THE PEOPLE v. DENISE ANN MARQUEZ (2011)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O NFACTS

Appellant, Denise Ann Marquez, pled no contest to possession for sale of methamphetamine (Health & Saf.Code, § 11378).

On December 23, 2009, the court suspended imposition of sentence and placed Marquez on probation on condition that she serve 258 in days local custody, with credit for time served.

On appeal, Marquez contends:  1) the court erred when it denied her motion to suppress;  and 2) the clerk's minute order of her sentencing hearing contains a clerical error.   We find merit to Marquez's second contention.   In all other respects, we affirm.

On July 5, 2009, Bakersfield police officers arrested Marquez after searching the room she shared with her boyfriend, Ricardo Serrano, and finding a plastic baggie containing crystal methamphetamine and two digital gram scales.

On July 23, 2009, the Kern County District Attorney filed an information charging Marquez with possession for sale of methamphetamine.

On August 18, 2009, Marquez filed a motion to suppress.

On September 1, 2009, at a hearing on this motion, Bakersfield Police Officer Brent Stratton testified that on July 5, 2009, at approximately 12:00 a.m., he and other officers went to a house where Marquez was staying and knocked at the door.   After an elderly lady answered the door, Marquez's boyfriend, Ricardo Serrano, came to the door and spoke with the officers.   Officer Stratton explained to Serrano that they were investigating an armed robbery, which had just occurred, and that they believed the vehicle used in the robbery was registered to him.   The officers further told Serrano that they believed the primary suspect, whom Serrano identified as his nephew, resided at the house and that Serrano might be a suspect too.   Serrano assured them that he was not involved in the robbery and told them his nephew was not home.   The officers asked Serrano if they could search his room for “any evidence of that crime” and Serrano said they could.   Serrano told them the back bedroom was his.

The officers proceeded to the back room where one of them contacted Marquez as she exited the room.   The officer explained to Marquez the reasons they were there and she also consented to a search of the room.   During the search, Officer Felgenhauer located a clear plastic baggie containing suspected methamphetamine and two digital scales.

Serrano testified he never gave the officers permission to search his room but he conceded that he did not know whether Marquez did.   According to Serrano, the officers were looking for a gun.

During argument, defense counsel argued that Serrano did not consent to an entry into his bedroom and that the absence of consent vitiated any consent that Marquez may have given.   Alternatively, defense counsel argued that the search exceeded the scope of the consent given because the officers were looking for a gun and they did not establish that the drugs were found in plain view or in a container that could contain a gun.

On September 2, 2009, the court denied the motion.

DISCUSSION

The Motion to Suppress

Marquez contends that the officers asked for consent to search for a gun and the prosecution failed to meet its burden of showing that the search occurred within the scope of the consent given, i.e., locations where a gun could be hidden.   Thus, according to Marquez, the court erred when it denied her motion to suppress.   We disagree.

“The standard of review for the denial of a motion to suppress is well settled.  ‘We 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.  [Citations.]’  [Citation.]

“Consent to a search is a recognized exception to the Fourth Amendment's warrant requirement.  [Citation.]  The prosecution bears the burden to prove that a warrantless search was within the scope of the consent given.   [Citation.]  ‘A consensual search may not legally exceed the scope of the consent supporting it.  [Citation.]’  [Citation.]  ‘The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of “objective” reasonablenesswhat would the typical reasonable person have understood by the exchange between the officer and the suspect?   [Citations.]’  [Citation.]  ‘Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of circumstances.  [Citation.]  Unless clearly erroneous, we uphold the trial court's determination.’  [Citation.]”  (People v. Cantor (2007) 149 Cal.App.4th 961, 965.)

Here, Officer Bratton testified that while speaking with Serrano, he asked him for permission to search for “any evidence” of the armed robbery they were investigating and that Serrano gave them permission.   Although Serrano denied doing so, the trial court was entitled to accept the officer's testimony that Serrano freely consented to the search even in the face of Serrano's conflicting testimony.  (People v. Ratliff (1986) 41 Cal.3d 675, 687.)   Accordingly, we reject Marquez's contention that the express object of the search was a gun.

Moreover, evidence of an armed robbery can range from money taken during the robbery to articles of clothing or jewelry that the culprits were wearing at the time.   Thus, the trial court could reasonably find that by consenting to a search of his room for evidence of an armed robbery, Serrano understood he was consenting to a thorough search of the room that included any locations that were capable of concealing two digital gram scales and a baggie containing methamphetamine.   Further, since the digital scales and methamphetamine were found in Serrano's room, it was not necessary for the prosecutor to show exactly where in the room they were found since the scope of Serrano's consent covered the entire room.   Accordingly, we reject Marquez's contention that the court erred when it denied her motion to suppress.

The Error in the Clerk's Minute Order

of Marquez's Sentencing Hearing

The reporter's transcript of Marquez's sentencing hearing indicates that as one condition of probation, the court ordered that “[Marquez] must not be anyplace [sic ] where she knows [any illegal controlled substance] is illegally sold, supplied, stored or present.”  (Italics added.)   The clerk's minute order for Marquez's sentencing hearing memorializes this condition as follows:  “Defendant to refrain from ․ nor be in, around or about any place where any controlled substance is illegally sold, supplied, stored or is present.”   (Original all in capital letters.)

Marquez contends that the omission of a knowledge element in the above condition in the clerk's minute order must be corrected because the oral pronouncement of judgment is controlling.   Respondent concedes and we agree.

“ ‘Rendition of judgment is an oral pronouncement.’   Entering the judgment in the minutes being a clerical function [citation], a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error.”  (People v. Mesa (1975) 14 Cal.3d 466, 471.)   Accordingly, we direct the trial court to correct its minute order to include a knowledge element in the condition at issue.

DISPOSITION

The trial court is directed to correct the minute order of Marquez's sentencing hearing to indicate that the probation condition at issue has a knowledge element as discussed above.   In all other respects, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

THE COURT 1 FN1. Before Wiseman, Acting P.J., Gomes, J., and Kane, J.