People v. Sims, D077024

• Court: California Court of Appeals
• Writing for the Court: McCONNELL, P. J.
• Citation: 273 Cal.Rptr.3d 792,59 Cal.App.5th 943
• Decision Date: 12 January 2021
• Docket Number: D077024
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tony Ramon SIMS, Defendant and Appellant.

59 Cal.App.5th 943
273 Cal.Rptr.3d 792

The PEOPLE, Plaintiff and Respondent,
v.
Tony Ramon SIMS, Defendant and Appellant.

D077024

Court of Appeal, Fourth District, Division 1, California.

Filed January 12, 2021

Justin Behravesh, Kings Beach, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

McCONNELL, P. J.

273 Cal.Rptr.3d 796

59 Cal.App.5th 946

I

INTRODUCTION

Defendant Tony Ramon Sims appeals a judgment of conviction entered after he pleaded guilty to two counts of possession of a firearm by a felon ( Pen. Code, § 29800, subd. (a)(1) ; counts 1 and 2)¹ and one count of unlawful

59 Cal.App.5th 947

possession of ammunition (§ 30305, subd. (a)(1)). He contends the trial court erred in denying a motion to suppress incriminating evidence obtained during a warrantless search of his vehicle. We conclude the court properly denied the motion to suppress because the search of the defendant's vehicle was valid under the automobile exception to the warrant requirement and, in the alternative, as a search incident to arrest.

The defendant also argues he is entitled to seek a reduction of his three-year probation term under recently-enacted Assembly Bill No. 1950 (Stats. 2020, ch. 328, § 2). Effective January 1, 2021, Assembly Bill No. 1950 amended section 1203.1 to limit the maximum probation term a trial court is authorized to impose for most felony offenses to two years. Relying on In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ), the defendant asserts Assembly Bill No. 1950's limitation on the maximum duration of felony probation terms constitutes an ameliorative change to the criminal law that applies retroactively to cases that were not reduced to final judgment as of the new law's effective date. We agree.

Therefore, we affirm the judgment in part as to the defendant's conviction, reverse the judgment in part as to the defendant's sentence, and remand the matter for resentencing.

II

BACKGROUND

A

Vehicle Search

The following facts are drawn from the preliminary hearing. (See People v. Turner (2017) 13 Cal.App.5th 397, 400, 220 Cal.Rptr.3d 449.)

Shortly before 3:00 a.m., two police officers entered a parking lot in downtown San Diego. The officers were patrolling the area because the bars in downtown San Diego closed at 2:00 a.m., exiting patrons were often involved in criminal offenses, and the parking lot was known as a place where people went to drink and loiter after they left the bars. According to one of the officers, there were "people congregat[ing] ... [and] partying" in the parking lot, many of whom "scattered" when the officers entered it.

The officers approached a parked vehicle in the parking lot. The defendant was seated in the front passenger seat and appeared to be passed out. The keys to

59 Cal.App.5th 948

the vehicle were in the ignition when the officers approached the vehicle. The officers engaged the defendant in conversation and detected the odor of alcohol emanating from the defendant. They observed that the defendant had bloodshot eyes, slurred his speech, fumbled for his wallet, and appeared as though he was going to vomit. Based on these observations, the officers immediately believed the defendant was intoxicated and in violation of section 85.10 of the San Diego Municipal Code.²

273 Cal.Rptr.3d 797

At the officers' request, the defendant provided his name. One officer used his cell phone to search the defendant's name on a criminal records database. The search yielded a record for a person named Tony Sims. The person was on probation and, as a condition of probation, he had executed a Fourth Amendment waiver. The database record included the person's birthdate, height, and weight, as well as a photograph of the person that was approximately one square inch in size when displayed on the officer's cell phone.

The officer asked the defendant whether his birthdate was the birthdate indicated on the database record. The defendant replied, "Yeah." The officer then asked the defendant whether he had been "checking in," apparently to determine whether he was reporting to a probation officer. The defendant replied, "Yeah." Based on these responses and the information contained in the database record, the officer believed the defendant was the Tony Sims whose information was recorded on the database record and, therefore, that the defendant had executed a Fourth Amendment waiver.

The officer asked the defendant to exit the vehicle for a vehicle search. However, the defendant was paralyzed from the waist down. Because the defendant was unable to exit the vehicle without assistance, the officer began to search the vehicle while the defendant remained seated in the front passenger seat. During the ensuing search, the officer recovered a loaded semi-automatic handgun from the rear passenger floorboard. The defendant was then handcuffed and removed from the vehicle, after which the officer continued to search the vehicle. The officer seized a second loaded semi-automatic handgun from underneath the front passenger seat and handgun ammunition from the rear driver side floorboard.

The police later determined the defendant was not the person whose record was produced during the criminal records database search and he had not executed a Fourth Amendment waiver.

59 Cal.App.5th 949

B

Procedural Background

The defendant was charged by information with two counts of possession of a firearm by a felon and one count of unlawful possession of ammunition.

The defendant filed a pretrial motion to suppress all evidence obtained during the search of his vehicle, including the firearms and ammunition. He asserted the warrantless search violated his Fourth Amendment right to be free from unreasonable searches and seizures. The trial court considered and denied the suppression motion at the preliminary hearing. It found the evidence obtained during the search was admissible for three independent reasons: (1) the search was permissible under the automobile exception to the warrant requirement because there was probable cause that evidence of the defendant's public intoxication would be found in the vehicle; (2) the search was permissible as a search incident to arrest; and (3) the evidence was admissible under the good faith exception to the exclusionary rule.³

Thereafter, the defendant filed a motion to dismiss the information under section 995, which the trial court denied. The court

273 Cal.Rptr.3d 798

determined the search of the vehicle was permissible because the officers had probable cause to arrest the defendant and search the vehicle based on the defendant's state of intoxication. It found, in the alternative, the evidence was admissible under the good faith exception to the exclusionary rule.

Over the objection of the prosecutor, the trial court then offered the defendant an indicated sentence of three years of probation. The defendant pleaded guilty to the face of the information and, per the court's indicated sentence, was placed on probation for three years.

III

DISCUSSION

A

Warrantless Search

The defendant appeals the judgment on grounds that the warrantless search of his vehicle violated his Fourth Amendment rights. Based on the alleged constitutional

59 Cal.App.5th 950

violation, the defendant contends the trial court erred in denying his motion to suppress the evidence obtained during the warrantless search of his vehicle.

1

Legal Principles

The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. ( U.S. Const., 4th Amend.) "Warrantless searches are presumed to be unreasonable, therefore illegal, under the Fourth Amendment, subject only to a few carefully delineated exceptions." ( People v. Vasquez (1983) 138 Cal.App.3d 995, 1000, 188 Cal.Rptr. 417.) As discussed more fully below, two exceptions are relevant for purposes of this appeal—the automobile exception and the exception for searches incident to arrest.

In reviewing a trial court's determination on a motion to suppress evidence, "we rely on the trial court's express and implied factual findings, provided they are supported by substantial evidence, to independently determine whether the search was constitutional. [Citation.] ‘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...