P. v. Hickok
Filed 1/3/13 P.
v. Hickok 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
(Sacramento)
----
THE
PEOPLE,
Plaintiff and
Respondent,
v.
MICHELE
LYNN HICKOK,
Defendant and
Appellant.
C070460
(Super. Ct. No. 11F01301)
Defendant
Michele Lynn Hickok pleaded no contest to possession
of methamphetamine. She now contends
the trial court erred in (1) denying her motion to suppress evidence, and (2)
imposing a $59 jail classification fee and a $287 jail booking fee without
determining defendant’s ability to pay them.
We
conclude (1) the trial court did not err in denying defendant’s motion to
suppress because she consented to the warrantless search of her bedroom; and
(2) we will remand the matter to permit a determination regarding defendant’s
ability to pay the booking and classification fees.
BACKGROUND
We
summarize the facts adduced at the hearing on defendant’s motion to suppress,
but we will reference additional facts in the discussion as relevant to
defendant’s contentions.
Officer
Nick Echeverria received information from a citizen that there was concern
regarding the welfare of defendant’s children.
The information included accusations that defendant was using drugs and
selling them from her residence.
The
next day at 1:00 a.m., Officer Echeverria went to defendant’s residence in full uniform
with Officer Valenzuela and trainee Officer Lemoine. Officer Echeverria knocked on defendant’s
front door. When defendant opened the
door, Officer Echeverria asked to come inside and conduct a welfare check on
the children. Defendant gave her
consent, but asked Officer Echeverria to be quiet because the children were
sleeping. All three officers entered the
home with no objection from defendant.
Officer
Echeverria asked defendant if anyone else was present in the home. Defendant replied that someone was in her bedroom. Officer Echeverria requested defendant’s
permission to locate that person and to confirm there was no one else in the
residence. Defendant gave him permission
and Officer Echeverria performed a protective sweep of the home. Officer Echeverria contacted other people in
the residence and asked them to go in the living room.
The
officers conducted the welfare check.
The children were sleeping in their respective beds, the apartment was
appropriately heated, and there was food in the refrigerator.
Officer
Echeverria told defendant he received information that she was using drugs and
selling drugs from the home. Defendant
denied selling drugs, but admitted there was methamphetamine in her bedroom. She told Officer Echeverria he would find
methamphetamine and some pipes in a pink Hello Kitty box under her bed. Officer Echeverria asked defendant if he
could look under her bed and retrieve those items, and defendant said that he
could.
Officer
Echeverria looked under defendant’s bed and found the pink Hello Kitty
box. Inside the box he found “[l]ots of
empty plastic baggies,†four baggies with an “off-white substance†inside, and
four glass pipes commonly used for smoking methamphetamine. The off-white substance was later determined
to be methamphetamine with a total weight of .43 grams.
Defendant
made a motion to suppress the drug
evidence (Pen. Code, § 1538.5) and the People opposed the motion. At the hearing on the motion, defendant
testified that she was in her bedroom when she heard a knock at the front
door. The officers told her they were
there to perform a welfare check on the children. Defendant said she only invited Officer
Echeverria into the residence, but the other two officers also entered and
began looking around the house without permission.
According
to defendant, one of the officers confined her to the kitchen, another officer
confined the other adults to the front room, and a third officer “ransackedâ€
her bedroom. After her bedroom was
ransacked, one of the officers told her he wanted to search the house for
drugs. Defendant testified the officer
also told her that if she did not allow them to search the house, he would
“lock this house down and make [her] life a living hell.†She denied giving any of the officers consent
to search her bedroom, and she denied telling Officer Echeverria she used
methamphetamine.
The
trial court noted that the officers searched the residence without a warrant
and that the issue was whether consent had been given. The trial court said it had to make a
credibility finding regarding Officer Echeverria’s testimony and defendant’s
testimony. The trial court found in favor
of Officer Echeverria’s credibility and denied defendant’s motion to suppress. Defendant subsequently renewed her motion to
suppress pursuant to Penal Code section 995, but the trial court denied that
motion as well.
Defendant
pleaded no contest to possession of methamphetamine. (Health & Saf. Code, § 11377, subd.
(a).) Consistent with the plea
agreement, the trial court sentenced her to five years of formal probation with
90 days in county jail, but stayed the jail sentence, referred defendant to
“Proposition 36 court†and dismissed the remaining charge.
In
addition, the trial court awarded defendant one day of presentence custody
credit and imposed various fines and fees, including a $59 jail classification
fee (Gov. Code, § 29550.2) and a $287 jail booking fee (Gov. Code,
§ 29550.2). Defendant’s trial
counsel represented to the trial court that defendant is on Social Security and
does not have the ability to pay those fees.
Trial counsel requested an indigent finding on defendant’s ability to
pay unless a Penal Code section 987.5 hearing was scheduled. The trial court responded: “She can file the appropriate hearing. I find that [p]eople that are on Social
Security do have funds, and they can pay.
So she would have to request the appropriate hearing if the fines and
fees are imposed.†When trial counsel
asked again if defendant could get a fee waiver based on her low income, the
trial court replied, “[s]he can fill out the form and request the appropriate
fee waiver at the appropriate time.â€
DISCUSSION
I
Defendant
contends the trial court erred in denying her motion to suppress. In reviewing a ruling on a
record in the light most favorable to the trial court’s ruling. (People
v. Miranda (1993) 17 Cal.App.4th 917, 922.) We defer to the trial court’s factual
findings, whether express or implied, when supported by substantial evidence
and we independently determine whether the facts of the challenged search
and/or seizure violated defendant’s Fourth Amendment rights. (People
v. Lomax (2010) 49 Cal.4th 530, 563; People v. Ferguson (2003) 109 Cal.App.4th 367, 372.)
Defendant
claims (a) her consent was invalid because the officers gained entry to her
residence through trickery and subterfuge, (b) her consent did not authorize
the search and seizure of the drugs because the scope of her consent was
limited, (c) her consent was invalid because it was the result of police
coercion, and (d) her consent was invalid because she was
A
Defendant
argues her consent was invalid because the officers gained entry to her
residence through trickery, subterfuge and a ruse. She claims Officer Echeverria did not
initially tell her the true purpose of the visit -- that defendant had been
accused of using drugs and selling them from the residence.
Although
Officer Echeverria did not initially inform defendant that she had been accused
of using and selling drugs, the record does not support her assertion that the
officers tricked her. Officer Echeverria
asked defendant if he could enter and check on the welfare of the
children. Defendant consented. Based on that consent, Officer Echeverria
entered and conducted a welfare check.
Once the check was completed, Officer Echeverria informed defendant that
he received information that she was using and selling drugs. Defendant told him she had methamphetamine in
her bedroom and gave Officer Echeverria permission to find and retrieve the
drugs. The record indicates that Officer
Echeverria asked defendant clear, straightforward questions and that she
responded with clear, unambiguous consent.
The
cases cited by defendant are inapposite.
Cases that invalidate consent when the consent was obtained by ruse or
trick all involve some “positive†act of misrepresentation on the part of the
officers. (Mann v. Superior Court (1970) 3 Cal.3d 1, 9.)
For
example, in People v. Reeves (1964)
61 Cal.2d 268, police officers arranged for a hotel manager to call
defendant in his hotel room and to falsely inform defendant that there was a
registered letter for him that he should come and pick up at the front
desk. (Id. at p. 271.) The
defendant said he would be down after he got dressed and the officers positioned
themselves outside his door. (
When the defendant opened the door to go to the front desk, one of the
officers saw a marijuana cigarette inside the room. (Ibid.) The officers entered the defendant’s hotel
room without his consent, searched the room and arrested the defendant. (Id.
at pp. 271-273.) The California
Supreme Court held that on such facts the officers could not rely on
information obtained by inducing the defendant to open the door by ruse or
subterfuge. (Id. at p. 273.)
In
People v. Lathrop (1979)
99 Cal.App.3d 967, an undercover police officer knocked on the defendant’s
door. (Id. at p. 970.) He told
the defendant he was moving in next door and asked to use the defendant’s
phone. (Id. at pp. 970-971.)
The defendant invited the undercover officer inside the residence. Once inside, the officer saw marijuana,
cocaine, and drug paraphernalia. The
officer bought drugs from the defendant twice before obtaining an arrest
warrant. (Id. at p. 971.) The
appellate court held that the initial entry was illegal because it was obtained
by trickery, ruse, or subterfuge, and that the illegal entry tainted the
subsequent arrest. (Id. at p. 972-973.)
And
in People v. Superior Court (Kenner)
(1977) 73 Cal.App.3d 65, police appeared at defendant’s door and asked his
brother if they could enter the residence to “talk†to the defendant. (Id.
at p. 68.) The brother consented to
the entry, but police then arrested the defendant without any
conversation. (Ibid.) The appellate court said
the record made clear that the officers had no intention of talking to the
defendant, and hence the brother’s consent did not authorize the arrest. (Id.
at p. 69.) As the court explained,
“[a] person may willingly consent to admit police officers for the purpose of
discussion, with the opportunity, thus suggested, of explaining away any
suspicions, but not be willing to permit a warrantless and nonemergent entry
that affords him no right of explanation or justification.†(Ibid.) Thus, the court did not find the officers
entered by trickery, ruse, or subterfuge, but that the arrest exceeded the
scope of the consent, which was limited to entering the home to “talk†to the
defendant. (Ibid.)
Unlike
the foregoing cases, there is no evidence that the officers in this case
concealed their identities, made false statements or tricked defendant into
giving consent. Under the circumstances,
her consent was valid.
B
Defendant
next argues her consent did not authorize the search and seizure of the drugs
because she never gave Officer Echeverria consent to search her bedroom for
drugs. She claims the scope of her
consent was limited to Officer Echeverria and to the welfare check of the
children.
Officer
Echeverria’s inquiry regarding drugs in the home did not exceed the scope of
defendant’s consent because the welfare check was based on the concern that
defendant was using and selling drugs in the children’s living
environment. The welfare check included
an inquiry into whether defendant was exposing her children to drugs, drug use
or drug sales.
Nonetheless,
the ruling on the motion to suppress hinges on whether defendant gave Officer
Echeverria her consent to search for drugs in the bedroom. She claims on appeal, just as she did in her
testimony at the suppression hearing, that she did not give consent to search
her bedroom. But the trial court found
that Officer Echeverria was more credible.
Officer Echeverria testified that defendant consented to the initial
entry, did not object to the presence of all three officers, consented to the
welfare check of the children, and consented to the search in her room. We accept Officer Echeverria’s version of
events because we do not substitute our judgment for the credibility
determinations of the trial court. (
81 Cal.App.4th 1, 9.)
C
Defendant
claims her consent was invalid because it was the result of police
coercion. She asserts that two of the
officers entered her home uninvited and one of the officers was already
“rummaging around in her room†when Officer Echeverria asked if there were
drugs in the home. Again, however, we
cannot accept defendant’s contention because it relies on a version of events
that the trial court did not find credible.
D
Defendant
further contends her consent was invalid because she was unlawfully detained in
her home. But defendant did not make
this argument in the trial court, and she cannot assert it for the first time
on appeal. (See Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640 [legal
theories in support of or in opposition to a motion to suppress cannot be
raised for the first time on appeal].)
II
Defendant
contends the trial court erred in imposing a $59 jail classification fee and a
$287 jail booking fee without determining her ability to pay them. The Attorney General agrees and requests
remand to the trial court on this issue.
“[A]
prerequisite to the imposition of a booking fee . . . is a finding,
whether express or implied, of the defendant’s ability to pay.†(People
v. Pacheco (2010) 187 Cal.App.4th 1392, 1400.) Such a finding will be upheld on appeal if it
is supported by substantial evidence. (
25 Cal.App.4th 62, 70-71 (Phillips).)
Defendant
pleaded no contest to possession of methamphetamine, waived referral to the
probation department for a presentence report, and requested immediate
sentencing. Her trial counsel noted that
defendant received Social Security, had an inability to pay the booking and
classification fees, and requested an indigent finding. The trial court said, “I find that [p]eople
that are on Social Security do have funds, and they can pay.â€
Even
if we were to construe the trial court’s statement as a finding that defendant
has the ability to pay the booking and classification fees, such a finding
would not be supported by substantial evidence (Phillips, supra,
25 Cal.App.4th at pp. 70-71) because there is no probation report and
no evidence regarding defendant’s ability to pay the fees. Under the circumstances, we will strike the
booking and classification fees and remand the matter to the trial court for a
determination regarding defendant’s ability to pay those fees.
DISPOSITION
The
$59 jail classification fee and the $287 jail booking fee are stricken from the
judgment. The judgment is otherwise
affirmed. The matter is remanded to the
trial court for a determination regarding defendant’s ability to pay the jail
classification fee and the jail booking fee.
MAURO , J.
We concur:
BLEASE , Acting P. J.
HULL , J.
