a valid search warrant and courts

could sever the method of the search (which might have been a constitutional violation),

from the justification for the search (which was constitutionally valid). (Id. at pp. 592-

593.)

        In Herring, supra, 555 U.S. 135, police arrested defendant when a computer

search revealed that defendant had an active warrant. (Id. at p. 137.) During a search

incident to defendant's arrest, police recovered narcotics and a gun. (Id. at p. 138.) After

the search, the officer learned that the warrant had been recalled. (Ibid.) Balancing the

costs and benefits of exclusion (id. at p. 141), the court concluded that the deterrent value


                                             17
of the exclusionary rule turns on the "flagrancy" of police misconduct. (Id. at p. 143.)

"To trigger the exclusionary rule, police conduct must be sufficiently deliberate that

exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is

worth the price paid by the justice system." (Id. at p. 144.) Our high court declined to

exclude the evidence stating "that when police mistakes are the result of negligence such

as that described here, rather than systemic error or reckless disregard of constitutional

requirements, any marginal deterrence does not 'pay its way.' " (Id. at pp. 147-148.)

       In Davis, supra, 564 U.S. 229, an officer searched a car and recovered contraband

in accordance with a controlling United States Supreme Court case that created a "bright-

line rule authorizing the search of a vehicle's passenger compartment incident to a recent

occupant's arrest," which was later held unconstitutional by the United States Supreme

Court. (Id. at pp. 239, 233-235.) The Supreme Court concluded that the exclusionary

rule should not apply, reasoning that the police officer's actions, although later declared

unconstitutional, were at the time perfectly legal and quite reasonable. (Id. at p. 249.)

Thus, there was no deterrent value in suppressing evidence recovered from a then-lawful

search. (Ibid.) As another court explained, the Davis rule avoids penalizing law

enforcement officers for errors of appellate judges. (People v. Youn (2014) 229

Cal.App.4th 571, 579.) Rather, where police officers are complying in good faith with

the law as it existed at the time, there is no reason to apply the exclusionary rule. (Ibid.)

       The People argue that the officer who entered the casita was not culpable because

he relied in good faith on the community caretaking exception articulated in Ray, supra,

21 Cal.4th 464. This argument is misplaced because "[t]he pertinent analysis of


                                              18
deterrence and culpability is objective, not an 'inquiry into the subjective awareness of

arresting officers.' " (Herring, supra, 555 U.S. at p. 145.) The sole question is whether

the search was objectively reasonable under binding legal precedent at the time of the

search. Unlike the binding United States Supreme Court precedent at issue in Davis,

supra, 564 U.S. 229, Ray was a plurality decision and is not binding precedent. (Texas v.

Brown (1983) 460 U.S. 730, 737 [plurality opinion not binding precedent]; People v.

Karis (1988) 46 Cal.3d 612, 632 [opinion "is not binding precedent since a majority of

the court did not join in the plurality opinion"].)

       Accordingly, we cannot conclude that the officer's actions were constitutional

under existing legal authority at the time of the search. Applying the good faith

exception here would allow police officers to undertake warrantless searches of

residences based on nonbinding legal precedent. Additionally, not applying the good

faith exception to this circumstance would act to deter similar searches based on

nonbinding legal precedent and devoid of articulable facts justifying the search. Thus,

we conclude that the good-faith exception to the exclusionary rule does not apply, and

suppression of the evidence obtained during the warrantless search of Smith's casita is

required.4



4       People v. Harris (2015) 234 Cal.App.4th 671 (Harris), relied on by the People for
application of the good faith exception is inapposite. The Harris court noted that for over
40 years, California courts had interpreted a United States Supreme Court opinion to
permit forced, warrantless blood draws of motorists arrested on suspicion of DUI without
any additional showing of exigent circumstances. (Id. at pp. 702-704.) After the search
at issue, another United States Supreme Court opinion repudiated this long-standing
interpretation. (Id. at p. 703.) Under these circumstances, the Harris court concluded


                                              19
                         III. SECOND CASE: MOTORCYCLE SEARCH

       A. Background Facts

       During trial, Smith moved to suppress any evidence seized after police searched

his motorcycle. Outside the jury's presence, the trial court heard testimony from an

officer with the traffic division of the Palm Springs Police Department (the traffic

investigator) who responded to a traffic collision involving a motorcycle. The

motorcycle was blocking the roadway and needed to be towed away. Smith, the

motorcycle driver, had already been transported to the hospital when the traffic

investigator arrived at the scene.

       The traffic investigator needed to impound the motorcycle as part of the traffic

collision investigation. The impound process included completing a California Highway

Patrol 180 form documenting the towing and inventory search of the vehicle. An

inventory search is normal procedure for a towed vehicle. The inventory search included

determining the existence of valuable property, contraband, weapons, or any other items

that could be dangerous to individuals with access to a tow yard where the vehicle may

be left unsecured. The traffic investigator stated that the motorcycle would be taken to a

police storage yard.

       Before conducting the inventory search, the traffic investigator learned that

hospital personnel had found a firearm on Smith. The traffic investigator performed a

visual check of the motorcycle and noticed a single storage compartment underneath the


that the good faith exception applied to the warrantless blood draw at issue. (Id. at
pp. 702-703.)


                                            20
seat. The storage compartment was large enough to house a handgun or ammunition.

The officer unlocked the compartment using the ignition key. The compartment

contained a black zippered bag. The black bag contained a wallet, sunglasses, and a

white plastic baggie with a substance the officer believed to be methamphetamine.

       The trial court found that the contents of the motorcycle needed to be inventoried

to determine whether the motorcycle contained anything valuable. It rejected the defense

argument that the traffic investigator was looking for contraband and not performing a

required inventory search. Based on these findings, the court denied the suppression

motion, concluding that the traffic investigator had conducted a lawful inventory search.

       B. Legal Principles

       Vehicle inventory searches are "a well-defined exception to the warrant

requirement of the Fourth Amendment." (Colorado v. Bertine (1987) 479 U.S. 367, 371

(Colorado).) An inventory search may extend to the car's trunk, glove compartment, and

closed containers located within the car. (Id. at p. 375.) "A police officer may be

allowed sufficient latitude to determine whether a particular container should or should

not be opened in light of the nature of the search and characteristics of the container

itself." (Florida v. Wells (1990) 495 U.S. 1, 4 (Florida).)

       Inventory searches are typically performed by police when vehicles are

impounded "[i]n the interests of public safety and as part of . . . 'community caretaking

functions.' " (South Dakota v. Opperman (1976) 428 U.S. 364, 368 (Opperman).)

"When vehicles are impounded, local police departments generally follow a routine

practice of securing and inventorying the automobiles' contents. These procedures


                                             21
developed in response to three distinct needs: the protection of the owner's property

while it remains in police custody, [citation]; the protection of the police against claims

or disputes over lost or stolen property, [citation]; and the protection of the police from

potential danger." (Id. at p. 369.) "Whether 'impoundment is warranted under this

community caretaking doctrine depends on the location of the vehicle and the police

officers' duty to prevent it from creating a hazard to other drivers or being a target for

vandalism or theft.' " (People v. Williams (2006) 145 Cal.App.4th 756, 761 (Williams).)

       To protect Fourth Amendment interests, inventory searches, and in particular the

opening of closed containers, must occur pursuant to "standardized criteria" or an

"established routine." (Florida, supra, 495 U.S. at p. 4; Williams, supra, 145

Cal.App.4th at p. 761.) The requirement of guidelines for police discretion insures that

inventory searches are not used as "a ruse for a general rummaging in order to discover

incriminating evidence." (Florida, at p. 4; Williams, at p. 761.)




                                              22
       C. Analysis

       Smith concedes that the police properly impounded his motorcycle as part of their

community caretaking function. He contends that opening the locked compartment under

the passenger seat of his motorcycle was unnecessary and a pretext for an investigation of

criminal activity because the traffic investigator stated that the motorcycle would be

taken to a police storage yard. Accordingly, he claims the trial court erred when it denied

the motion and failed to exclude the methamphetamine recovered during the search. We

disagree.

       Police inventory the contents of an impounded vehicle to document and secure

valuable items and thus protect the police against claims or disputes regarding lost or

stolen property. (Opperman, supra, 428 U.S. at p. 369.) Here, the traffic investigator

testified that an inventory search to record the existence of valuable items is normal

procedure for a towed vehicle and that such searches are documented by filling out a

standard form. The traffic investigator testified that his search was consistent with police

procedures, including a visual inspection and unlocking a storage compartment. These

facts amply support the trial court's findings that the traffic investigator performed a

required inventory search, that the search was not a pretext to look for contraband, and

not performing the search would have resulted in uncertainty whether the motorcycle

contained anything valuable.

       The traffic investigator's use of the ignition key to unlock the storage compartment

makes the opening of this compartment akin to opening a car trunk, which is permissible.

(Colorado, supra, 479 U.S. at p. 375 [inventory search may extend to a car trunk and


                                             23
closed containers located within the car].) The fact the motorcycle would be towed to a

police storage yard rather than a tow yard (a presumably less secure location), is a

distinction without a difference. Police may potentially be liable for lost or stolen items,

particularly valuables such as Smith's wallet, regardless of where the vehicle is stored.

Accordingly, the trial court reasonably concluded that the traffic investigator had

performed a lawful inventory search aimed at securing the motorcycle and its contents.

                                   IV. ABILITY TO PAY

       Smith contends that the trial court erred by imposing a $300 court facilities

assessment (Gov. Code, § 70373), a $10,000 restitution fine (Pen. Code, § 1202.4, subd.

(b)), and a stayed $10,000 parole revocation fine (Pen. Code, § 1202.45) without

determining his ability to pay. He contends that the issue is not forfeited because the trial

court made a legal error at sentencing, not a discretionary error, and it would have been

futile to object.

       The minimum restitution fine for felony convictions is $300, and the maximum

fine is $10,000. (§ 1202.4, subd. (b)(1).) A trial court may consider inability to pay

when "increasing the amount of the restitution fine in excess of the minimum fine . . . ."

(§ 1202.4, subd. (c).) It is well established that a defendant forfeits a challenge to the

trial court's imposition of a restitution fine above the statutory minimum for failing to

consider his or her ability to pay if the defendant did not object in the trial court. (People

v. Nelson (2011) 51 Cal.4th 198, 227 [alleged erroneous failure to consider ability to pay

a $10,000 restitution fine forfeited by the failure to object]; People v. Avila (2009) 46




                                              24
Cal.4th 680, 729 [forfeiture rule applies to claim that restitution fine amounted to an

unauthorized sentence based on inability to pay].)

       Here, unlike the defendant in Dueñas, supra, 30 Cal.App.5th 1157, who created an

extensive record showing her inability to pay $220 in assessments and fines, Smith did

not object in the trial court on the grounds that he was unable to pay, even though the trial

court ordered him to pay the $10,000 statutory maximum restitution fine. (Id. at

pp. 1161-1163; People v. Castellano (2019) 33 Cal.App.5th 485, 490 ["Consistent with

Dueñas, a defendant must in the first instance contest in the trial court his or her ability to

pay . . . ."].) Accordingly, we conclude that Smith forfeited his challenges to the

assessment and fines. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033

[imposition of restitution fine above statutory minimum permitted consideration of ability

to pay and defendant's failure to object also forfeited ability-to-pay arguments as to other

imposed fines and fees].)

       Finally, we reject Smith's contention that an objection would have been futile

because the holding in Dueñas "represent[ed] a dramatic and unforseen [sic] change in

the law governing assessments and restitution fines." Even assuming the validity of this

argument, trial courts are statutorily authorized to consider a defendant's "inability to

pay" any restitution fine above the statutory minimum. (§ 1202.4, subd. (d).) Because

the $10,000 restitution fine imposed is greater than the statutory minimum, it would not

have been futile for Smith to request an ability to pay determination. Thus, Smith's

failure to object to a $10,000 restitution fine is inexcusable, as is his failure to object to

the much smaller $300 assessment. (See People v. Frandsen (2019) 33 Cal.App.5th


                                               25
1126, 1154 ["Given his failure to object to a $10,000 restitution fine based on inability to

pay, Frandsen has not shown a basis to vacate assessments totaling $120 for inability to

pay."].)

                                 V. SENATE BILL NO. 136

          The first amended information alleged that Smith served two prison terms after

suffering convictions for assault likely to cause great bodily injury (§ 245, subd. (a)(1))

and possessing a firearm (§ 12021.1, subd. (a)). The trial court found these two prison

priors true. Smith's sentence included consecutive one-year terms for each of the prison

priors.

          Senate Bill No. 136 amended Penal Code section 667.5, subdivision (b) regarding

prior prison term enhancements. Former Penal Code section 667.5, subdivision (b)

imposed an additional one-year term for each prior separate prison term or county jail

felony term, except under specified circumstances. However, amended Penal Code

section 667.5, subdivision (b) imposes that additional one-year term only for each prior

separate prison term served for a conviction of a sexually violent offense as defined in

Welfare and Institutions Code section 6600, subdivision (b). (Pen. Code, § 667.5, subd.

(b).) "By eliminating [Penal Code] section 667.5, subdivision (b) enhancements for all

prior prison terms except those for sexually violent offenses, the Legislature clearly

expressed its intent in Senate Bill No. 136 . . . to reduce or mitigate the punishment for

prior prison terms for offenses other than sexually violent offenses." (People v. Jennings

(2019) 42 Cal.App.5th 664, 682.)




                                              26
       Because Smith served neither of his prior prison terms for a sexually violent

offense, his section 667.5, subdivision (b) enhancements are now unauthorized under the

amended statute. The parties agree that Senate Bill No. 136 applies to Smith because the

statute is retroactive and applies to all cases not yet final as of its effective date. (In re

Estrada (1965) 63 Cal.2d 740, 742; People v. Keene (2019) 43 Cal.App.5th 861, 865.)

Accordingly, the now-inapplicable enhancements under section 667.5, subdivision (b)

currently attached to Smith's sentence are stricken. (§ 1260 [granting appellate court

power to reduce punishment imposed].)

                                        DISPOSITION

       Smith's convictions on counts 1 through 5 are reversed. The matter is remanded

with directions that the trial court (1) strike the enhancements under section 667.5,

subdivision (b), and (2) resentence Smith. Following resentencing, the trial court is

directed to prepare an amended abstract of judgment and forward a certified copy of the

amended abstract to the Department of Corrections and Rehabilitation. In all other

respects the judgment is affirmed.


                                                                              BENKE, Acting P. J.
WE CONCUR:




HALLER, J.




DATO, J.


                                               27
