(Super. Ct. No. SF109307B) C067748 (Super. Ct. No. SF109307A)
The opinion of the court was delivered by: Robie , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Fryda Bryan and Michael Dale Trout were convicted of various offenses arising from the operation of a meth lab. On appeal, they both challenge the denial of their motions to suppress evidence recovered from the house where the lab was located, as well as challenging various aspects of the fines, fees, and penalties imposed on them. Trout also contends the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of attempted manufacture of methamphetamine and in failing to stay his punishment for possession of methamphetamine pursuant to Penal Code section 654.
We find no merit in defendants' challenges to the search of the house where the meth lab was located and no merit in Trout's claim of instructional error. We agree, however, that Trout's sentence for possessing methamphetamine should have been stayed pursuant to Penal Code section 654, and we also conclude that both cases must be remanded for proper calculation and documentation of all fines, fees, and assessments imposed. Accordingly, we will affirm the convictions, but modify Trout's judgment to stay his sentence for possessing methamphetamine and remand both cases for further proceedings on the fines, fees, and penalties.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2008, Stockton police searched a residence on Sunnyside Avenue for a suspected meth lab pursuant to a search warrant. Bryan and Trout were both present when the police arrived to search the house; the house was rented to Bryan. Inside and outside the house, the police found numerous items associated with the manufacture of methamphetamine, including empty boxes of allergy medication containing pseudoephedrine or ephedrine, lye drain opener, and hydrogen peroxide. They also found methamphetamine and a shotgun. Both defendants had the smell of methamphetamine manufacturing on them.
Bryan and Trout were each charged with manufacturing methamphetamine, possession of ephedrine or pseudoephedrine with the intent to manufacture methamphetamine, possession of hydriodic acid with the intent to manufacture methamphetamine, and possession of methamphetamine, along with various enhancements. Trout was also charged with being a felon in possession of a firearm.
Before trial, both defendants challenged the search warrant and moved to suppress the evidence from the house. The trial court (Judge Bernard Garber) quashed the warrant on the ground the underlying affidavit was insufficient to establish probable cause for the search of the house on Sunnyside. The People then sought to justify the search as a warrantless probation search. Officer Steven Cole of the Stockton Police Department testified that prior to the search, he had determined that Trout was on searchable probation; he had determined that the PG&E bill on the Sunnyside house was in Trout's name; he had seen Trout working on the security camera above the front door; and he had seen a motorcycle that was registered to Trout in front of the house numerous days in a row at different hours of the day and night. There was also evidence that when he was in jail, Trout told his mother, "[I]t's my house. I give you permission to go there."
The trial court determined the search was a valid probation search of Trout's residence. Bryan's attorney then argued that the police failed to "give knock notice" before conducting the search. The court concluded there was "substantial compliance with knock notice" and denied the motions to suppress.
The jury found both defendants guilty of all charges against them with the exception of the felon in possession charge against Trout, on which the jury deadlocked. (That charge was eventually dismissed.) The trial court (Judge William Murray) imposed a six-year prison term on Bryan but suspended execution of the sentence and placed her on probation. The court imposed a 19-year prison term on Trout, based in part on enhancements for three prior drug convictions and a prior strike conviction for assault on a peace officer.
Denial Of The Motions To Suppress
Trout contends the trial court erred in finding that the officers who conducted the search substantially complied with the knock-and-announce requirement. He further contends that because of the knock-and-announce violation, the search violated his Fourth Amendment rights, and the evidence resulting from the search should have been suppressed. We conclude that even if there were a knock-and-announce violation here (a point we do not decide), suppression of evidence pursuant to the exclusionary rule was not available to Trout as a remedy for that violation.
In Hudson v. Michigan (2006) 547 U.S. 586 [165 L.Ed.2d 56], the United States Supreme Court confronted the question of "whether the exclusionary rule is appropriate for violation of the knock-and-announce requirement." (Id. at p. 590 [165 L.Ed.2d at pp. 63-64].) A majority of the court concluded that "the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial--incomparably greater than the factors deterring warrantless entries when Mapp [v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081]] was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified."*fn1 (Hudson, at p. 599 [165 L.Ed.2d at p. 69].)
Inexcusably, Trout does not mention Hudson in his opening brief. In his reply brief, Trout argues that Hudson does not "necessarily provide the 'bright-line rule' that [the People] argue it does." He points to a decision by a Missouri appellate court -- State v. Gibbs (2007) 224 S.W.3d 126 -- for the proposition that "suppression of evidence is still required where there is a violation of knock-notice requirements involving [a warrantless probation search]." But Gibbs does not stand for that proposition. In Gibbs, the defendant sought to suppress evidence the police obtained after making a warrantless and nonconsensual entry into a motel room to make a felony arrest. (Id. at pp. 130-135.) The appellate court decided that, notwithstanding Hudson, suppression of the evidence was still required by Payton v. New York (1979) 445 U.S. 573 [63 L.Ed.2d 639] in that circumstance because there was insufficient evidence of any exigent circumstances necessary to justify a "no knock" entry. (Gibbs, at pp. 134-135.)
We have no quarrel with the decision in Gibbs, because a warrantless search following a "no knock" entry to make a felony arrest that was not justified by exigent circumstances is readily distinguishable from a search pursuant to a lawful warrant following a failure to knock and announce, which is what was at issue in Hudson. (See Hudson v. Michigan, supra, 547 U.S. at p. 604 [165 L.Ed.2d at p. 72], conc. opn. of Kennedy, J.) It is true that here, the search was not made pursuant to a valid warrant; it was, however, a valid probation search. Moreover, as the appellate court explained in In re Frank S. (2006) 142 Cal.App.4th 145, a case involving a parole search, the "contention that Hudson applies only where the police have a search warrant is not persuasive." (Frank S, at p. 152.) This is so because the rule in Hudson "turns on the nature of the constitutional violation at issue, not the nature of the police's authority for entering the home. The interest asserted by defendant is that protected by the prohibition on warrantless home searches and arrests, namely, the right to shield one's person and property from the government's scrutiny. [Citation.] But violation of the knock-and-announce rule did not implicate that interest. As in Hudson, because 'the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.' " (Frank S., at p. 152.)
Noting the decision in Frank S., Trout contends "current California law has not extended [Hudson's] holding beyond cases involving parolees" and "Hudson should not be extended to cases [like this one] involving probationers." He offers no valid reasoning for making such a distinction, however, and we cannot imagine one. Hudson stands for the proposition that evidence obtained in an otherwise valid search cannot be suppressed just because the police failed to comply with the knock-and-announce requirement before engaging in that search. As we see it, it does not matter whether the search at issue was pursuant to a valid search warrant or was justifiable as a parole search or a probation search; the rationale of Hudson applies equally to any of those situations. Because suppression of evidence ...