P. v. Macias

Filed 7/23/07 P. v. Macias CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
CELIA R. MACIAS,
Defendant and Appellant.
B191006
(Super. Ct. No. VA090686)
APPEAL from a judgment of the Superior Court of Los Angeles County. Cynthia
Rayvis, Judge. Affirmed.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and
Respondent.
___________________________________________

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Celia Macias appeals from a judgment entered after a jury found her guilty of
possessing cocaine for sale.1
Macias contends evidence the police obtained from her
“dayplanner” (or date book) and an intercepted cellular telephone call violated her Fourth
Amendment right to be free from unreasonable searches and seizures, and the failure to
exclude this evidence at trial violated her Fourteenth Amendment right to due process.
Macias also contends the trial court violated her Sixth Amendment right to a jury trial
when it imposed an upper term sentence on the offense based on factual findings not
made by the jury. We conclude the search was reasonable and the trial court did not err
in imposing the upper term sentence. Accordingly, we affirm.
FACTS AND PROCEEDINGS BELOW
As Macias acknowledges on appeal, at the time of the charged offense she was on
probation in another case due to an April 4, 2005 conviction for possession of a
controlled substance2
(Case No. VA087939). As a condition of her probation, Macias
agreed to submit her “person and property to a search at any time of the day or night by
any law enforcement officer or probation officer with or without a warrant or probable
cause.”
At about 4:20 p.m. on August 11, 2005, the date of the incident at issue here, two
Huntington Park Police Department officers arrived at a hotel room registered to Macias
to serve her with an arrest warrant.3
After identifying themselves and entering the room,
the officers observed Macias attempting to conceal a white object in her pants. The
officers grabbed her hand and recovered more than six grams of rock cocaine. The
officers arrested Macias and proceeded to search her hotel room. The officers recovered
1
Health and Safety Code section 11351.5.
2
Health and Safety Code section 11350, subdivision (a).
3
Apparently the warrant related to a probation violation for possession of a
controlled substance.

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a “dayplanner”4
which included what appeared to be monetary notations, $146.09 in
coins and currency in a purse, a second, significantly smaller piece of cocaine, and a
razor blade with white residue on it. The officers did not recover any paraphernalia
typically associated with the use of rock cocaine (i.e., glass tubes). Macias told the
officers she swallowed the rock cocaine as a medicine.
Before Macias was taken to the police station, the arresting officers “observed
what appeared to be the outline of a cell phone in the rear of her pants.” In compliance
with police policy, the two male officers did not remove the object from Macias’s pants.
Instead they told the officer who transported Macias to the station to have a female
officer search Macias and remove the item. The officer who transported Macias had
cleaned out the back seat of the patrol car before Macias entered. Shortly after Macias
exited the vehicle, the officer found a cell phone in the back seat, which he turned over to
one of the arresting officers at the station.
At about 4:45 p.m., the cell phone rang and one of the arresting officers asked a
Spanish-speaking officer to answer it. The caller asked for a “20” of “rock” and said she
would meet the officer to pick it up. The officers did not answer the cell phone again
even though it rang several more times.
An information charged Macias with possession of cocaine for sale and also
alleged a prior conviction for the same offense. At trial, the prosecution presented to the
jury evidence pertaining to the dayplanner the police recovered from Macias’s hotel room
and the conversation the officer had on Macias’s cell phone. Macias did not object to this
evidence. She testified in her own defense, stating she combined the rock cocaine with
oils and applied it topically to her body or bathed in it to relieve soreness, and also used
the rock cocaine orally for tooth pain. Macias claimed she did not sell cocaine, and
earned money by cleaning residences and doing laundry. She also claimed the notations
in her dayplanner were a record of money owed to the hotel. While Macias was on the
4
On appeal, Macias describes this recovered item as a “date book.”

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stand, the trial court took judicial notice of the fact she was on probation for possession
of a controlled substance at the time of her arrest for the charged offense.
A jury found Macias guilty of possessing cocaine for sale, and also found she had
been convicted of the same charge in April 2002. The trial court sentenced Macias to the
upper term of five years for the offense, finding two aggravating factors: Macias was on
felony probation at the time of the present offense and her prior performance on
probation was unsatisfactory. Macias did not dispute the truth of either aggravating
factor, and the trial court did not find any factors in mitigation. The court also sentenced
Macias to a consecutive three-year term based on her prior conviction.5
Thus, she
received a total sentence of eight years.
DISCUSSION
I. THE POLICE OFFICERS DID NOT VIOLATE MACIAS’S
CONSTITUTIONAL RIGHT TO BE FREE FROM
UNREASONABLE SEARCHES AND SEIZURES.
Macias claims the officers acted outside the scope of the arrest warrant when they
recovered the dayplanner from her hotel room and answered the cell phone found in the
back of the police car, thereby violating her Fourth Amendment right to be free from
unreasonable searches and seizures. The People argue Macias waived this claim on
appeal by failing to move to suppress the evidence below under Penal Code section
1538.5. We agree.
Penal Code section 1538.5, subdivision (a)(1) provides: “A defendant may move
for the return of property or to suppress as evidence any tangible or intangible thing
obtained as a result of a search or seizure on either of the following grounds: [¶] (A)
The search or seizure without a warrant was unreasonable. [¶] (B) The search or seizure
with a warrant was unreasonable because any of the following apply: [¶] (i) The
5
Health and Safety Code section 11370.2, subdivision (a).

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warrant is insufficient on its face. [¶] (ii) The property or evidence obtained is not that
described in the warrant. [¶] (iii) There was not probable cause for the issuance of the
warrant. [¶] (iv) The method of execution of the warrant violated federal or state
constitutional standards. [¶] (v) There was any other violation of federal or state
constitutional standards.” Subdivision (m) of section 1538.5 states, in pertinent part:
“The proceedings provided for in this section, and Sections 871.5, 995, 1238, and 1466
shall constitute the sole and exclusive remedies prior to conviction to test the
unreasonableness of a search or seizure where the person making the motion for the
return of property or the suppression of evidence is a defendant in a criminal case and the
property or thing has been offered or will be offered as evidence against him or her. . . .
Review on appeal may be obtained by the defendant provided that at some stage of the
proceedings prior to conviction he or she has moved for the return of property or the
suppression of the evidence.”
Macias asserts her Fourth Amendment right to be free from unreasonable searches
and seizures is a fundamental constitutional right which may not be waived or forfeited
on appeal under the circumstances of this case.6
We disagree.7
“The proposition that
‘certain’ constitutional challenges are preserved without a trial objection hardly
establishes that all such claims are preserved, or that [Macias]’s claim is preserved. None
of the examples cited in [the cases Macias references] bears any resemblance to the
6
See People v. Vera (1997) 15 Cal.4th 269, 276-277 (“Not all claims of error are
prohibited in the absence of a timely objection in the trial court. A defendant is not
precluded from raising for the first time on appeal a claim asserting the deprivation of
certain fundamental, constitutional rights,” like the constitutional right to a jury trial).
Macias also cites People v. Saunders (1993) 5 Cal.4th 580, 589, footnote 5 (a defendant
would not be precluded from raising a double jeopardy claim or a violation of his or her
constitutional right to a jury trial based on a failure to object below).
7
See People v. Ledesma (1987) 43 Cal.3d 171, 235-236 (conc. opn. of Mosk, J.)
(by failing to object in the trial court, the defendant forfeited his evidentiary claim
pertaining to a telephone call intercepted by the police, which implicated the defendant’s
Fourth Amendment right to be free from unreasonable searches and seizures).

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constitutional-evidentiary issue [Macias] seeks to raise here.”8
Moreover, the procedure
and principles outlined in Penal Code section 1538.5 would be rendered meaningless if a
defendant could raise a Fourth Amendment search and seizure claim on appeal without
first moving to suppress the evidence in the trial court.
In any event, to affirm the conviction, we need not rely on this waiver or forfeiture
argument alone. Nor do we need to decide whether the search and seizure fell inside or
outside the scope of the arrest warrant. In her opening appellate brief, Macias
acknowledges she was on probation in Case No. VA087939 at the time of her arrest for
the offense charged in this case. As a condition of her probation, Macias agreed to
submit her “person and property to a search at any time of the day or night by any law
enforcement officer or probation officer with or without a warrant or probable cause.”
Under the Fourth Amendment, a warrantless search is unreasonable per se unless
it falls under a recognized exception.9
A probation search is one recognized exception to
the warrant requirement.10
Such a search is valid provided law enforcement officers are
aware of a probationer’s status,11
the search is not motivated by either the desire to harass
or for arbitrary or capricious reasons,12
and the search is reasonably related to the
purposes of probation.13
In recognizing a broader range of constitutionally permissible
searches under the terms of probation, courts have emphasized the diminished privacy
expectations a probationer possesses who has agreed to search terms, and courts have
contextualized this privacy intrusion within the spectrum of available criminal
8
People v. Viray (2005) 134 Cal.App.4th 1186, 1208-1209 (the defendant failed to
object in the trial court to “evidence obtained through her interrogation by the
prosecutor” in violation of her constitutional right to counsel, and therefore her claim was
not preserved for appeal).
9
People v. Robles (2000) 23 Cal.4th 789, 795.
10
People v. Robles, supra 23 Cal.4th at page 795.
11
People v. Robles, supra 23 Cal.4th at page 797.
12
People v. Bravo (1987) 43 Cal.3d 600, 610.
13
People v. Robles, supra 23 Cal.4th at page 797.

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sanctions.14
Furthermore, search provisions in the probation context encourage
rehabilitation of a convicted felon and protect society from future criminal conduct.15
A
warrantless search made pursuant to a probation search condition which eliminates the
need for probable or reasonable cause is unquestionably constitutional if the search is
supported by a reasonable suspicion of criminal activity.16
The record makes clear one or both of the officers who entered Macias’s hotel
room on August 11, 2005 to serve an arrest warrant knew Macias was on probation and
had agreed to submit to searches as a condition of her probation.17
The officers recovered
an “extraordinary [sic] large amount” of rock cocaine, leading at least one of them to
believe Macias possessed the cocaine for sale. At trial, one of the officers estimated the
amount of cocaine Macias had “could be converted from anywhere to 24 to 50 doses.”
Moreover, the officers did not see any paraphernalia typically associated with the use of
rock cocaine (i.e., glass tubes). There is overwhelming evidence indicating the officers
had a reasonable suspicion Macias possessed the cocaine for sale. Thus, it was not
unreasonable for them to open the dayplanner and answer the cell phone in their search
for additional evidence of sales activities.18
14
See e.g. United States v. Knights (2001) 534 U.S. 112, 118-119; People v. Robles,
supra, 23 Cal.4th at page 795.
15
See United States v. Knights, supra 534 U.S. at page 119; People v. Robles, supra
23 Cal.4th at page 795.
16
See United States v. Knights, supra 534 U.S. at page 121, (“When an officer has
reasonable suspicion that a probationer subject to a search condition is engaged in
criminal activity, there is enough likelihood that criminal conduct is occurring that an
intrusion on the probationer's significantly diminished privacy interests is reasonable”).
17
At Macias’s preliminary hearing, arresting Officer Bonzer testified, prior to the
time he arrived at the hotel room, he “knew that [Macias] was on felony probation with a
search and seizure clause as a condition of probation.” At trial, Officer Thoreson testified
he and Officer Bonzer knew before they went to the hotel that Macias was on probation.
18
While we are sensitive to the possibility a prolonged period of police interception
of cell phone calls pursuant to a probation search condition might inappropriately invade
a probationer’s reasonable expectation of privacy, we are not concerned with that
possibility here where the officer answered the cell phone only about 25 minutes after the
arresting officers first showed up at the hotel room door.

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Macias argues the scope of the probation search condition was limited to evidence
relating to the offense for which she was on probation: possession of a controlled
substance. She asserts the officers had no “authority” to open her dayplanner or answer
her cell phone because these things had nothing to do with her possession of cocaine for
her own personal use. Based on the broad terms of the search condition Macias agreed to
be bound by and the case law cited above, it is clear Macias is wrong. A reasonable
suspicion of criminal activity is all that was required to permit the police to search
Macias’s person and property.
For the foregoing reasons, even if Macias had not waived or forfeited this claim,
we would find the use of this evidence at trial did not violate any of Macias’s
constitutional rights.
II. THE TRIAL COURT DID NOT COMMIT “CUNNINGHAM
ERROR” IN SENTENCING MACIAS TO THE UPPER TERM.
In Cunningham v. California,19
the United States Supreme Court reiterated the rule
it expressed in Apprendi v. New Jersey20
and other cases: “the Federal Constitution’s jury-
trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence
above the statutory maximum based on a fact, other than a prior conviction, not found by
a jury or admitted by the defendant.”21
Applying this rule to California’s determinate
sentencing law, the Court held the law violates the defendant’s Sixth Amendment right to
a jury trial to the extent it permits the imposition of an upper term sentence based “on
19
Cunningham v. California (2007) 549 U.S. ____, 127 S.Ct. 856.
20
Apprendi v. New Jersey (2000) 530 U.S. 466, 490.
21
Cunningham v. California, supra, 127 S.Ct. at page 860, italics added; see Blakely
v. Washington (2004) 542 U.S. 296, 301.

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facts found discreetly and solely by the judge.”22
Macias contends such a violation
occurred here.23
We disagree.
In sentencing Macias to the upper term for possession of cocaine for sale the trial
court found two aggravating factors: Macias was on felony probation at the time of the
offense, and “[h]er prior performance on probation was unsatisfactory when she was
previously convicted of the same offense in 2002.”24
A number of jurisdictions, including California, have interpreted the “prior
conviction” exception to extend beyond the mere fact of a prior conviction to include
facts more broadly characterized as the defendant’s recidivism, including the defendant’s
status as a probationer at the time of the current offense.25
Accepting our Supreme
Court’s interpretation of the scope of the “prior conviction exception,” as we must, the
trial court’s finding Macias was on probation at the time of the offense and her prior
performance on probation was unsatisfactory is valid under Cunningham. Her counsel
asked the court to take judicial notice of her probation status, and the fact she performed
22
Cunningham v. California, supra 127 S.Ct. at page 868.
23
The People argue Macias forfeited this claim by not asserting an objection below.
This argument is without merit. At the time Macias was sentenced, our Supreme Court
held California’s determinate sentencing law did not violate the bright-line rule
articulated by the United States Supreme Court. (Compare People v. Black (2005) 35
Cal.4th 1238, 1244 with Blakely v. Washington, supra, 542 U.S. at p. 301 and Apprendi
v. New Jersey, supra, 530 U.S. at p. 490.) Following Macias’s sentencing the United
States Supreme Court overruled Black in pertinent part. (Cunningham v. California,
supra 127 S.Ct. at p. 871.) At the sentencing hearing, however, the trial court had no
alternative but to follow Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.) Thus, it would have been futile for Macias to have objected on these
grounds to the imposition of the upper term sentence. (People v. Boyette (2002) 29
Cal.4th 381, 432; People v. Hill (1998) 17 Cal.4th 800, 820-821.)
24
See California Rules of Court, rule 4.421(b)(4) and (5).
25
See discussion in People v. McGee (2006) 38 Cal.4th 682, 702-707, citing
Almendarez-Torres v. United States (1998) 523 U.S. 224; see also People v. Thomas
(2001) 91 Cal.App.4th 212, 221-222.

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unsatisfactorily was necessarily found by the jury beyond a reasonable doubt when it
convicted her of the current offense.26
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
JOHNSON, J.
We concur:
PERLUSS, P. J.
WOODS, J.
26
To the extent the trial court meant Macias’s performance on probation due to her
April 2002 conviction for possession of cocaine for sale was unsatisfactory, Macias
cannot dispute that either. Her probation report indicates she had a September 9, 2003
conviction for misdemeanor petty theft while she was on probation in that other case.

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