P. v. Smith

Filed 5/31/19 P. v. Smith CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SKYLER DAMON SMITH,
Defendant and Appellant.
D075372
(Super. Ct. Nos. INF1402881,
NF1600417)
APPEAL from a judgment of the Superior Court of Riverside County, Jeffrey L.
Gunther, Judge. Judgment affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for the Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Laura
Baggett, Deputy Attorneys General, for Plaintiff and Respondent.

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In December 2014 (case No. INF1402881, the first case) the Riverside County
District Attorney filed an information charging Skyler Damon Smith with possessing
heroin (Health & Saf. Code, § 11350, subd. (a); count 1), possessing methamphetamine
(Health & Saf. Code, § 11377, subd. (a); count 2), possessing methamphetamine while
armed with a loaded firearm (Health & Saf. Code, § 11370.1; count 3), being armed with
an assault weapon (Pen. Code, § 30605, subd. (a); count 4), and being a felon in
possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 5). The trial court
denied Smith's suppression motion relating to a search of his casita.
In December 2016 (case No. INF1600417, the second case) Smith was charged
with possessing methamphetamine (Health & Saf. Code, § 11378; count 1), sale or
transport of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 2),
possessing methamphetamine while armed with a loaded firearm (Health & Saf. Code,
§ 11370.1; count 3), being a felon in possession of a firearm (Pen. Code, § 29800, subd.
(a)(1); count 4), and being a felon in possession of ammunition (Pen. Code,1 § 30305,
subd. (a); count 5).
The trial court granted the People's motion to consolidate the cases, and the first
amended information included all 10 counts. The People further alleged that Smith
suffered two prison priors (§§ 667.5, subd. (b)). During trial, the court denied a second
suppression motion concerning a search of Smith's motorcycle in the second case.
A jury found Smith guilty of all 10 counts and the court found true the two prison
priors. The trial court sentenced Smith to 10 years eight months in prison. Smith
1 Undesignated statutory references are to Penal Code.

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appeals, asserting the court erred in denying his suppression motions. We reject Smith's
arguments and affirm the judgment.
In a supplemental brief, Smith relies on People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas) to argue that the trial court could not legally impose a $10,000 restitution
fine and a $300 court facilities assessment without first determining his ability to pay. He
requests that we vacate the assessment and stay the restitution fine until the People prove
he has the ability to pay. We reject his arguments.
DISCUSSION
I. GENERAL LEGAL PRINCIPLES
The Fourth Amendment to the United States Constitution prohibits the
government from conducting unreasonable searches and seizures of private property.
(U.S. Const., 4th Amend.; Arizona v. Gant (2009) 556 U.S. 332, 338; People v. Macabeo
(2016) 1 Cal.5th 1206, 1213.) Warrantless searches "are per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and well-delineated
exceptions." (Katz v. United States (1967) 389 U.S. 347, 357, fns. omitted.) As relevant
here, well-delineated exceptions to the warrant requirement include exigent
circumstances, inventory searches, and plain-view searches. (68 Am.Jur.2d (2010)
Searches and Seizures § 114, p. 237.)
A defendant may move to suppress evidence on the ground that "[t]he search or
seizure without a warrant was unreasonable." (§ 1538.5, subd. (a)(1)(A).) "A
warrantless search is presumptively unreasonable, and the prosecution bears the burden
of demonstrating a legal justification for the search." (People v. Simon (2016) 1 Cal.5th

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98, 120.) The prosecution must establish by a preponderance of the evidence the facts
justifying a warrantless search. (People v. Johnson (2006) 38 Cal.4th 717, 729.) In
reviewing a court's ruling on a suppression motion, "[w]e defer to the trial court's factual
findings, express or implied, where supported by substantial evidence. In determining
whether, on the facts so found, the search or seizure was reasonable under the Fourth
Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11
Cal.4th 354, 362 (Glaser).)
II. FIRST CASE: CASITA SEARCH
A. Legal Principles
" '[L]aw enforcement officers may enter a home without a warrant to render
emergency assistance to an injured occupant or to protect an occupant from imminent
injury.' " (People v. Troyer (2011) 51 Cal.4th 599, 602 (Troyer).) The emergency aid
exception to the warrant requirement turns on the existence of an objectively reasonable
basis for believing that a person within the house requires immediate aid, not the
subjective intent of the officers. (Id. at p. 605.)
" ' " 'There is no ready litmus test for determining whether such circumstances
exist, and in each case the claim of an extraordinary situation must be measured by the
facts known to the officers.' " ' " (Troyer, supra, 51 Cal.4th at p. 606.) As one court
explained, " 'the business of police[] . . . is to act, not to speculate or meditate on whether
the report is correct. People could well die in emergencies if police tried to act with the
calm deliberation associated with the judicial process.' " (Ibid., italics omitted.) "The
possibility that immediate police action will prevent injury or death outweighs the affront

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to privacy when police enter the home under the reasonable but mistaken belief that an
emergency exists." (Ibid.) "When officers act in their properly circumscribed caretaking
capacity, we will not penalize the People by suppressing evidence of crime they discover
in the process." (People v. Ray (1999) 21 Cal.4th 464, 479 (Ray).)
B. Background Facts2
An officer with the Palm Springs Police Department and his partner were
dispatched to a home following a call from a concerned citizen. The citizen reported that
an unoccupied running car had been in the driveway of a residence for about 30 minutes.
The officer met the citizen by the car and noted that the unoccupied car was running, the
windows were up and foggy, the lights were on, and determined that a car rental
company owned the vehicle. The officer became concerned that a person inside the
home might be in distress or that criminal activity was afoot. The officer testified that his
duties include welfare checks and that he had experienced a prior incident with similar
circumstances where a person had been suffering from a diabetic coma. The officer
heard no noise inside the house. The officer rang the doorbell several times and could
hear the doorbell ringing inside the home. The officer or his partner also knocked on the
door. The officers waited about 30 to 60 seconds for someone to answer the door, but
received no response. The lack of any response concerned the officer.
The officers left the front door and walked the exterior of the residence to
determine if an occupant was injured or crime was afoot. About 10 feet away from the
2 The facts are based on the testimony given in connection with the suppression
motion.

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front door and under the same roofline the officer found a second door that appeared to
be "an interior-type door" which led the officer to believe that the door was "part of and
open to the main residence." The officer did not knock on the door, but moved the
handle. The officer did not knock because he had no reason to believe doing so would
alert anyone inside the residence. The officer did not know the interior layout of the
house and did not know that the door led to a casita that lacked access to the front door.
Finding the door unlocked, the officer opened the door and announced "police."
As the door opened, the officer saw an individual, who he knew to be a felon and not a
resident of this home, lying on the floor looking back at him. This caused the officer to
believe that crime was afoot.
After a "factually intense" analysis, the trial court denied the suppression motion.
The court found the officer's testimony to be "very sincere, very honest" regarding the
description of the scene and the officer's concerns. The court found that the officers
waited a substantial period of time for a response after they rang the doorbell and
knocked. The court concluded that the officer's failure to knock on the second door
before entering was not unreasonable given "this was a one-roof situation. It wasn't the
separate casita, which we see in this community on many occasion[s]. This was a
contiguous part of the entirety of one structure . . . ."
During trial, the officer testified that after stepping into the room he saw Smith,
another individual who he knew had a felony conviction, drug paraphernalia and what
appeared to be methamphetamine in plain view. He later learned that Smith and the other
individual were on probation and subject to search conditions.

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C. Analysis
Smith contends that no objectively reasonable evidence of a crime or medical
emergency existed when the officer, without knocking, opened the door to the casita, a
residence separate from the main structure. We disagree.
"As the finder of fact in a proceeding to suppress evidence [citation], 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.) Here, the trial court made several factual findings that: (1) the officer testified
honestly regarding the description of the scene and the officer's concerns; (2) the officers
waited a substantial period of time for a response after ringing the doorbell and knocking
at the front door; and (3) the officer did not act unreasonably when he failed to knock on
the second door before entering because the casita was under the same roof as the main
structure. As a preliminary matter, Smith fails to argue that substantial evidence does not
support these factual findings and any such argument is forfeited. (People v. Roscoe
(2008) 169 Cal.App.4th 829, 840 [issues not raised in the opening brief are forfeited].)
Accordingly, we defer to the court's express and implied factual findings and
independently determine whether, on those facts, the search was reasonable. (Glaser,
supra, 11 Cal.4th at p. 362.)
First, an unoccupied vehicle left running in a residential driveway with its lights
on for 30 minutes warranted a police investigation. These facts, standing alone,
prompted a concerned citizen to contact the police and wait for the police to arrive. It

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was objectively reasonable for the responding officer to investigate whether a person
inside the home was in distress or criminal activity was afoot. The officer explained that
his duties included welfare checks and that during a prior incident with similar
circumstances a person had been suffering from a diabetic coma.
The officer found the front door locked and got no response after ringing the front
doorbell and knocking on the door. These facts reasonably concerned the officer and
justified further investigation because the lack of a response did not rule out a possible
emergency involving an individual incapable of making any sound or a burglary. The
officer thus acted reasonably when he checked a second door, under the same roofline,
about 10 feet away from the front door. We agree with the trial court that the officer's
failure to knock on the second door before opening the unsecured door and announcing
"police" was not unreasonable considering the totality of the circumstances. Entering this
second door was the only practical means to determine whether the property needed
protection or someone required medical aid.
"Under the community caretaking exception, circumstances short of a perceived
emergency may justify a warrantless entry, including the protection of property, as 'where
the police reasonably believe that the premises have recently been or are being
burglarized.' [Citation.] 'Although the case law attaches slightly greater weight to the
protection of persons from harm than to the protection of property from theft, many of the
cases involving possible burglaries or breakings and enterings stress the dual community
caretaking purpose of protecting both. [Citations.]' [Citation.] Of necessity, officers
may enter premises to resolve the situation and take further action if they discover a

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burglary has occurred or their assistance is otherwise required." (Ray, supra, 21 Cal.4th
at p. 473.)
We conclude that, in the particular circumstances of this case, the trial court
properly denied Smith's suppression motion because the officer had an objectively
reasonable basis for believing that a medical emergency might exist or that crime was
afoot.
II. SECOND CASE: MOTORCYCLE SEARCH
A. Legal Principles
Vehicle inventory searches are "a well-recognized exception to the warrant
requirement of the Fourth Amendment." (Colorado v. Bertine (1987) 479 U.S. 367, 371.)
An inventory search may extend to the car's trunk, glove compartment, and closed
containers located within the car. (Id. at p. 375.) "A police officer may be allowed
sufficient latitude to determine whether a particular container should or should not be
opened in light of the nature of the search and characteristics of the container itself."
(Florida v. Wells (1990) 495 U.S. 1, 4.)
Inventory searches are typically performed by police when vehicles are
impounded "[i]n the interests of public safety and as part of . . . 'community caretaking
functions.' " (South Dakota v. Opperman (1976) 428 U.S. 364, 368 (Opperman).)
"When vehicles are impounded, local police departments generally follow a routine
practice of securing and inventorying the automobiles' contents. These procedures
developed in response to three distinct needs: the protection of the owner's property
while it remains in police custody, [citation]; the protection of the police against claims

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or disputes over lost or stolen property, [citation]; and the protection of the police from
potential danger." (Id. at p. 369.) "Whether 'impoundment is warranted under this
community caretaking doctrine depends on the location of the vehicle and the police
officers' duty to prevent it from creating a hazard to other drivers or being a target for
vandalism or theft.' " (People v. Williams (2006) 145 Cal.App.4th 756, 761 (Williams).)
To protect Fourth Amendment interests, inventory searches, and in particular the
opening of closed containers, must occur pursuant to "standardized criteria" or an
"established routine." (Florida v. Wells, supra, 495 U.S. at p. 4; Williams, supra, 145
Cal.App.4th at p. 761.) The requirement of guidelines for police discretion insures that
inventory searches are not used as "a ruse for a general rummaging in order to discover
incriminating evidence." (Florida v. Wells, at p. 4; Williams, at p. 761.)
B. Background Facts
During trial, Smith moved to suppress any evidence seized after police searched
his motorcycle. Outside the jury's presence, the trial court heard testimony from an
officer with the traffic division of the Palm Springs Police Department (the traffic
investigator) who responded to a traffic collision involving a motorcycle. The
motorcycle was blocking the roadway and needed to be towed away. Smith, the
motorcycle driver, had already been transported to the hospital when the traffic
investigator arrived at the scene.
The traffic investigator needed to impound the motorcycle as part of the traffic
collision investigation. The impound process included completing a California Highway
Patrol 180 form documenting the towing and inventory search of the vehicle. An

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inventory search is normal procedure for a towed vehicle. The inventory search included
determining the existence of valuable property, contraband, weapons, or any other items
that could be dangerous to individuals with access to a tow yard where the vehicle may
be left unsecured. The traffic investigator stated that the motorcycle would be taken to a
police storage yard.
Before conducting the inventory search, the traffic investigator learned that
hospital personnel had found a firearm on Smith. The traffic investigator performed a
visual check of the motorcycle and noticed a single storage compartment underneath the
seat. The storage compartment was large enough to house a handgun or ammunition.
The officer unlocked the compartment using the ignition key. The compartment
contained a black zippered bag. The black bag contained a wallet, sunglasses, and a
white plastic baggie with a substance the officer believed to be methamphetamine.
The trial court found that the contents of the motorcycle needed to be inventoried
to determine whether the motorcycle contained anything valuable. It rejected the defense
argument that the traffic investigator was looking for contraband and not performing a
required inventory search. Based on these findings, the court denied the suppression
motion, concluding that the traffic investigator had conducted a lawful inventory search.
C. Analysis
Smith concedes that the police properly impounded his motorcycle as part of their
community caretaking function. He contends that opening the locked compartment under
the passenger seat of his motorcycle was unnecessary and a pretext for an investigation of
criminal activity because the traffic investigator stated that the motorcycle would be

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taken to a police storage yard. Accordingly, he claims the trial court erred when it denied
the motion and failed to exclude the methamphetamine recovered during the search. We
disagree.
Police inventory the contents of an impounded vehicle to document and secure
valuable items and thus protect the police against claims or disputes regarding lost or
stolen property. (Opperman, supra, 428 U.S. at p. 369.) Here, the traffic investigator
testified that an inventory search to record the existence of valuable items is normal
procedure for a towed vehicle and that such searches are documented by filling out a
standard form. The traffic investigator testified that his search was consistent with police
procedures, including a visual inspection and unlocking a storage compartment. These
facts amply support the trial court's findings that the traffic investigator performed a
required inventory search, that the search was not a pretext to look for contraband, and
not performing the search would have resulted in uncertainty whether the motorcycle
contained anything valuable.
The traffic investigator's use of the ignition key to unlock the storage compartment
makes the opening of this compartment akin to opening a car trunk, which is permissible.
(Colorado v. Bertine, supra, 479 U.S. at p. 375 [inventory search may extend to a car
trunk and closed containers located within the car].) The fact the motorcycle would be
towed to a police storage yard rather than a tow yard (a presumably less secure location),
is a distinction without a difference. Police may potentially be liable for lost or stolen
items, particularly valuables such as Smith's wallet, regardless of where the vehicle is

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stored. Accordingly, the trial court reasonably concluded that the traffic investigator had
performed a lawful inventory search aimed at securing the motorcycle and its contents.
III. ABILITY TO PAY
Smith contends that the trial court erred by imposing a $300 court facilities
assessment (Gov. Code, § 70373), a $10,000 restitution fine (Pen. Code, § 1202.4, subd.
(b)), and a stayed $10,000 parole revocation fine (Pen. Code, § 1202.45) without
determining his ability to pay. He contends that the issue is not forfeited because the trial
court made a legal error at sentencing, not a discretionary error, and it would have been
futile to object.
The minimum fine for felony convictions is $300. (§ 1202.4, subd. (b)(1).) A trial
court may consider inability to pay when "increasing the amount of the restitution fine in
excess of the minimum fine . . . ." (§ 1202.4, subd. (c).) It is well established that a
defendant forfeits a challenge to the trial court's imposition of a restitution fine above the
statutory minimum for failing to consider his or her ability to pay if the defendant did not
object in the trial court. (People v. Nelson (2011) 51 Cal.4th 198, 227 [alleged erroneous
failure to consider ability to pay a $10,000 restitution fine forfeited by the failure to
object]; People v. Avila (2009) 46 Cal.4th 680, 729 [forfeiture rule applies to claim that
restitution fine amounted to an unauthorized sentence based on inability to pay].)
Here, unlike the defendant in Dueñas, supra, 30 Cal.App.5th 1157, who created an
extensive record showing her inability to pay $220 in assessments and fines, Smith did
not object in the trial court on the grounds that he was unable to pay, even though the trial
court ordered him to pay a restitution fine well in excess of the statutory minimum. (Id.

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at pp. 1161-1163; People v. Castellano (2019) 33 Cal.App.5th 485, 490 ["Consistent with
Dueñas, a defendant must in the first instance contest in the trial court his or her ability to
pay . . . ."].) Accordingly, we conclude that Smith forfeited his challenges to the
assessment and fines. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154
(Frandsen) [finding that defendant who failed to challenge assessments and maximum
restitution fine at sentencing had forfeited his argument on appeal].)
Finally, we reject Smith's contention that an objection would have been futile
because the holding in Dueñas "represent[ed] a dramatic and unforseen [sic] change in
the law governing assessments and restitution fines." Even assuming the validity of this
argument, trial courts are statutorily authorized to consider a defendant's "inability to
pay" any restitution fine above the statutory minimum. (§ 1202.4, subd. (d).) Because
the $10,000 restitution fine imposed is greater than the statutory minimum, it would not
have been futile for Smith to request an ability to pay determination. Thus, Smith's
failure to object to a $10,000 restitution fine is inexcusable, as is his failure to object to
the much smaller $300 assessment. (Frandsen, supra, 33 Cal.App.5th at p. 1154 ["Given
his failure to object to a $10,000 restitution fine based on inability to pay, Frandsen has
not shown a basis to vacate assessments totaling $120 for inability to pay."].)

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DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.

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