Filed 6/30/15
                     CERTIFIED FOR PARTIAL PUBLICATION*

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                        D065961

        Plaintiff and Respondent,

        v.                                         (Super. Ct. No. SCD252670)

VERONICA LORRAINE DEHOYOS et al.,

        Defendants and Appellants.


        APPEALS from a judgment of the Superior Court of San Diego County, Peter C.

Deddeh, Gale E. Kaneshiro, and Lisa C. Schall, Judges. Affirmed.

        Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and

Appellant Veronica Lorraine DeHoyos.

        Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and

Appellant Gary Richard DeGraff.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Sean M.

Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.


*      Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of the Background and part I of the Discussion.
                                    INTRODUCTION

       A jury convicted Gary Richard DeGraff and Veronica Lorraine DeHoyos of

possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a).) The trial

court suspended imposition of their sentences for three years and granted them formal

probation.

       They both appeal. DeGraff contends we must reverse his conviction because the

trial court erred in failing to suppress the evidence against him. DeHoyos contends

recent amendments to Health and Safety Code section 11377 require we reduce her

conviction to a misdemeanor and remand the matter for resentencing. We are

unpersuaded by these contentions and affirm the judgment.

                                    BACKGROUND1

Prosecution Evidence

       Search of DeGraff

       San Diego Police Officers Andres Ruiz and Tyler Cockrell approached DeGraff

while DeGraff was outside in front of his home cleaning his car. At the time, DeGraff's

home was known to be a location where narcotics sales occurred. DeGraff agreed to

speak with Ruiz. Ruiz asked him if he had ever been arrested and he stated he had. Ruiz

asked him whether he was on probation or parole and he stated he was on probation.

Ruiz asked whether he could search him and he responded, "Yes. I'm on probation."


1      The evidence presented at trial is not relevant to either issue raised on appeal. We
base our summary on the evidence presented at the preliminary hearing as this is the
evidence the trial court relied upon to decide DeGraff's suppression motion.

                                             2
       Officer Ruiz searched DeGraff and found a folded paper containing 1.72 grams of

methamphetamine in his back right pocket. Ruiz started handcuffing him and he asked

why he was being arrested. When Ruiz told him he was being arrested for the

methamphetamine in his pocket, he hung his head and remarked, "Oh, f--k. I didn't know

that was there. I forgot. It's not mine."

       After Officer Ruiz searched DeGraff, arrested him, and placed him in a patrol car,

Ruiz conducted a records check and learned DeGraff was not actually on probation.

However, Ruiz testified that when he searched DeGraff, he believed DeGraff was on

probation and under a search condition because DeGraff "seemed pretty adamant that he

was on probation." When cross-examined about whether police department procedure

required him to confirm the existence of a search condition in advance, Ruiz testified he

had no knowledge of such a procedure. Rather, he understood he could "search

somebody without confirming they're Fourth waiver if they tell you they're a Fourth

waiver. You take that at their faith." Officer Cockrell had the same understanding.

       Search of DeHoyos

       As Officer Ruiz was arresting DeGraff, DeGraff yelled to his girlfriend DeHoyos.

DeHoyos came outside and Officer Cockrell contacted her. He asked her whether she

had anything illegal on her and whether he could search her. She replied, "Yeah. I don't

have anything on me." He searched her and found a baggie containing .50 grams of

methamphetamine in her right front pocket. He then arrested her and placed her in the

patrol car.



                                            3
         Search of DeGraff's Home

         After Officer Cockrell arrested DeHoyos, he asked DeGraff for permission to

search his house. DeGraff verbally consented to the search. He also signed a written

consent form after he had an opportunity to read the form and Cockrell read it to him.

The consent form stated, "I, [DeGraff], having been informed of my constitutional right

not to have a search made of the premises hereinafter mentioned without a search

warrant, and of my right to refuse to consent to such a search, hereby authorized [the

officers] to conduct a complete search of my premises … . [The officers] are authorized

by me to take from my premises any letters, papers, materials, contraband or other

property which they may desire." Immediately after this sentence are the handwritten

words, "and garage!" DeGraff had Cockrell add this language to the form because

DeGraff wanted the garage thoroughly searched since a friend had stayed there for

awhile. The consent form then concluded, "This written permission is being given by me

to the above named Officers voluntarily and without coercion, threats or promises of any

kind."

         Officer Ruiz searched DeGraff's home. He found a baggie containing 19.2 grams

of methamphetamine in a bedroom being used as an office.

Defense Evidence

         DeGraff testified Officer Cockrell initially asked him where "Eric" was. DeGraff

believed Cockrell was referring to a person who had briefly lived in DeGraff's garage two

months earlier.



                                             4
       DeGraff told the officers he did not know whether he was subject to a search

condition and denied giving them permission to search him. After his arrest, he

repeatedly attempted to tell Officer Cockrell not to search his home. He was not allowed

to read the consent form before he signed it, and he only gave the officers permission to

search his garage.

       DeHoyos also testified. She said she came outside because Officer Cockrell called

for her. Once she was outside, Cockrell immediately had her place her hands behind her

back and started searching her. He did not ask for her consent. According to DeHoyos,

she found the pants she was wearing in the garage and the methamphetamine found in the

pocket was not hers.

Suppression Motion

       DeGraff moved to suppress the evidence against him under Penal Code section

1538.5, subdivision (a).2 The magistrate denied the motion, finding Officer Ruiz

reasonably relied upon DeGraff's representation he was on probation. The magistrate

also found DeGraff had voluntarily consented to the search of his house.

       DeGraff later renewed his suppression motion under section 1538.5, subdivision

(i). For the first time, he argued the search of his person was invalid because a San Diego

police department procedure required officers to verify a suspect is subject to a valid




2      Further statutory references are also to the Penal Code unless otherwise stated.

                                             5
search condition before searching him.3 The trial court denied the motion, finding

Officer Ruiz reasonably relied upon DeGraff's representation as DeGraff was in the best

position to know whether he was on probation and under a search condition. The trial

court also found DeGraff had voluntarily agreed to the search of his home.

                                        DISCUSSION

                                               I

                                      DeGraff's Appeal

       DeGraff contends we must reverse his conviction because Officer Ruiz's search of

him was unlawful and, consequently, the trial court erred in denying his suppression

motion. More particularly, he contends Officer Ruiz should have and failed to verify

DeGraff was under a search condition before conducting the search.

       "In ruling on a motion to suppress, the trial court is charged with (1) finding the

historical facts; (2) selecting the applicable rule of law; and (3) applying the latter to the

former to determine whether or not the rule of law as applied to the established facts has

been violated. [Citation.] On appeal, we review the trial court's resolution of the first

inquiry, which involves questions of fact, under the deferential substantial-evidence

standard, but subject the second and third inquiries to independent review." (People v.



3      Although DeGraff filed a copy of the procedure with his renewed suppression
motion, the trial court declined to admit the procedure into evidence. DeGraff is not
directly challenging the court's evidentiary ruling. Rather, DeGraff requested this court
take judicial notice of the content of the procedure to establish the truth of certain matters
asserted within it. We conclude the content of the procedure is not properly subject to
judicial notice and deny the request. (In re Vicks (2013) 56 Cal.4th 274, 314.)

                                               6
Parson (2008) 44 Cal.4th 332, 345.) In conducting our review, we apply federal

constitutional standards. (Cal. Const., art. I, § 24; People v. Schmitz (2012) 55 Cal.4th

909, 916.)

       "The Fourth Amendment prohibits only those searches and seizures that are

unreasonable." (People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004,

1011, citing Florida v. Jimeno (1991) 500 U.S. 248, 250, and Brigham City v. Stuart

(2006) 547 U.S. 398, 403.) Generally, "a search conducted without a warrant is per se

unreasonable under the Fourth Amendment." (Chapman, supra, at p. 1011.) However, a

probation search is a recognized exception to the warrant requirement provided as the

decision to search is not arbitrary or intended to harass. (See People v. Bravo (1987) 43

Cal.3d 600, 607, 610.)

       That DeGraff was not actually on probation and under a search condition when

Officer Ruiz searched him is not dispositive. When a defendant tells an officer he is

under a search condition, the officer may reasonably rely on the defendant's statement

and evidence found during the search will not be suppressed if it later turns out the

defendant was not under a search condition. (In re Jeremy G. (1998) 65 Cal.App.4th 553,

556 (Jeremy G.); see, e.g., People v. Tellez (1982) 128 Cal.App.3d 876, 879-880 [the

court properly denied a suppression motion where officers conducted the challenged

search based in part on a mistaken representation by defendant that defendant was on

parole at the time of the search].)

       That Officer Ruiz may have had the technological means to readily verify

DeGraff's probation status or that the police department may have had a procedure

                                             7
requiring such verification does not persuade us to disregard the holding in Jeremy G.,

supra, 65 Cal.App.4th at page 556. As the trial court pointed out, DeGraff was in the

best position to know whether he was on probation and under a search condition. We,

therefore, cannot conclude it was objectively unreasonable for Officer Ruiz to rely on

DeGraff's representation without verifying it.

                                             II

                                     DeHoyos's Appeal

                                             A

                                              1

       On November 4, 2014, while this appeal was pending, California voters approved

The Safe Neighborhoods and Schools Act (Proposition 47). (Ballot Pamp., Gen. Elec.

(Nov. 4, 2014) text of Prop. 47, § 1, p. 70.) It became effective the next day. (Cal.

Const., art. II, § 10, subd. (a).) Among its provisions, Proposition 47 amended Health

and Safety Code section 11377. (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop.

47, § 13, p. 73.) Prior to the amendment, possession of a controlled substance in

violation of Health and Safety Code section 11377, subdivision (a), was punishable as

either a felony or a misdemeanor. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.)

As a result of the amendment, the offense is now punishable as a misdemeanor "unless

the defendant 'has one or more prior convictions' for an offense specified in [section 667],

subdivision (e)(2)(C)(iv)—which lists serious and violent felonies that are sometimes

referred to as ' "super strike" offenses'—or for an offense that requires the defendant to



                                              8
register as a sex offender under section 290, subdivision (c)." (People v. Lynall, supra, at

pp. 1108-1109.)

       "Proposition 47 also created a new resentencing provision—section 1170.18.

Under section 1170.18, a person 'currently serving' a felony sentence for an offense that

is now a misdemeanor under Proposition 47, may petition to recall that sentence and

request resentencing. (§ 1170.18, subd. (a).) A person who satisfies the statutory criteria

shall have his or her sentence recalled and be 'resentenced to a misdemeanor … unless

the court, in its discretion, determines that resentencing the petitioner would pose an

unreasonable risk of danger to public safety.' (Id., subd. (b).)" (People v. Lynall, supra,

233 Cal.App.4th at p. 1109.)

                                             2

       DeHoyos contends Proposition 47 applies retroactively to her because her case

was not final when Proposition 47 became effective. Consequently, she contends she is

automatically entitled to resentencing under amended Health and Safety Code section

11377 and is not required to utilize the resentencing procedure established in section

1170.18.4




4      The California Supreme Court is currently reviewing the analogous issue: Does
the Three Strikes Reform Act of 2012 (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C)),
which reduces punishment for certain non-violent third-strike offenders, apply
retroactively to a defendant who was sentenced before the Act's effective date but whose
judgment was not final until after that date? (People v. Conley, review granted Aug. 14,
2013, S211275.)
                                             9
       The People do not dispute DeHoyos may be eligible for resentencing, but contend

her remedy is limited to the procedure established in section 1170.18. We agree with the

People.

                                              B

                                              1

       DeHoyos relies on the rule of retroactivity expressed in In re Estrada (1965) 63

Cal.2d 740 (Estrada). "Under that rule, a legislative amendment that lessens criminal

punishment is presumed to apply to all cases not yet final (the Legislature deeming its

former penalty too severe), unless there is a 'saving clause' providing for prospective

application." (People v. Smith (2015) 234 Cal.App.4th 1460, 1464-1465; People v. Hajek

and Vo (2014) 58 Cal.4th 1144, 1195-1196 [courts will assume, absent contrary evidence,

the Legislature intended for an amended statute reducing punishment for a particular

offense to apply to all defendants whose judgments are not yet final on the amended

statute's operative date]; People v. Brown (2012) 54 Cal.4th 314, 323 [same].)

       In this case, the parties do not dispute Proposition 47 lessens punishment and does

not contain an express savings clause. However, our inquiry does not end here. (People

v. Nasalga (1996) 12 Cal.4th 784, 793.) We must also consider whether there are any

other indicia of a legislative intent for Proposition 47 to apply prospectively, rather than

retroactively. (Id. at pp. 793-794.) " '[W]hat is required is that the Legislature

demonstrate its intention with sufficient clarity that a reviewing court can discern and

effectuate it.' " (Id. at p. 793.)



                                             10
                                               2

       We believe the language of Proposition 47 states the Legislature's intent for

prospective, not retroactive, application with the requisite clarity. Section 3 of the

initiative measure, which is labeled "Purpose and Intent," states: "In enacting this act, it

is the purpose and intent of the people of the State of California to: [¶] . . . [¶] (4)

Authorize consideration of resentencing for anyone who is currently serving a sentence

for any of the offenses listed herein that are now misdemeanors. [¶] (5) Require a

thorough review of criminal history and risk assessment of any individuals before

resentencing to ensure that they do not pose a risk to public safety." (Ballot Pamp., Gen.

Elec. (Nov. 4, 2014) text of Prop. 47, § 3, p. 70.) Collectively, these two paragraphs

indicate a legislative intent not to permit the automatic application of Proposition 47 to

anyone currently serving a sentence for a listed offense. Instead, they indicate a

legislative intent to authorize and allow resentencing only for those individuals whose

criminal history and risk assessment warrant it.

       Our interpretation of the legislative intent is consistent with the Legislative

Analyst's analysis of Proposition 47. In describing the initiative measure, the analysis

stated, "This measure allows offenders currently serving felony sentences for the above

crimes to apply to have their felony sentences reduced to misdemeanor sentences. …

However, no offender who has committed a specified severe crime could be resentenced

or have their conviction changed. In addition, the measure states that a court is not

required to resentence an offender currently serving a felony sentence if the court finds it



                                               11
likely that the offender will commit a specified severe crime." (Ballot Pamp., Gen. Elec.

(Nov. 4, 2014) analysis of Prop. 47 by Legislative Analyst, p. 36, italics added.)

          Our interpretation of the legislative intent is also consistent with the ballot

arguments. The opponents of the initiative measure argued the measure was "an

invitation for disaster" in part because it would "make 10,000 felons eligible for early

release." (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) rebuttal to argument in favor of Prop.

47, p. 38; see also argument against Prop. 47, p. 39.) The proponents of the initiative

countered by arguing, "Proposition 47 does not require automatic release of anyone.

There is no automatic release. It includes strict protections to protect public safety and

make sure rapists, murderers, molesters and the most dangerous criminals cannot

benefit." (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) rebuttal to argument against Prop. 47,

p. 39.)

          Given the legislative intent not to automatically apply Proposition 47 to persons

currently serving sentences for listed offenses, DeHoyos has not established Proposition

47 applies retroactively to her. Instead, to be considered for resentencing, she must

utilize the procedure specified in section 1170.18. (People v. Noyan (2014) 232

Cal.App.4th 657, 672.)




                                                 12
                                 DISPOSITION

     The judgment is affirmed.



                                               MCCONNELL, P. J.

WE CONCUR:


BENKE, J.

HALLER, J.




                                     13
