Filed 8/1/16 P. v. White CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F072486
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF156071A)
                   v.

KATHLEEN MICHELLE WHITE,                                                                 OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
         Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Raymond L. Brosterhous II for Plaintiff and Respondent.
                                                        -ooOoo-




         *Before     Levy, Acting P.J., Kane, J., and Smith, J.
                                     INTRODUCTION
       After denial of her motion to suppress, appellant Kathleen Michelle White entered
into a plea agreement whereby she pled guilty to one misdemeanor count of violating
Health and Safety Code section 11357, subdivision (c), possession of more than one
ounce of marijuana. In exchange for her plea, a felony charge of possession for sale was
dismissed, and White was accepted into the deferred-entry-of-judgment program set forth
in Penal Code1 section 1000. White appealed, contending the trial court erred in denying
the motion to suppress. We affirm.
                         FACTS AND PROCEDURAL HISTORY
       There was no trial, as White pled guilty to a misdemeanor pursuant to a plea
bargain.
       On June 3, 2015, White was charged with one felony count of possession of
marijuana for sale, a violation of Health and Safety Code section 11359. At the June 10,
2015 arraignment, White appeared with the public defender and pled not guilty.
       On June 11, 2015, White filed a motion to suppress pursuant to section 1538.5,
contending the warrantless search was conducted without consent and in violation of the
Fourth Amendment. The People filed an opposition to the motion, contending the entry
into White’s residence was consensual.
       A hearing on the suppression motion was held on September 15, 2015. Deputy
Sheriff Brandon Gherity testified at the suppression hearing. On the morning of
October 28, 2013, Gherity received an anonymous tip that the person living in space
No. 35 at a trailer park on State Route 178 was selling large quantities of marijuana.
Later that day, Gherity drove out to the trailer park and knocked on the door of the trailer
occupying space No. 35. Gherity stepped back off the trailer’s porch and stood on the



       1References   to code sections are to the Penal Code unless otherwise specified.


                                             2.
ground. White answered the door. She remained standing on the porch, with the front
door “slightly open.”
       Gherity asked White if she was the “homeowner of the residence,” and White
responded, “yes.” Gherity then asked White if she possessed marijuana; when White
answered affirmatively, Gherity asked if she had a medical marijuana card. White stated
she did have a medical marijuana card, and Gherity asked White if the marijuana was in
the residence at space No. 35; White indicated it was inside the residence. Gherity
indicated he “wanted to conduct a compliance check to make sure she was in compliance
with her medical marijuana card.”
       When Gherity told White he wanted to do a compliance check, White turned away
from Gherity and fully opened the front door. White stepped inside her residence, turned
toward Gherity, and allowed him to enter. White did not say anything to Gherity, but she
held the door open for him.
       After Gherity entered the residence, White shut the front door and led him through
the trailer to the “east side bedroom.” When they arrived at the bedroom, White walked
to the bedroom closet, opened the closet door, and revealed 43 mason jars containing
marijuana.
       White and Gherity walked back out to the living room and Gherity conducted an
interview. Gherity asked White how much marijuana she consumed each day; White
responded that she used “half a gram every day.” In response to a question, White
indicated she was the only marijuana user residing at the trailer.
       While at the trailer, Gherity never drew his firearm, did not draw any other
weapon, did not threaten White, did not use any force against White, and did not make
any promises to her. White was not detained, handcuffed, or arrested at this time. After
Gherity stepped inside, White never told him to get out or to leave.




                                             3.
          Gherity’s partner was with him when he went to the trailer park. When White
opened her front door, Gherity and his partner were both standing about 10 to 15 feet
away in the front yard.
          On cross-examination, Gherity confirmed that he told White he was “going to
conduct a search of the residence to confirm” she was in compliance with her medical
marijuana recommendation.
          At the conclusion of Gherity’s testimony, the defense argued the suppression
motion should be granted. The People argued the encounter started off as a consensual
encounter and that White consented to the search as demonstrated by her conduct of
opening the door, stepping aside for Gherity to enter, and then leading him to the
marijuana in the closet.
          In denying the motion to suppress, the trial court stated:

          “Based on the fact that the officer was standing in the yard, quite a distance
          away from Ms. White, the fact that he told her he wanted to conduct a
          compliance check, and the fact that she opened the door and allowed him
          into the residence, it was reasonable for him to believe that she was
          consenting to his search of the residence for the compliance check.”
          On October 5, 2015, the People and White entered into a plea agreement. The
People moved to amend the complaint to add a misdemeanor count of possession of more
than one ounce of marijuana, a violation of Health and Safety Code section 11357,
subdivision (c). The parties agreed that White would plead guilty to the misdemeanor
offense, and the felony offense would be dismissed, conditioned upon White being
eligible for the section 1000 deferred-entry program.
          White had initialed and signed forms indicating she had been advised of her
constitutional rights, was waiving those rights, and acknowledged the notice of the
deferred-entry-of-judgment program. The trial court verified that White had in fact
initialed and signed the forms, read and understood the forms, and was waiving her
rights.


                                                4.
         The parties stipulated that the preliminary hearing transcript contained a factual
basis for the plea. The trial court accepted White’s plea and found that she had “been
fully advised of the consequences of her plea and of her rights and that she’s freely,
voluntarily, and intelligently waived those rights.” The felony count was dismissed. The
trial court ordered White to report to the probation department for processing for the
deferred-entry-of-judgment program.
         On October 6, 2015, White filed a notice of appeal. The notice stated that the
appeal was based on the denial of the motion to suppress.
                                        DISCUSSION
         The only issue raised by White in this appeal is whether the trial court erred in
denying the suppression motion. White contends her purported consent was coerced.
She argues that, because her purported consent was coerced, Gherity’s illegal entry into
her home taints the evidence and requires reversal of her conviction as the evidence
should have been excluded.
         Standard of review
         Our standard of review for a motion to suppress is governed by well-established
principles. (People v. Ormonde (2006) 143 Cal.App.4th 282, 290.) “As the finder of fact
in a proceeding to suppress evidence (Pen. Code, § 1538.5), the superior court is vested
with the power to judge the credibility of the witnesses, resolve any conflicts in the
testimony, weigh the evidence and draw factual inferences in deciding whether a search
is constitutionally unreasonable.” (People v. Woods (1999) 21 Cal.4th 668, 673.) When
there is no controversy concerning the underlying facts, the only issue is whether the law,
as applied to the facts, was violated. (People v. Werner (2012) 207 Cal.App.4th 1195,
1203.)
         Our review defers to the trial court’s factual findings and independently applies
the requisite legal standard to the facts presented. (People v. Celis (2004) 33 Cal.4th 667,
679.) “We review the court’s resolution of the factual inquiry under the deferential

                                               5.
substantial-evidence standard.” (People v. Saunders (2006) 38 Cal.4th 1129, 1134.) We
then independently apply the requisite legal standard to the facts presented. (People v.
Celis, supra, at p. 679.)
       Sufficient evidence of consent
       To be valid, a consent to search must be freely and voluntarily given. The
voluntariness of a consent to search is a question of fact to be determined from the
totality of the circumstances. (People v. Boyer (2006) 38 Cal.4th 412, 445.) Trial courts
have identified many factors to be considered in determining whether consent has been
coerced, including whether weapons were drawn, whether the person giving consent was
under arrest, and whether the consenting person experienced a significant interruption of
his or her liberty. No single factor is dispositive. (People v. Avalos (1996) 47
Cal.App.4th 1569, 1578.)
       “In reviewing the sufficiency of the evidence, ‘“[t]he power of the appellate court
begins and ends with a determination as to whether there is any substantial evidence,
contradicted or uncontradicted,” to support the trial court’s findings.’ [Citations.] ‘An
appellate court must view the evidence in the light most favorable to [the prevailing
party] and presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ [Citation.] ‘Reversal is not warranted merely
because the circumstances might also be reasonably reconciled with a contrary finding.’”
(People v. Snead (1991) 1 Cal.App.4th 380, 384.)
       Here, the request to conduct a compliance check took place “in an environment
most familiar and comforting to her—her own home.” (People v. Boyer, supra, 38
Cal.4th at p. 446.) There is no indication Gherity behaved discourteously; he never drew
or displayed his gun or any other weapon; never handcuffed White; never used any force
against White; never placed her under arrest; and never made any promises to her in
order to gain her cooperation.



                                             6.
       Gherity made his request to search the premises while standing 10 to 15 feet away
from White, in her front yard, while she was in the doorway. After Gherity stated he
wanted to do a compliance check, White stepped inside her residence, turned toward
Gherity, and allowed him to enter. White did not say anything to Gherity, but she held
the door open for him. After Gherity entered the residence, White shut the front door and
led him through the trailer to the “east side bedroom.” When they arrived at the
bedroom, White walked to the bedroom closet, opened the closet door, and revealed 43
mason jars containing marijuana.
       At no time did White ask Gherity to leave, she never indicated she was refusing
entry to Gherity, and she never indicated she felt she had no choice in the matter. No
one, including White, testified at the suppression hearing to contradict Gherity’s
testimony.
       The trial court found the circumstances were not coercive and, by her actions,
White consented to the search. Gherity’s testimony is sufficient to support the trial
court’s factual finding that White consented to the search. (People v. White (2014) 230
Cal.App.4th 305, 319, fn. 14; People v. Miller (1999) 69 Cal.App.4th 190, 202.) For us
to reject this testimony, White would have to show that Gherity’s testimony should not be
credited. “The circumstances in which an appellate court may properly decline to credit
testimony are exceptional and rare.” (White, supra, at p. 319, fn. 14.) There is no reason
to discredit Gherity’s testimony.
       Conclusion
       Reviewing the trial court’s resolution of the factual inquiry under the deferential
substantial-evidence standard, we conclude substantial evidence supports the trial court’s
finding that White consented to the search. (People v. Saunders, supra, 38 Cal.4th at
p. 1134.) White having consented to the search, the trial court did not err in denying the
motion to suppress. (People v. Celis, supra, 33 Cal.4th at p. 679.)



                                             7.
                            DISPOSITION
The judgment is affirmed.




                                8.
