Filed 8/10/21 P. v. Ralls CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Siskiyou)
----
THE PEOPLE, C087286
Plaintiff and Respondent, (Super. Ct. No. MCYK-
CRBF-2015-137)
v.
MITCHELL LEE RALLS,
Defendant and Appellant.
Defendant Mitchell Lee Ralls fired a single shot through the window of a car in
which Jeraime Whittle was sleeping during the early morning hours of January 21, 2015.
The bullet entered Whittle’s forehead and resulted in his death. The evidence introduced
during trial does not shed light on why defendant shot the victim. The jury convicted
defendant of first degree murder (Pen. Code, § 187),1 possession of a firearm by a felon
1 Undesignated statutory references are to the Penal Code.
1
(§ 29800, subd. (a)(1)), unlawful possession of ammunition (§ 30305, subd. (a)(1)), and
misdemeanor possession of more than 28.5 grams of marijuana (Health & Saf. Code,
§ 11357, subd. (b)). The jury found true the allegation that defendant personally
discharged a firearm in commission of the murder. (§ 12022.53, subd. (d).) The trial
court found true the allegation that defendant had served a prior prison term. (§ 667.5,
subd. (b).) The trial court sentenced defendant to an indeterminate prison term of 50
years to life plus a consecutive determinate term of 4 years 8 months. The trial court also
imposed various fines and fees.
On appeal, defendant contends (1) the trial court erred in denying his motion to
suppress evidence seized pursuant to three search warrants, (2) two sentence
enhancements imposed under section 667.5, former subdivision (b), must be stricken
because a subsequent change in law renders that statute inapplicable to his prior prison
term, (3) the restitution fine for his misdemeanor conviction must be stricken to reduce
the total restitution fine to $10,000, and (4) under People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas) various fines and fees must be stayed until the trial court
holds an ability to pay hearing on remand.
The Attorney General responds that the searches were lawfully executed under
valid search warrants, defendant’s two prior prison term enhancements must be stricken,
the restitution fine must be reduced to $10,000, and the claim under Dueñas has been
forfeited and lacks merit.
We conclude that the trial court properly denied the motion to suppress because all
three search warrants were supported by probable cause. Defendant’s two 1-year
sentence enhancements for the prior prison term must be stricken. The total restitution
fine must be reduced to $10,000. We disagree with Dueñas and its reasoning.
Accordingly, we strike the $150 restitution fine imposed on the misdemeanor, and we
strike the two 1-year sentence enhancements for the prior prison term. In all other
respects, we affirm.
2
FACTUAL AND PROCEDURAL HISTORY
Prosecution Evidence
On the night of January 20, 2015, Nicole Harmon and Whittle pulled their
Oldsmobile into the Pilot Travel Center (Pilot) in Weed, California. A man hung out
with Harmon and Whittle in their car as they talked for about three hours before the man
exited the car and walked away. Harmon fell asleep around 9:00 p.m. while Whittle sang
her to sleep. Harmon woke up around 5:30 a.m. to “the sound of a window bashing.”
She saw Whittle bleeding from the back of his head and also from the middle of his
forehead. Harmon panicked, ran out of the car to see if anyone could help her, got back
into the car, and called 911. Harmon applied direct pressure to the wound, but Whittle
struggled against her and tried to wipe the blood out of his eyes. A police officer and
ambulance arrived sometime later. After Whittle arrived at the hospital, he never
regained consciousness. Whittle died of a single gunshot wound to his head. The bullet
was recovered during the autopsy.
Lia Carter and Kimberly Cummins were working at the Pilot in the early morning
hours on January 21, 2015. Carter had known defendant since her childhood. At 1:49
a.m., defendant entered the store while Carter was cashiering and bought gas for his Jeep.
After defendant filled gas, Carter saw him parked in the Pilot parking lot “just sitting in
the passenger seat of his car.” Carter did not see anyone else. She checked on defendant
every 30 to 40 minutes that early morning. Once, Carter saw defendant standing outside
his vehicle while smoking.
Cummins testified that she had known defendant since elementary school. In the
early morning hours of January 21, 2015, Cummins was told by a Pilot customer that
defendant was asking about her. The customer was worried for Cummins and feared for
Cummins’s safety because the customer had seen a knife and marijuana on defendant’s
dashboard. Cummins went outside and saw defendant acting strangely “rocking his head
3
forward and backward, side to side.” At 4:00 a.m., Cummins went outside, and
defendant flicked his car lights at her. Around 4:15 a.m., Cummins observed defendant’s
Jeep parked immediately next to the Oldsmobile occupied by Whittle and Harmon. At
5:36 a.m., Carter saw defendant’s Jeep speed out of the Pilot parking lot without stopping
at the exit.
Weed Police Department Sergeant Justin Mayberry responded to the Pilot around
5:45 a.m. At the Pilot, Sergeant Mayberry located the Oldsmobile and observed shattered
glass on the driver’s side of the vehicle. No shell casing was found. Police officers
recovered cigarette butts from the area around the Oldsmobile. Forensic testing
determined that four of the cigarette butts matched defendant’s DNA profile and one
matched Whittle’s DNA profile.
On January 26, 2015, Siskiyou County Sheriff’s Department Patrol Sergeant
Robert Giannini did a welfare check on defendant’s residence. At the residence, Sergeant
Giannini contacted defendant, his 16-year-old daughter M.,2 his wife Amy, and Amy’s
son James. At the time of the welfare check, M. had a serious drug addiction.
Approximately two hours prior to the welfare check, M. saw defendant with a gun. M.
sent a text message about defendant’s possession of the gun to Breanna Culbertson.
Culbertson was M.’s fiancée at the time, and they texted each other often.
During the welfare check, M. told Sergeant Giannini that she had seen defendant
with a gun. M., however, had not been the one to call the police. She suggested the
police search defendant’s bedroom and Jeep for the gun. Sergeant Giannini obtained
consent from Amy to search the bedroom. The officer encountered defendant in his
underwear. Defendant retrieved a pair of pants. Sergeant Giannini checked the pants to
2 We refer to defendant’s daughter by her first initial in light of our discussion of
M.’s juvenile record.
4
make sure they did not contain a weapon. The officer did not search defendant’s Jeep or
anywhere else.
M. was surprised that the police officer did not find the gun. Sergeant Giannini
learned from Amy that she and defendant had been arguing that day but that she was not
concerned for her safety. Defendant appeared calm and cooperative. Sergeant Giannini
left and would later write a report in which he stated “disposition exceptionally cleared,”
meaning that the investigation of the welfare check had been concluded.
On January 27 and 28, 2015, police officers executed several search warrants on
defendant’s residence, Lincoln, and Jeep. Defendant also gave consent to search his
Lincoln sedan that was parked in the carport. Inside the Lincoln, officers found a loaded
.380 semiautomatic gun in a sock and another sock containing additional ammunition.
M. identified the gun as one she had seen defendant carrying around the residence. In the
living room, police officers found what they thought to be a soft-sided gun holster. In the
master bedroom closet, the officers located a gun-cleaning kit, eight .357 Magnum
ammunition rounds, and a .22-caliber round. Socks identical to those found in the
Lincoln were retrieved from a dresser in the master bedroom.
Inside the Jeep, the police found the camouflage jacket that Cummins had seen
defendant wear during the morning of the murder. The Jeep also contained three cell
phones and an ice chest. The ice chest contained a total of 419.5 grams of marijuana
distributed in four packages. California Highway Patrol Officer Kaylon Benson testified
that he had participated in the search of defendant’s residence and discovered the
marijuana in the Jeep. Based on Officer Benson’s training, he opined that the quantity of
marijuana discovered in the Jeep was possessed for sale.
A firearms and ballistics expert compared the bullet retrieved from the victim’s
head with a bullet test-fired from the gun found in defendant’s Lincoln. The bullet used
to kill the victim had been fired from the gun retrieved from the Lincoln. Additional
5
forensic testing showed that defendant’s DNA was present on the trigger and trigger
guard of the same gun.
Defense Evidence
Called by the defense as a witness, M. testified as follows: During defendant’s
trial, M. was incarcerated. On January 21, 2015, she was 16 years old. M. was living
with her then-fiancée Breanna Culbertson even though she had not received permission
from her parents to do so. M. had run away from home around December 2014. M. told
her parents that she had been abducted when she had actually been living with
Culbertson. M. was using heroin, OxyContin, methamphetamine, marijuana, and
alcohol. She also smoked tobacco cigarettes. During January 2015, M. would go home
and spend the night at her parents’ house “from time to time.” M.’s mother, Amy, would
try to keep her home – sometimes by calling M.’s probation officer and filing missing
person reports.
Sometime during in the early morning hours of January 21, 2015, M. was walking
beside a road to see a family member because she and Culbertson had run out of toilet
paper. Defendant was driving by, stopped, and asked if M. wanted a ride. M. got into the
car because she missed him and her mother. M. spent a couple of hours talking with
defendant. While they were talking, M. received a text from Culbertson telling M. to
look for a backpack in a wooded area. M. found the backpack, looked inside, and
discovered a gun. She did not tell defendant about the gun. M. went back to the cottage
she shared with Culbertson. At the cottage, M., Culbertson, and a mutual friend smoked
methamphetamine. Sometime during the next week, M. went to her parents’ house where
she hid the gun in defendant’s Lincoln as instructed by Culbertson. M. later lied to the
police about seeing defendant walking around with a gun – again, at the instruction of
Culbertson.
6
James testified that he did not see his stepfather carry a gun around. A day after
the initial welfare check, James observed the investigating officer enter their house and
smoke a cigarette. The officer continued to smoke despite being asked not to do so.
Joseph Lapthorne testified that he worked as a private investigator, having
previously retired from service as a California Highway Patrol officer. Based on his
training and experience, Lapthorne opined that the marijuana found in defendant’s Jeep
was not possessed for sale. Lapthorne also testified that it was possible for a car to
bypass the north parking lot and exit of the Pilot by taking a dirt road behind the
semitruck parking area.
Rebuttal Evidence
On rebuttal, City of Weed Police Corporal James Clair testified that he showed a
photo of the gun retrieved from the Lincoln to M. M. identified the gun as the one that
she had seen defendant carrying. M. appeared to be apprehensive. She stated she did not
feel safe because defendant “was dangerous.” M. never mentioned Culbertson, a
backpack, or that she had been talking with defendant on the morning of the murder.
Surrebuttal Evidence
Amy testified that the police misidentified a child’s seatbelt harness for a gun
holster.
DISCUSSION
I
Motion to Suppress
Defendant contends the trial court erred in denying his motion to suppress
evidence seized pursuant to three search warrants as well as the consent search of the
Lincoln sedan.
7
A.
Search Warrants
We review the background of the first three search warrants authorized for
defendant’s residence because of the scope of the argument presented by defendant.
Defendant limits his appellate challenge to the first three search warrants on grounds that
he “lacks standing to challenge some of the searches, and none of the evidence seized
was critical to the prosecution’s case, particularly without the evidence seized pursuant to
the first three search warrants.”
1. The First Search Warrant
At 3:55 p.m. on January 27, 2015, the trial court approved a warrant to search
defendant’s residence, including any containers, vehicles, and outbuildings at the
residential property. The search warrant was supported by attachments A, B, and C.
Attachment A contains Corporal Clair’s statement of expertise in law enforcement with
an emphasis on training relating to illicit substances and crime investigations.
In attachment A, Corporal Clair also related that a welfare check had been
conducted on defendant’s residence on January 26, 2015, after a “reporting party stated
that there was a male subject at the residence and was in possession of a handgun.”
However, “[t]he result of the call was found unfounded.” Defendant’s “extensive
criminal history” was listed along with the fact that his prior convictions prohibited him
from possessing a firearm. For additional probable cause, the attachment referred to the
sealed attachment B.
In attachment B, Corporal Clair stated that he received snapshots of text messages
between M. and Culbertson. The snapshots were included in attachment C, another
sealed portion of the application for the search warrant. On the first page of the
snapshots, Culbertson tells M. that a friend said defendant committed the shooting at the
Pilot. M. subsequently texted Culbertson: “And I don’t even want to be in the same
8
fucking room with him . . Dude he’s standing here with a gun in his back pocket right
now!”
In additional text messages, M. told Culbertson that the police left without finding
anything, that they asked defendant to search his Jeep but M. thought he refused, and that
M. worried defendant “will flip out on us.” Culbertson told M. that the police would be
back with a search warrant. M. responded, “This is retarded like they obviously didn’t
fucking look good enough!!!!!! [¶] I hope so!! This is fucking dumb dude they are
suppose to protect people!” Culbertson immediately texted back, “Delete all your texts
and messages. Please. Like now.” M. also texted Culbertson: “If they know it was him
at pilot why don’t they just fucking arrest him!!!” Culbertson answered: “Because they
don’t have evidence babe.”
In addition to recounting the substance of the text messages between M. and
Culbertson, attachment B also reviewed the welfare check that had occurred the prior
day. Corporal Clair noted, “A weapon was not located and the report shows the
conclusion was unfounded.” Corporal Clair recounted that he had earlier that day spoken
by telephone with Culbertson as follows: “I asked her to tell me what had happened. She
advised me that her friend, [M.] had sent her a text message about her dad ‘freaking out’
and walking around the house carrying a gun. [M.] advised [Culbertson] that [M.] had
been dropped off at the residence and that [defendant] did not know who she ([M.]) was.
[M.] advised [Culbertson] that [defendant] grabbed a handgun and confronted [M.]
stating to her, ‘you almost got shot.’ [¶] [Culbertson] stated that she is afraid for [M.’s]
safety as well as the safety of [M.’s3] mother and siblings. [Culbertson] stated that
[defendant] is violent and a dangerous person.”
3 Although attachment B uses Culbertson’s name here, context suggests that
Corporal Clair intended to refer to M.
9
Corporal Clair explained that attachments B and C were filed confidentially
because he felt “that if any of these informants’ identities are revealed it could subject
them to possible physical retaliation, endangering their lives and their family’s health.
Based on the criminal history of [defendant] and his past [drug] abuse (per [M.]), I
believe that [defendant] would go to the extents of killing either [M.] or [Culbertson] if
he was to be made aware that they had talked to each other, thus leading the information
to me. I fear for the safety of both [M.] and [Culbertson].”
The return to the search warrant lists items seized from defendant’s residence
including: eight .357 Magnum bullets, a .22-caliber bullet, a four-bladed shuriken, a gun-
cleaning kit, Remington bore cleaner, a glass smoking pipe with crystalline residue,
several cell phones, and four bags containing a total of 419.5 grams of marijuana.
2. The Second Search Warrant
The second search warrant was approved at 11:05 p.m. on January 27, 2015. The
warrant authorized the search of defendant’s residence and his Lincoln sedan. In support
of the application for the second warrant, Corporal Clair stated that the Lincoln was
observed in the carport of defendant’s residence during the search pursuant to the first
warrant. Corporal Clair further explained: “I contacted [defendant] who was seated in
the back of a [Siskiyou County Sheriff’s Department] patrol vehicle. [Defendant] was
handcuffed in front and was smoking a cigarette. I asked him who the Lincoln belonged
to, he stated, ‘Me I guess.’ I asked him if I had his permission to search the vehicle. He
stated, ‘Yeah, I guess.”
Corporal Clair continued that police searched the Lincoln, including the trunk.
“Located behind the carpet, down near the passenger side rear wheel well, in a white sock
was a small, black Davis Industries .380 caliber semi-automatic hand gun, containing a
loaded magazine with five rounds of .380 ammunition loaded in it. Located near the
hand gun was another white sock containing seven lose [sic] .380 caliber rounds of
10
ammunition.” Based on these discoveries, Corporal Clair stated that they expected to
find defendant in possession of a handgun.4
The application for the second warrant contained attachment B, a confidential
summary of Corporal Clair’s interaction with M. Corporal Clair showed a photo of the
.380 gun found in the Lincoln to M. M. confirmed that the photo showed the gun she had
seen defendant carrying around on January 26, 2015. M. also said she was “ ‘[v]ery
much’ ” afraid of defendant.
The return to the second search warrant states that police officers seized a .380
Davis Industries semiautomatic handgun, seven .380-caliber bullets, a magazine
containing another five .380 bullets, and socks in which the items were discovered.
3. The Third Search Warrant
At 2:20 a.m. on January 28, 2015, the trial court approved a third warrant to search
defendant’s residence, including defendant’s Jeep and Lincoln as well as the persons of
defendant, Amy, and M. In support of the application, City of Weed Police Officer Jared
Klomparens stated that he had been informed Whittle had died of a gunshot wound to his
forehead. Officer Klomparens attended the autopsy of Whittle, which yielded a .380-
caliber bullet. The officer noted that a prior search of defendant’s residence resulted in
the discovery of a .380-caliber handgun from defendant’s Lincoln. Based on the
information in the application, Officer Klomparens expected that evidence related to the
murder would be found at defendant’s residence.
In the confidential attachment to the application for the warrant, Officer
Klomparens recounted that he had spoken with Carter and Cummins at the Pilot. Both
Carter and Cummins reported seeing defendant come into the Pilot during the evening of
4 The application does not make clear whether Corporal Clair referred to the
handgun already found in the Lincoln or whether the officer expected to find an
additional firearm.
11
January 20, 2015, and through the early morning hours of January 21, 2015. And both
witnesses recounted that defendant’s vehicle was parked next to the Oldsmobile during
the early morning hours of January 21, 2015. Officer Klomparens also noted the welfare
check that had been conducted on January 26, 2015, but had not yielded any guns.
A return to the third warrant lists the items seized as including a backpack
containing shards of glass and men’s pants with possible blood stains.
4. Defendant’s Motion to Suppress
In October 2015, defendant filed a motion to suppress evidence and unseal the
affidavits relied upon by the police in applying for the three search warrants issued for
defendant’s residence, Jeep, Lincoln, and persons of defendant, Amy, and M. The
prosecutor opposed the motion. After a hearing on the motion, the trial court ordered that
the three search warrants issued for defendant’s residence, Jeep, Lincoln, and persons of
defendant, Amy, and M. be unsealed consistent with People v. Hobbs (1994) 7 Cal.4th
948.5 In November 2015, defendant filed a supplemental motion to suppress in which he
moved to suppress the evidence seized pursuant to nine search warrants. Defendant
argued that the first search warrant was secured based on material omissions in the
support affidavit and that all subsequent search warrants were therefore the fruits of the
first unlawful search.
5. Trial Court Order Denying the Motion to Suppress
The trial court denied the motion to suppress the evidence. In denying the motion
as to the first and second search warrants, the trial court noted that it did not consider
statements made in text messages between M. and Culbertson that related to defendant’s
possible involvement in Whittle’s murder. However, the trial court found that M. was
very emphatic that she saw defendant with a firearm and was consistently frightened
5 The trial court denied the motion to unseal insofar as it sought to unseal matter
related to Facebook accounts belonging to M. and Culbertson.
12
about his possession of the gun. Moreover, M. was also very emphatic that defendant
confronted her with the firearm. M. made her statements to a friend and not to law
enforcement for purposes of having defendant arrested.
The trial court took into account that Culbertson “may have less than a stellar
background,” and M. “had some difficulty as well involving acts of moral turpitude as a
juvenile.” However, the fact that the texts were made between close friends and not for
purposes of getting defendant arrested lent indicia of reliability to them. On these bases,
the trial court found that there had been probable cause for the first and second search
warrants relating to defendant’s residence and vehicles.
In denying the motion to suppress as it related to the first and second warrants, the
trial court rejected an argument of defense counsel that the welfare check had proven
unfounded. The trial court noted that it considered the welfare check, but that it also
considered a later conversation between M. and Culbertson in which M. believed that the
handgun was in the Jeep or elsewhere outside the residence. This text exchange “would,
again, raise a new – the very distinct possibility that [defendant] with a prior felony
conviction was in possession of a weapon and had hidden that weapon.”
The trial court found probable cause supported the third search warrant, which
included defendant’s residence, the Jeep, the Lincoln, and the persons of defendant, Amy,
and M. The third search warrant was supported by statements of two witnesses at the
Pilot who personally knew defendant. Both witnesses had seen defendant loitering at the
Pilot parking lot at the time that Whittle’s car was parked there. Indeed, defendant’s Jeep
was seen parked immediately next to Whittle’s Oldsmobile. The Jeep left the parking lot
at 5:36 a.m. – four minutes before Harmon called 911. The trial court further noted that
13
the bullet retrieved from Whittle’s body was consistent with the gun recovered from
defendant’s Lincoln.6
B.
Review
Under the Fourth Amendment, the issuance of a search warrant requires probable
cause so that the “ ‘facts contained in the affidavit are such as would lead a [person] of
ordinary caution or prudence to believe, and conscientiously to entertain, a strong
suspicion of the guilt of the accused.’ ” (People v. Kraft (2000) 23 Cal.4th 978, 1041,
quoting Skelton v. Superior Court (1969) 1 Cal.3d 144, 150.) “In determining whether an
affidavit is supported by probable cause, the magistrate must make a ‘practical, common-
sense decision whether, given all the circumstances set forth in the affidavit . . . there is a
fair probability that contraband or evidence of a crime will be found in a particular place.’
(Illinois v. Gates [(1983)] 462 U.S. [213,] 238 [76 L.Ed. 2d 527].) The sufficiency of the
affidavit must be evaluated in light of the totality of the circumstances. (Ibid.)”
(Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278.)
A defendant may challenge the veracity of a facially valid search warrant affidavit
on the grounds it contains misrepresentations or omissions. (Franks v. Delaware (1978)
438 U.S. 154 [57 L.Ed.2d 667]; People v. Kurland (1980) 28 Cal.3d 376, 384.) “[A]n
affidavit may be insufficient when it omits facts adverse to the warrant application.”
(Kurland, at p. 384.) However, the affiant has a duty only to disclose facts that are
material, meaning “only those omissions which significantly distort[] the probable cause
analysis” will make an affidavit insufficient. (Id. at p. 385.) “On review under section
1538.5, facts must be deemed material . . . if, because of their inherent probative force,
6 The trial court additionally denied the motion to suppress as it related to
subsequent search warrants. However, these subsequent search warrants are not
challenged on appeal by defendant, nor are they germane to our analysis.
14
there is a substantial possibility they would have altered a reasonable magistrate’s
probable cause determination.” (Ibid.) A material omission will not render an affidavit
insufficient if the affiant reasonably, even if incorrectly, concluded the omitted fact was
immaterial. (Id. at pp. 388-389.) Thus, the defense bears the burden of showing “ ‘with
some specificity,’ ” why material facts were omitted and why those facts are material.
(Id. at p. 390.)
We review the denial of a motion to suppress evidence by deferring to the trial
court’s factual findings, but we exercise our independent judgment as to whether the
search was lawful on the basis of the found facts. (People v. Tully (2012) 54 Cal.4th 952,
979.) “Thus, while we ultimately exercise our independent judgment to determine the
constitutional propriety of a search or seizure, we do so within the context of historical
facts determined by the trial court. ‘As the finder of fact . . . 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.) We
review its factual findings ‘ “ ‘under the deferential substantial-evidence standard.’ ” ’
(People v. Ayala (2000) 23 Cal.4th 225, 255.) Accordingly, ‘[w]e view the evidence in a
light most favorable to the order denying the motion to suppress’ (People v.
Manderscheid (2002) 99 Cal.App.4th 355, 357), and ‘[a]ny conflicts in the evidence are
resolved in favor of the superior court ruling.’ (People v. Limon (1993) 17 Cal.App.4th
524, 529.) Moreover, the reviewing court ‘must accept the trial court’s resolution of
disputed facts and its assessment of credibility.’ (People v. Valenzuela (1994) 28
Cal.App.4th 817, 823.)” (Ibid.)
15
C.
Validity of the Search Warrants
The trial court correctly denied defendant’s motion to suppress the first three
search warrants. The application for the first search warrant was supported by text
messages from M. to Culbertson in which she reported that defendant had a gun on his
person even while M. was sending the text. M. worried that defendant would “flip out”
on them. And, M. expressed incredulity that the police officer had not found the gun
during the welfare check. Culbertson believed that M. was in danger. M.’s
contemporaneous observation of defendant’s possession of a gun while texting supported
the finding of probable cause to issue the first search warrant.
As the trial court found, M.’s texts supported a finding of probable cause even
though M. and Culbertson were “less than . . . stellar” sources of information. Despite
these witnesses’ backgrounds, the texts relied upon in the application for the warrant
were not sent for purposes of informing the police or to get defendant arrested. Instead,
the texts were communications between friends that were not intended for disclosure.
Indeed, Culbertson implored M. to delete the text messages. While the trial court
acknowledged the problems of M.’s and Culbertson’s credibility, the trial court was well
within its discretion to find that the text messages supported probable cause that
defendant had a gun in his possession at a time when he was prohibited from doing so.
Defendant argues that the affidavit for the first search warrant was misleading
because it did not properly inform the trial court of the extent of the unsuccessful search
incident to the welfare check on January 26, 2015. We are not persuaded. Corporal
Clair’s affidavit expressly disclosed that the sheriff’s department had conducted the
welfare check and determined the concern to be unfounded. More importantly, the first
search warrant was supported by probable cause in the form of M.’s contemporaneous
observation that defendant was carrying a firearm. The limited nature of the welfare
16
check did not undermine the probative nature of M.’s statements about the gun to
Culbertson. Regardless of the outcome of the welfare check, M.’s text messages
provided adequate basis for finding probable cause to issue the first search warrant.
In the return to the first search warrant, the police reported that they seized several
bullets, a gun-cleaning kit, Remington bore cleaner, and more than 400 grams of
marijuana. The return to the first warrant does not list the Davis Industries .380-caliber
handgun found in the Lincoln. As the affidavit to the application for the second search
warrant shows, the police recovered the .380-caliber handgun after defendant gave
consent to search his Lincoln. Defendant’s motion recounts that defendant articulated his
consent and contains a single sentence to the effect that he “also move[d] to suppress his
‘consent’ for officers to search” his Lincoln. However, defendant did not attempt to
show how his consent was invalid. Accordingly, defendant did not develop the
contention sufficiently to preserve it for review. (People v. Williams (1999) 20 Cal.4th
119, 130.)
Defendant’s challenges to the second and third search warrants depend on his
ability to establish that the first search warrant was invalid and that his consent to the
search of the Lincoln was not voluntary. As we have explained, however, probable cause
supports the issuance of the first search warrant and defendant has not preserved his
challenge to the voluntariness of his consent. The seizure of bullets, a gun-cleaning kit,
bore cleaner, and .380-caliber gun supported the issuance of the second and third search
warrants – especially after Whittle’s autopsy revealed that the murder weapon was a
.380-caliber firearm. In sum, we conclude that all three of the search warrants now
challenged by defendant were supported by probable cause. The trial court did not err in
denying defendant’s motion to suppress the evidence seized pursuant to the first three
search warrants.
17
II
Sentence Enhancements
Defendant argues that his two 1-year sentence enhancements imposed under
section 667.5, former subdivision (b), must be stricken based on the retroactive
application of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136). The
Attorney General agrees that the two sentence enhancements must be stricken. We
accept the concession and order the two 1-year enhancements stricken.
Defendant’s total prison sentence included two 1-year sentence enhancements that
the trial court imposed under section 667.5, former subdivision (b), after the court found
defendant had served a prior prison term. Defendant’s prior prison term was imposed for
corporal injury on a spouse or cohabitant. (§ 273.5, subd. (a).) Section 273.5 is not an
offense included among sexually violent offenses under Welfare and Institutions Code
section 6600, subdivision (b).
On October 8, 2019, the Governor signed Senate Bill 136 (2019-2020 Reg. Sess.),
effective January 1, 2020 (Stats. 2019, ch. 590, § 1). Senate Bill 136 amended section
667.5 to limit eligibility for the one-year prior prison term enhancement to those who
have served a prior prison sentence for a sexually violent offense. The amended
provision states, in pertinent part: “Except where subdivision (a) applies, where the new
offense is any felony for which a prison sentence or a sentence of imprisonment in a
county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in
addition and consecutive to any other sentence therefor, the court shall impose a one-year
term for each prior separate prison term for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no
additional term shall be imposed under this subdivision for any prison term served prior
to a period of five years in which the defendant remained free of both the commission of
an offense which results in a felony conviction, and prison custody or the imposition of a
18
term of jail custody imposed under subdivision (h) of Section 1170 or any felony
sentence that is not suspended.” (§ 667.5, subd. (b).)
Here, defendant’s prior prison term was not for a sexually violent offense as
defined in subdivision (b) of section 6600 of the Welfare and Institutions Code.
Defendant is therefore entitled to the ameliorative benefit of the statute because Senate
Bill 136 applies retroactively. (People v. Matthews (2020) 47 Cal.App.5th 857, 864-865;
People v. Lopez (2019) 42 Cal.App.5th 337, 341.) Consequently, defendant’s two prior
prison term enhancements under section 667.5, former subdivision (b), should be
stricken.
III
Restitution Fine for the Misdemeanor Conviction
Defendant contends the $150 restitution fine imposed for his misdemeanor
conviction must be stricken because its addition to his other restitution fine exceeds the
$10,000 statutory maximum for section 1202.4, subdivision (b). The Attorney General
agrees that the trial court lacked discretion to impose the $150 restitution fine for
defendant’s misdemeanor conviction. We order the $150 restitution fine stricken.
During sentencing, the trial court imposed a $10,000 restitution fine for
defendant’s felony convictions pursuant to section 1202.4, subdivision (b)(2). The trial
court also imposed a $150 restitution fine under section 1202.4 for his misdemeanor
possession of more than 28.5 grams of marijuana. The abstract of judgment reflects the
$10,000 restitution fine under section 1202.4, but not the $150 restitution fine.
Section 1202.4 provides in pertinent part: “(b) In every case where a person is
convicted of a crime, the court shall impose a separate and additional restitution fine,
unless it finds compelling and extraordinary reasons for not doing so and states those
reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense. If the person is convicted of
19
a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten
thousand dollars ($10,000). If the person is convicted of a misdemeanor, the fine shall
not be less than one hundred fifty dollars ($150) and not more than one thousand dollars
($1,000).”
Section 1202.4 limits the restitution fine to $10,000 in a case involving at least one
felony conviction. “Where a defendant has been convicted of several felony offenses in
one proceeding, a restitution fine is not imposed on ‘each count’ but instead one fine is
imposed taking into account all the offenses in the proceeding; this proposition is based
on the language of section 1202.4, subdivision (b) which states that in ‘every case where
a person is convicted of a crime, the court shall impose a separate and additional
restitution fine,’ and then sets forth a formula for calculating the total amount. (Italics
added.)” (People v. Holmes (2007) 153 Cal.App.4th 539, 547.) When a defendant is
convicted of a felony and misdemeanor in the same case, the total restitution fine may not
exceed the statutory maximum. (Id. at p. 548.)
Here, the $150 restitution fine for the misdemeanor conviction caused the total
restitution fine to exceed the statutory maximum of $10,000. The statutory maximum
may not be exceeded regardless of the number of victims or counts of conviction.
(People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.) Accordingly, we modify the
judgment to reduce the restitution fine imposed under section 1204, subdivision (b), to a
total of $10,000. (Blackburn, at p. 1534.)
IV
People v. Dueñas
Defendant argues the trial court violated due process principles when it imposed a
court security fee under section 1465.8, a criminal conviction assessment under
Government Code section 70373, and the restitution fine under section 1202.4,
subdivision (b) – without first holding a hearing to determine defendant’s ability to pay
20
these fines. The Attorney General responds that (1) defendant has not preserved the issue
for lack of timely objection; (2) on the merits, the proper analytic lens through which we
should consider defendant’s challenge is the excessive fines clause of the Eighth
Amendment, and (3) the imposition of fines did not violate either the excessive fines
clause or due process principles. We reject the due process challenge.7
Defendant’s due process claim hinges on the analysis in Dueñas, supra,
30 Cal.App.5th 1157, finding an ability to pay hearing is required before imposing fines
and fees. We are not persuaded by the analysis is in Dueñas. We note that the California
Supreme Court is currently reviewing this issue in People v. Kopp (2019) 38 Cal.App.5th
47, review granted November 13, 2019, S257844. Kopp rejected the due process analysis
in Dueñas as it related to the restitution fine. (Kopp, at p. 96.)
We join several other courts in concluding that the principles of due process do not
require determination of a defendant’s present ability to pay before imposing the fines
and assessments at issue in Dueñas and in this proceeding. (People v. Cota (2020)
45 Cal.App.5th 786, 795; People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v.
Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946; People
v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th
917, 928.)
DISPOSITION
The two 1-year sentence enhancements imposed under section 667.5, former
subdivision (b), are stricken. The restitution fine imposed under section 1202.4,
subdivision (b), is reduced to a total fine of $10,000. In all other respects, the judgment
7 Our conclusion that defendant’s due process challenge lacks merit obviates the
need to consider whether the issue has been properly preserved. And, because defendant
declines the Attorney General’s invitation to reframe his argument as an Eighth
Amendment claim, we do not consider the argument that his restitution fine may held
unconstitutional under the Eighth Amendment.
21
is affirmed. The clerk of the superior court is directed to prepare an amended abstract of
judgment and to forward it to the Department of Corrections and Rehabilitation.
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
MURRAY, J.
22