(Solano County Super. Ct. No. FCR259410), Trial Judge: Hon. Michael Mattice.
The opinion of the court was delivered by: Jenkins, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant Jeffrey Daniel Norton entered a plea of no contest and was convicted of a felony offense of domestic violence. He appeals from the judgment of conviction, contending the evidence against him was the product of a warrantless search that violated his Fourth Amendment rights. We affirm the judgment, as we conclude that the evidence was lawfully obtained under the emergency aid exception to the warrant requirement. In addition, we hold that Norton is entitled to additional presentence conduct credit under the 2009 amendments to Penal Code section 4019,*fn2 as we conclude these amendments should be given retroactive effect.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2008, the district attorney filed a criminal complaint against Norton alleging corporal injury to a cohabitant (§ 273.5, subd. (a)) and criminal threats (§ 422) as felony offenses, and misdemeanor battery (§ 243, subd. (e)(1)). Norton moved to suppress all the evidence against him on Fourth Amendment grounds (§ 1538.5).
The following evidence was presented at the preliminary hearing: Norton had been dating M.D. for six months and stayed periodically at her apartment. On September 24, 2008, at approximately 11:30 p.m., M.D. called police to report that her boyfriend was vandalizing her car. Fairfield police officers Jeremy Nipper and Chad Rowlett were dispatched to her residence and arrived within five minutes of her call. Officer Nipper did an area check but saw no one on the street and decided to obtain additional information from M.D. After the officer knocked on the door of M.D.‟s apartment five or six times, Norton answered the door. Norton appeared agitated and said, "What the fuck do you want?" When Officer Nipper asked if M.D. was in the apartment, Norton claimed she was asleep inside. The officer looked past Norton into the apartment but could not see anyone, as the apartment was dark.
Officer Nipper testified that he became concerned about M.D.‟s welfare "because I couldn‟t see her... [and] [Norton] was in an agitated state." The officer explained: "She had called about a vandalism, and the person responsible was her boyfriend. Upon contact, trying to get additional information as to his whereabouts, he answers the door, and that just raises my suspicion as to her welfare not knowing what had taken place prior to her reporting this vandalism or what could have occurred." Accordingly, after asking Norton to step outside and sit on the porch, Officer Nipper called into the apartment for M.D., but she did not respond. As the officer continued to call into the apartment, Norton grew more and more agitated, believing police were going inside. Norton asked why the officers were there, why they needed to go inside the apartment, and why they wanted to talk to M.D. As Norton‟s agitation mounted, he stopped complying with the direction to sit still and remain on the porch, so the officers handcuffed him to ensure their own safety. Officer Nipper noted a strong odor of alcohol on Norton.
Receiving no response from M.D., Officer Nipper called for backup so he and Officer Rowlett could go inside the apartment without leaving Norton unattended. While awaiting backup, Officer Nipper continued to call out for M.D., but she did not respond. Backup arrived within five minutes, and Officer Nipper entered M.D.‟s apartment with Officer Rowlett. Officer Nipper discovered M.D. in the rear bedroom, crouching behind the bed where her young children were sleeping. Her legs were covered in bruises, and she appeared nervous and scared. She wanted to know where Norton was and did not want him to hear her talking to the officers. After Officer Nipper assured M.D. that Norton was outside with other officers, she explained that Norton had been drinking for the past few days and assaulted her numerous times during this period, hitting and kicking her repeatedly. M.D. said Norton told her during an argument, "Try driving off - or try driving off now or try starting [your car] now." Believing he had vandalized her car, M.D. called the non-emergency number for police. She said she was afraid of Norton because he told her, "If you call the police, I‟ll fucking kill you."
A superior court judge acting as the magistrate (the magistrate) denied Norton‟s motion to suppress M.D.‟s statements, the officers‟ observations regarding her physical condition, and her testimony, which Norton characterized as "exploitation of the illegal entry to the residence." The magistrate found that M.D.‟s vandalism call implicating her boyfriend "is an inherently suspicious circumstance all by itself about what‟s going on at that moment [in] the relationship between these two parties." The magistrate observed, further, that within five minutes of the call, Officer Nipper was confronted at the door by Norton with an "inherently pugnacious" response and obvious agitation. Noting Norton‟s increasing agitation as Officer Nipper called into the apartment, and the officer‟s inability to see or obtain a response from M.D., the magistrate concluded, "[A]ll of that adds up to an exigent circumstance that authorizes at that moment the officer to do a welfare check inside the house under the officer‟s community caretaking function." The magistrate held Norton to answer on all three counts and added another count of corporal injury to a cohabitant based on M.D.‟s testimony. Norton was charged accordingly, in an information that asserted three prior convictions and two prior prison terms as sentence enhancements. He entered a plea of not guilty on all counts and denied the enhancement allegations.
In the trial court, Norton moved to set aside the information on Fourth Amendment grounds (§ 995), effectively seeking review of the magistrate‟s ruling regarding the validity of the search. Norton contended he had been committed without probable cause, as the only evidence against him was the product of an unconstitutional search. The trial court denied the motion. Shortly thereafter, Norton pleaded no contest to one count of corporal injury to a cohabitant (§ 273.5, subd. (a)), and the remaining counts and enhancement allegations were dismissed under the plea agreement. On December 17, 2008, the trial court sentenced Norton to the low term of two years and awarded him 127 days of presentence credit, consisting of 85 days of actual time in local custody and 42 days of conduct credit under former section 4019. Norton filed a timely notice of appeal from the judgment of conviction.
In October 2009, during the pendency of Norton‟s appeal, the Legislature amended section 4019 to afford additional presentence conduct credit to qualified prisoners. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) These amendments took effect on January 25, 2010, after submission of Norton‟s appeal but before it was decided. (Gov. Code, § 9600.) The next day, he filed a supplemental brief asking this court to vacate the submission to consider his entitlement to an additional 42 days of presentence conduct credit under section 4019, as amended, for a total of 169 days of presentence credit. We vacated the submission and requested supplemental briefing from the Attorney General on this issue. The Attorney General complied with our request, contending in his supplemental brief that Norton is not entitled to additional conduct credit because the amendments to section 4019 do not apply retroactively.
I. The Evidence Against Norton Was the Product of a Lawful Search
The validity of a police search is reviewable on appeal from a conviction entered on a plea of no contest if the defendant raised the issue in the trial court. (People v. Hobbs (1994) 7 Cal.4th 948, 956, applying section 1538.5, subd. (m); People v. Lilienthal (1978) 22 Cal.3d 891, 896 (Lilienthal).) To satisfy this requirement, a defendant whose motion to suppress evidence is denied at the preliminary hearing must renew his section 1538.5 motion at a special hearing in the trial court (§ 1538.5, subd. (i)) or move to set aside the information (§ 995) on Fourth Amendment grounds. (Lilienthal, supra, at p. 896.) As Norton raised the search ...