People v. Morales

Filed 3/26/14
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039915
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS120043A)

v.

BRITTANY MARIE MORALES,

Defendant and Appellant.

Pursuant to a negotiated plea, defendant Brittany Marie Morales pleaded no
contest to one misdemeanor count of possession of a controlled substance (Health & Saf.
Code, § 11377, subd. (a)). The court granted her three years probation; the court’s order
included a probation condition that she serve two days in the county jail, with credit for
time served. The court also imposed fines and fees.
In July 2013, defendant’s counsel filed an opening brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende) that set forth the facts of the case, but raised no
specific issue, and asked this court to review the record and determine whether there are
any arguable issues on appeal. Following our review of the entire record, we asked the
parties to brief the following question: “Which court has appellate jurisdiction over this
case: the Court of Appeal or the appellate division of the superior court?” We asked the
parties to discuss three cases, including this court’s recent opinion in People v. Scott
(2013) 221 Cal.App.4th 525 (Scott), which held, on similar facts, that appellate
jurisdiction is with the appellate department of the superior court. In their letter briefs,
both parties assert that this case is distinguishable from Scott procedurally and that this
court has jurisdiction over the appeal. We agree. In addition, we conclude that the
judgment must be corrected to impose but stay a mandatory probation revocation
restitution fine (§ 1202.44). After independently reviewing the record, we conclude that
there are no other arguable issues on appeal and will therefore affirm the judgment as
modified.

FACTS

The facts are based on the testimony of two Salinas Police officers at the
preliminary hearing.

Testimony of Officer Jeffrey Gibson

On January 2, 2012, shortly after noon, Officer Gibson was dispatched to room
228 of the Good Nite Inn to respond to a report of a domestic disturbance. The
dispatcher told Officer Gibson, who had worked for the Salinas Police Department for 19
years, that there was a possibility a baby was involved.
When he arrived at the motel, Officer Gibson went directly to room 228, which
was on the second floor; he did not go to the motel office. Officer Gibson was wearing
his police uniform. As he walked up the stairs, he did not hear any yelling, screaming, or
banging. When Officer Gibson got to the second floor landing, he saw an individual
standing two doors down from room 228, pointing at room 228. When Officer Gibson
got to room 228, someone came out of room 229 and also pointed at room 228.
Officer Gibson stood in front of room 228 and heard talking. He did not hear
angry voices or anything out of the ordinary, so he knocked on the door and announced
“Salinas Police.” He knocked “about five times” before someone answered the door.
Defendant opened the door three to four inches, peaked out, and immediately walked

2
away from the door. Officer Gibson said 30 seconds passed between the time he first
knocked on the door and the time defendant opened the door.
Officer Gibson did a “visual sweep” of the room, looking for threats, including
other people and weapons. The motel room consisted of one room with a bathroom; it
was not a suite. Officer Gibson saw defendant and one other woman standing near the
door to the bathroom. Neither woman said anything.
Officer Gibson decided to separate the women and asked defendant to walk
toward him. As she started to move, Officer Gibson took one step into the room.
Defendant took two or three steps toward the officer. As she passed a dresser, defendant
grabbed something from the top of the dresser with her right hand, and clenched it in her
fist. Officer Gibson could not tell what she had grabbed and did not know whether it was
a weapon. On cross-examination, he testified that there are handguns that can be
concealed in the palm of the hand. Defendant took one more step, sat on the bed, and
placed her right hand under her right thigh. By that time, another officer (Officer Lopez)
had arrived. Officer Gibson directed the other woman to step out of the room and she left
willingly with Officer Lopez.
Officer Gibson directed defendant to pull her right hand out from under her thigh
twice and she did not comply. Officer Gibson then grabbed defendant’s right wrist,
placed her in a “control hold,” and pulled her hand out from under her thigh. As he
pulled her hand out, a clear baggie fell out of her hand onto the bed. Officer Gibson, who
had worked in narcotics for six years, recognized the contents of the baggie as
methamphetamine.

Testimony of Officer Chris Swinscoe

A third officer, Officer Swinscoe, arrived at the scene and took over the
investigation; he arrested defendant for possession of methamphetamine. When

3
defendant stood up to be hand-cuffed, Officer Swinscoe saw a second baggie of
methamphetamine on the bed where she had been sitting.
Officer Lopez told Officer Swinscoe that the other woman, whose surname was
Greco, claimed to have been assaulted. Officer Swinscoe asked Greco if she wanted to
file assault charges against defendant and she said “no.” He asked defendant if she
wanted to file assault charges against Greco and she said “no.”
Officer Swinscoe gave defendant the Miranda1 warnings. After she waived her
Miranda rights, defendant told Officer Swinscoe she had last used methamphetamine two
days before. The officer tested the contents of the baggies and they were positive for
methamphetamine. The combined weight of the contents of the two baggies was
approximately 0.5 grams, which Officer Swinscoe testified was a usable amount.

PROCEDURAL HISTORY

Pre-Plea Proceedings in Trial Court

Defendant was charged by complaint with a single count: felony possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)). On January 12, 2012,
defendant waived formal arraignment and pleaded not guilty. A week later, defendant
moved to suppress the evidence of the methamphetamine pursuant to Penal Code section
1538.5,2 arguing that the police had conducted a warrantless search of her motel room in
violation of her Fourth Amendment rights.
The court conducted a preliminary hearing on March 7, 2012. At that time, the
court also took evidence and heard argument on the motion to suppress. The court denied
the motion to suppress. At that same hearing, defendant made a motion to reduce the
offense to a misdemeanor (§ 17, subd. (b)). The court denied that motion and held

1
Miranda v. Arizona (1966) 384 U.S. 436.
2
All further unspecified statutory references are to the Penal Code.

4
defendant to answer for felony possession of methamphetamine. The parties stipulated
that the matter could be certified to the superior court on the existing complaint. The
court struck the word “Complaint” on the complaint and replaced it with “Information.”
Defendant then pleaded not guilty to the “Information.”
On April 19, 2012, defendant filed a section 995 motion to dismiss, arguing that
the evidence presented at the preliminary hearing was insufficient to support a conviction
for possession of a controlled substance because the witnesses had not made an express
in-court identification of her. The prosecution opposed the motion, citing several points
in the testimony where the officers referred to defendant as “the defendant,” “Ms.
Morales,” or “the defendant in the case, Ms. Morales.”
On June 12, 2012, defendant renewed her motion to suppress in the superior court.
In her papers, she argued that Officer Gibson entered her motel room without a warrant
when he pushed the door open and broke the threshold with his arm and again when he
stepped into the room. Defendant also contended that there were no exigent
circumstances or community caretaking reasons that supported the warrantless entry into
her motel room. She argued that although the matter was reported as a domestic
disturbance, Officer Gibson had no specific facts regarding the severity of the disturbance
and did not hear a continued argument or physical altercation.
On June 22, 2012, the superior court heard the motion to dismiss (§ 995) and the
motion to suppress (§ 1538.5), and denied both motions. The court held that Officer
Gibson was justified in entering the motel room to deal with exigent circumstances and
acted reasonably in response to the situation presented. The court reasoned that Officer
Gibson, a 19-year veteran, was responding to a domestic violence call, which the court
characterized as “a danger zone.” The court found that this was not an anonymous,
unconfirmed report, but that the report was corroborated by the two persons who pointed
at room 228 and thereby confirmed that something had just happened there. The court

5
also relied on the time it took (30 seconds) for defendant to answer the door to a small
room and her unusual reaction to a police officer at her door.

Change of Plea and Sentencing

On January 15, 2013, pursuant to a negotiated disposition, the prosecution made a
motion to amend the “complaint” to allege misdemeanor possession of
methamphetamine. Defendant pleaded no contest to that offense. The court granted
defendant three years probation. The conditions of probation included that defendant
serve two days in jail with credit for two actual days served. The court ordered defendant
to pay a fine of $425, which was “inclusive of all penalties and assessments.” And the
court imposed a restitution fine of $140 (§ 1202.4, subd. (b)), a $40 court operations
assessment (§ 1465.8, subd. (a)(1)), and a $30 court facilities assessment (Gov. Code,
§ 70373). According to the court’s minute order, the court also imposed and stayed a
$140 probation revocation restitution fine (§ 1202.44). After defendant entered her plea
to the misdemeanor offense, all other charges were dismissed.

Appellate Proceedings

On January 18, 2013, defendant filed a notice of appeal in the superior court using
the judicial council form for misdemeanor appeals. Pursuant to Wende, supra, 25
Cal.3d 436, defendant’s appellate counsel filed an opening brief in the appellate division
of the superior court (hereafter sometimes “appellate division”) that stated the case and
the facts but raised no specific issue. Citing California Rules of Court, rule 8.304,3 the
appellate division certified this case for transfer to our court, on the ground that
defendant’s offense was originally charged as a felony. We appointed defendant’s
appellate counsel to represent her in this court and he filed the same opening brief in this

3
All further rules citations are to the California Rules of Court.

6
court that he had filed in the appellate division. We also notified defendant of her right to
submit written argument on her own behalf within 30 days. We have received no written
argument from defendant.

DISCUSSION

Probation Revocation Restitution Fine

As we have noted, according to the court’s minute order, the court imposed and
stayed a $140 probation revocation restitution fine (§ 1202.44). Our review of the
reporter’s transcript, however, reveals that the court did not mention the $140 probation
revocation restitution fine (§ 1202.44) at the time of sentencing.
“ ‘Rendition of judgment is an oral pronouncement.’ ” (People v. Mesa (1975) 14
Cal.3d 466, 471.) When there is a discrepancy between the oral pronouncement of
judgment and the minute order, the oral pronouncement controls. (People v. Zackery
(2007) 147 Cal.App.4th 380, 385.) “The clerk cannot supplement the judgment the court
actually pronounced by adding a provision to the minute order . . . . [Citation.] . . . [T]he
clerk’s minutes must accurately reflect what occurred at the hearing.” (Id. at pp. 387-
388.) Since imposition of the probation revocation restitution fine (§ 1202.44) is
mandatory when probation has been granted and the amount of the probation revocation
restitution fine is fixed by statute, we will correct the judgment to impose and stay a $140
probation revocation restitution fine. (§ 1202.44 [“In every case in which a . . . period of
probation is imposed, the court shall, at the time of imposing the restitution fine
[(§ 1202.4)] . . . , assess an additional probation revocation restitution fine in the same
amount [as the restitution fine]. This additional probation revocation restitution fine shall
become effective upon the revocation of probation”].)

7
Appellate Jurisdiction

As we have stated, upon conducting our independent review of the record, we
asked the parties4 to brief the question whether this court or the appellate division of the
superior court has appellate jurisdiction over this case.
The Courts of Appeal have “appellate jurisdiction over appealable orders from
‘felony case[s].’ (. . . § 1235, subd. (a); see Cal. Const., art. VI, § 11.) The appellate
divisions of the superior courts, by contrast, have appellate jurisdiction over appealable
orders from ‘misdemeanor case[s].’ (§ 1466; see Cal. Const., art. VI, § 11.)” (People v.
Nickerson (2005) 128 Cal.App.4th 33, 36 (Nickerson); § 1235, subd. (b) [“An appeal
from the judgment or appealable order in a felony case is to the court of appeal for the
district in which the court from which the appeal is taken is located”].)
Section 691 provides the following definitions: “ ‘Felony case’ means a criminal
action in which a felony is charged and includes a criminal action in which a
misdemeanor or infraction is charged in conjunction with a felony.” (§ 691, subd. (f);
italics added.) “ ‘Misdemeanor or infraction case’ means a criminal action in which a
misdemeanor or infraction is charged and does not include a criminal action in which a
felony is charged in conjunction with a misdemeanor or infraction.” (§ 691, subd. (g).)
A “felony is a crime that is punishable with death, by imprisonment in the state
prison, or notwithstanding any other provision of law, by imprisonment in a county jail
under the provisions of subdivision (h) of Section 1170.” (§ 17, subd. (a).) Section 1170,
subdivision (h) sets forth rules regarding the sentencing of felony offenders under the
Criminal Justice Realignment Act of 2011.
Rule 8.304 governs appeals in felony cases. It provides in relevant part: “(a) . . .
[¶] (1) To appeal from a judgment or an appealable order of the superior court in a felony

4
The People’s letter brief was filed by the Monterey County District Attorney’s
Office, after consultation with the Attorney General.

8
case . . . the defendant or the People must file a notice of appeal in that superior court.
. . . . [¶] (2) As used in (1), ‘felony case’ means any criminal action in which a felony is
charged, regardless of the outcome. A felony is ‘charged’ when an information or
indictment accusing the defendant of a felony is filed or a complaint accusing the
defendant of a felony is certified to the superior court under . . . section 859a. A felony
case includes an action in which the defendant is charged with: [¶] (A) A felony and a
misdemeanor or infraction, but is convicted of only the misdemeanor or infraction; [¶]
(B) A felony, but is convicted of only a lesser offense; or [¶] (C) An offense filed as a
felony but punishable as either a felony or a misdemeanor, and the offense is thereafter
deemed a misdemeanor under . . . section 17(b).” (Italics added.)
The Advisory Committee comment to rule 8.304 states in part: “Rule 8.304(a)(2)
makes it clear that a ‘felony case’ is an action in which a felony is charged regardless of
the outcome of the action. Thus the question whether to file a notice of appeal under this
rule or under the rules governing appeals to the appellate division of the superior court
(rule 8.700 et seq.) is answered simply by examining the accusatory pleading: if that
document charged the defendant with at least one count of felony (as defined in . . .
section 17(a)), the Court of Appeal has appellate jurisdiction and the appeal must be
taken under this rule even if the prosecution did not result in a punishment of
imprisonment in a state prison. [¶] It is settled case law that an appeal is taken to the
Court of Appeal not only when the defendant is charged with and convicted of a felony,
but also when the defendant is charged with both a felony and a misdemeanor
(. . . § 691(f)) but is convicted of only the misdemeanor (e.g., People v. Brown (1970) 10
Cal.App.3d 169); when the defendant is charged with a felony but is convicted of only a
lesser offense (. . . § 1159; e.g., People v. Spreckels (1954) 125 Cal.App.2d 507); and
when the defendant is charged with an offense filed as a felony but punishable as either a
felony or a misdemeanor, and the offense is thereafter deemed a misdemeanor under . . .
section 17(b) (e.g., People v. Douglas (1999) 20 Cal.4th 85; People v. Clark (1971)

9
17 Cal.App.3d 890).” (Advisory Com. com., 23 pt. 3 West’s Ann. Codes, Rules (2006
ed.) foll. rule 8.304, p. 152, italics added; see also Nickerson, supra, 128 Cal.App.4th at
p. 37 [quoting Advisory Committee comment to former rule 30, the predecessor to rule
8.304].)
In this case, defendant was charged by complaint with a single offense: felony
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Although the
offense is a “wobbler” and may be punished as either a felony or a misdemeanor,5
defendant was charged with a felony violation of the statute. After the preliminary
hearing, defendant was held to answer and the parties stipulated that the matter could be
certified to the superior court on the existing complaint. This case therefore meets the
definition of a “felony case” under rule 8.304(a)(2), since a “complaint accusing . . .
defendant of a felony [was] certified to the superior court.” And under subdivision
(a)(2)(B) of rule 8.304, although defendant was ultimately convicted of a lesser offense,
this is still a felony case for the purposes of appellate jurisdiction, since defendant’s
offense was charged as a felony.
Nickerson does not compel a different conclusion. In that case, the original
complaint alleged a felony and two misdemeanors. After the preliminary hearing, the
trial court, acting as a magistrate, held the defendant to answer only on the two
misdemeanors. After a jury convicted the defendant of one of the misdemeanors, the
defendant filed a notice of appeal in the superior court and the clerk of the court directed
the appeal to the court of appeal. (Nickerson, supra, 128 Cal.App.4th at p. 36.) The issue
on appeal was: “when is a felony ‘charged’ for purposes of ascertaining appellate
jurisdiction?” (Id. at p. 37.) The court held that a defendant is not charged with a felony
within the meaning of section 691 until an information or indictment is filed or a

5
Health and Safety Code section 11377, subdivision (a) provides that possession
of methamphetamine “shall be punished by imprisonment in a county jail for a period of
not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code.”

10
complaint is certified to the superior court pursuant to section 859. (Id. at p. 38.) The
court concluded that when the case goes before the magistrate for a preliminary
examination and the court as magistrate reduces all of the felony charges from felonies to
misdemeanors, the defendant is never charged with a felony. The resulting case is thus a
misdemeanor case and appellate jurisdiction belongs in the appellate division of the
superior court. (Ibid.)
Unlike Nickerson, after the preliminary hearing in this case, the court held
defendant to answer on the felony charge and the parties stipulated that the felony
complaint would be certified to the superior court. At that point, under rule 8.304, the
case was a felony case. And, as we shall explain, the case remained a felony case
thereafter. Since this is a felony case, the Court of Appeal has appellate jurisdiction.
Likewise, this court’s recent decision in Scott, supra, 221 Cal.App.4th 525 does
not compel a different result. Following a preliminary hearing in that case, the defendant
was held to answer on one felony count. Eight days later, the prosecution filed an
information charging the defendant with one felony and three misdemeanors. (Id. at
p. 527.) Under rule 8.304, at that point, the case became a felony case. Four days after
that, however, the prosecution moved to dismiss the felony count for insufficiency of the
evidence. The court dismissed the felony and the defendant pleaded not guilty to the
three misdemeanors. (Id. at p. 527-528.) The case was subsequently set for trial in a
misdemeanor department. (Id. at pp. 528, 533, fn. 5.) On the first day of trial, the
prosecution filed a “ ‘First Amended’ misdemeanor complaint” charging the defendant
with three misdemeanor offenses. (Id. at p. 528.) The jury found the defendant guilty as
charged. (Ibid.) The defendant filed a “ ‘Misdemeanor’ ” notice of appeal and other
appellate notices using the forms for misdemeanor appeals. (Id. at pp. 528, 533.) Scott’s
appeal eventually made its way to this court.6

6
The opinion in Scott does not explain how the appeal ended up in this court.

11
 In Scott, this court “questioned whether appellate jurisdiction was vested in this
court or the appellate division of the superior court” and asked the parties to brief the
issue. (Scott, supra, 221 Cal.App.4th at p. 528.) After reviewing section 691, rule 8.304,
the Advisory Committee comment to the rule, and the cases cited in the comment, this
court concluded that the appellate division of the superior court had appellate jurisdiction
in Scott and transferred the case to that court. (Id. at pp. 528-529, 534.) In concluding
that Scott was a misdemeanor case, we noted that the only felony count had been
dismissed before trial and that the defendant was charged by an “amended” complaint
with only three misdemeanors. We explained, “[a]t this point, Scott stood charged with
misdemeanors and no felony counts. It is axiomatic that for all intents and purposes this
is a case in which Scott was not charged with a felony. Based on . . . a close reading of
the Advisory Committee comment to rule 8.304 [and the cases cited therein], we are
convinced that the ‘regardless of the outcome’ language in rule 8.304 does not extend to
cases wherein the felony count is dismissed entirely, because in this situation there is no
‘prosecution.’ ” (Id. at p. 532.) We explained that when a pleading is amended, the
amended pleading supersedes the original pleading, which is “set aside and abandoned.”
(Id. at pp. 532-533.) We also stated that “[t]he superior court recognized that this was a
misdemeanor case and set the trial in a misdemeanor department. Scott’s trial counsel
recognized that this was a misdemeanor case and filed a misdemeanor notice of appeal,”
as well as other forms used in misdemeanor appeals. (Id. at p. 533.) Having determined
that the effective pleading charged the defendant with only three misdemeanors, we held
that the appeal was not properly before this court and transferred it to the appellate
division of the superior court. (Id. at p. 534.)
Defendant asserts that, unlike Scott, her offense “was charged as a felony. She
was held to answer for a felony, arraigned on a felony information, pleaded to a felony,
and proceeded to trial on the felony calendar. She ultimately pleaded to a reduced charge

12
on the existing information.” Defendant contends that since she was charged with and
prosecuted for a felony, appellate jurisdiction of her case is in the Court of Appeal.
This case is procedurally distinguishable from Scott in several respects. After this
case was certified to the superior court on the existing complaint, which charged
defendant with a felony, it remained in the superior court for several months. During that
time, defendant filed a section 995 motion to dismiss and renewed her motion to
suppress. After the court ruled on the motion to suppress, the parties appeared before the
court seven times for pretrial and trial setting conferences. Unlike Scott, the record here
does not reveal whether these proceedings took place in a felony or a misdemeanor
department, or whether the Monterey County Superior Court maintains separate
departments for felony and misdemeanor cases. Nonetheless, the minute orders for each
of the motion hearings and the pretrial proceedings all identified this case as one in which
a felony had been charged.
In Scott, the prosecution moved to dismiss the only felony charge for lack of
evidence shortly after filing the information. Unlike Scott, the felony count in this case
was not dismissed. Instead, it was reduced to a misdemeanor in accordance with the
parties’ plea agreement. In Scott, the prosecution filed an entirely new amended
complaint on the first day of trial, which charged only misdemeanor offenses, and which
superseded the previously filed information. In contrast, the prosecution in this case did
not file an amended pleading. The felony complaint, which had been certified to the
superior court, remained in effect up until the time of the negotiated plea and was
amended by interlineation at the change of plea hearing to allege a misdemeanor count of
possession of methamphetamine to conform to the parties’ negotiated disposition.
Furthermore, the fact that this case was a felony case when the parties entered into their
plea agreement may have led to the negotiated disposition agreed to by defendant.
Defendant contends that “appellate jurisdiction is ascertained by examining how
the case was originally charged.” Under Nickerson, it is imprecise to say the original

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charging document controls. In Nickerson, although the original complaint contained a
felony count, the defendant was never held to answer for the felony and the case
proceeded past the preliminary hearing stage on the misdemeanor counts only. No felony
information or indictment was ever filed; no complaint charging the defendant with a
felony was ever certified to the superior court. Thus, even though the original charging
document contained a felony, it was a misdemeanor case for the purpose of appellate
jurisdiction. Under rule 8.304, once the defendant is held to answer for a felony offense
and an information or indictment is filed or a complaint accusing the defendant of a
felony is certified to the superior court, the charging document then controls. Scott is not
to the contrary, since the original information in that case ceased to exist when the
amended misdemeanor complaint was filed.
The People urge us to follow the “regardless of the outcome” test7 in rule 8.304,
arguing that it provides “a workable bright line rule to determine whether appellate
jurisdiction rests with the Court of Appeal or the appellate division of the superior court.
That bright line would be determined by the filing of an information or indictment or a
complaint being certified to the superior court.” We generally agree that this “regardless
of the outcome” bright line rule governs appellate jurisdiction, except in cases like Scott,
where the prosecution files an entirely new pleading after dismissing any and all felony
counts.
For these reasons, we agree with the parties that appellate jurisdiction in this case
lies with this court. After independently reviewing the record, we also conclude that
there are no other arguable appellate issues, except for the imposition and stay of a
probation revocation restitution fine (§ 1202.44) as previously noted.

7
As noted , rule 8.304(a)(2) provides in part: “ ‘felony case’ means any criminal
action in which a felony is charged, regardless of the outcome. A felony is ‘charged’
when an information or indictment accusing the defendant of a felony is filed or a
complaint accusing the defendant of a felony is certified to the superior court under . . .
section 859a.” (Italics added.)

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 DISPOSITION

We modify the judgment to impose and stay a $140 probation revocation
restitution fine (§ 1202.44). As so modified, the judgment is affirmed.

_______________________________
Márquez, J.

WE CONCUR:

_____________________________________
Rushing, P. J.

______________________________________
Premo, J.

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Trial Court: Monterey County
Superior Court No.: SS120043A

Trial Judge: The Honorable Russell D. Scott

Attorney for Defendant and Appellant Teresa Biagini
Brittany Marie Morales.: under appointment by the Court of
Appeal for Appellant

Attorneys for Plaintiff and Respondent Glenn Pesenhofer
The People: Deputy District Attorney