Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. TA083337 Paul A. Bacigalupo, Judge, Judith L. Meyer, Judge
Henry Salcido, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Paul M. Roadarmel, Jr., Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Following denial of his motions to quash a search warrant and to strike a prior conviction, appellant LaKeith Cornae Crosby pled no contest to one count of possession of marijuana for sale (Health & Saf. Code, § 11359) and admitted that he suffered a prior serious felony conviction (Pen. Code, § 246). The trial court sentenced him to four years in state prison, doubling the mid term of two years pursuant to section 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i).
All statutory references are to the Penal code unless otherwise stated.
Appellant contends that the search of his residence and resulting seizure of 13 pounds of marijuana was unlawful because the warrant delegated authority to law enforcement officers to determine whether probable cause existed to search an adjacent residence, because the warrant authorized an overbroad search for evidence of street gang membership, and because the magistrate relied upon information that was derived from an illegal search of a third person, conclusory statements, stale information and incorrect statements about appellant's criminal history in determining whether probable cause existed to support the warrant. Appellant also contends that the court erred when it denied his motion to strike his prior conviction. We affirm.
FACTUAL AND PROCEDURAL HISTORY
On the morning of February 2, 2006, Los Angeles Police Department (LAPD) officers searched appellant's residence located at 1704 East 114th Street (1704) in Los Angeles pursuant to a warrant issued earlier that morning. The warrant authorized the search of the family residence at 1704 and a garage located at 1706 East 114th Street (1706) for marijuana, related paraphernalia, indicia of control, and evidence of street gang membership. The garage was the only structure located at 1706, and appeared to connect 1704 with another residence located at 1702 East 114th Street (1702). The warrant also gave contingent authority to search 1702 "if during the service of the search warrant, [officers] discover there is direct access from 1704 East 114th Street to 1702 East 114th Street from the common garage [1706]. Or, in the event [officers] discover [that] persons inside of 1704 East 114th Street have keys, mail, or other evidence linking them, or showing them to have access to 1702 East 114th Street."
Appellant and his girlfriend, Uzema McGee, were present during the search on the morning of 1704. Appellant was wearing a robe and underwear. The officers discovered and seized 13 pounds of marijuana sealed in one-quarter pound baggies, two digital scales, large amounts of cash folded and sorted in a manner consistent with the sale of narcotics, and two loaded revolvers. During the search, appellant cooperated. He stated that there was marijuana in his closet and that it belonged solely to him. Among appellant's personal belongings were keys to the front and rear doors of 1704 and keys to the garage doors of 1706. The officers did not search 1702. Appellant was arrested on suspicion of possessing marijuana with intent to sell and of being a felon in possession of firearms. (§ 12021, subd. (a).) No evidence of gang membership was discovered.
Appellant was charged with one count of possession of marijuana for sale, and two counts of being a felon in possession of a firearm with two prior convictions. (§ 12021, subd. (a)(1).) As to all counts, it was alleged that appellant suffered a prior serious or violent felony conviction within the meaning of the Three Strikes law (§ 667, subds. (b) – (i)), based upon his conviction for shooting into an inhabited dwelling in 1993. (§ 246.)
Appellant filed a motion to quash the search warrant and to suppress all evidence seized during the search of his residence. (§ 1538.5.) He argued that the affidavit in support of the warrant lacked probable cause. The trial court denied the motion, finding that the affidavit was supported by probable cause.
The affidavit in support of the warrant was prepared by Officer C. Mrakich, who had served with the LAPD for over 12 years and was a member of the Southeast Detective Section, Gang Impact Team. He had extensive training in gangs and narcotics. Mrakich also participated in the search. His affidavit set forth the following facts: The area of 114th Street and Grandee Avenue is referred to as "The Block" and is frequented by a violent street gang known as the "Bounty Hunter Bloods," a local set of which is known as the "Block Boys." Grandee Avenue is the nearest cross street to 1704. In "January of 2005 [sic]," Mrakich and his partner observed an unusually high level of pedestrian and vehicle traffic in the area. On January 13, 2006, Mrakich and his partner conducted surveillance and observed a steady flow of vehicle and pedestrian traffic going to 1704 East 114th Street, consistent with the sale of narcotics.
During the week of January 16, 2006, Mrakich "routinely checked the location during the early morning hours," during which he observed a pick up truck parked in the driveway. The truck was registered to appellant at 1706. LAPD sources listed appellant's current address as 824 West 120th Street, but showed his prior address as 1702 in 2003. Mrakich declared that appellant had a criminal history "with prior convictions [for] burglary, shooting into an inhabited dwelling, possession of cocaine for sale and conspiracy to distribute cocaine," and was a "known gang member from the Bounty Hunter Bloods who uses the street moniker, 'Buddha.'" Appellant's actual criminal history consisted of: a 1988 conviction for either burglary or receiving stolen property for which he was sentenced to three months in confinement and given an other than honorable discharge by the United States Navy; a 1992 conviction for shooting into an inhabited dwelling (§ 246) for which he was granted three years probation with terms and conditions including one year in county jail; and a 1994 conviction for possession of narcotics for sale for which he was sentenced to four years in state prison. In 1998 he was charged with, but acquitted of, cocaine distribution and conspiracy to distribute cocaine in Tennessee. Appellant's rap sheet was attached to the affidavit, but that attachment is not included in our record.
Officer Mrakich declared that on January 23, 2006, he watched appellant come out of 1704, enter an Oldsmobile, remove an object, return to 1704, come back out of 1704 and open the door of the garage that appeared to be connected to both 1704 and 1702.
On January 30, 2006, Mrakich and another officer watched a Honda pull up and park in front of 1704. A man (later identified as Giles Barnett) left the Honda and walked to the front door of 1704, where appellant came out to greet him. After the men spoke, Barnett drove his Honda toward the garage and out of view, and then drove away a few minutes later. According to Mrakich, he and his partner "conducted a pre-text traffic stop on the car" and detected a strong odor of marijuana. They searched the vehicle and found a large quantity of marijuana. Barnett admitted "outside Miranda" that he purchased the marijuana from a male named "Buddha" in the area of 114th Street and Grandee Avenue.
Mrakich formed the opinion that Barnett had just purchased marijuana from appellant at 1704, that appellant was in control of 1704 and selling marijuana from that location, and that marijuana, evidence of a sales conspiracy and firearms would be recovered from a search of 1704. Mrakich also reported his belief that articles from the premises would show "the identity of potential additional gang members exercising dominion and control over the marijuana and . . . paraphernalia." He declared that "[t]he presence of firearms will further enhance my belief that this location is set up by gang members specifically for the sale and distribution of marijuana."
After denying appellant's motion to quash, the trial court also denied his motion to strike his prior 1992 conviction for shooting at an inhabited dwelling. (§ 246.) Appellant entered a no lo contendre plea and admitted the prior conviction, and the two firearm counts were dismissed. After sentencing, appellant renewed his motion under People v. Romero (1996) 13 Cal.4th 497, which was again denied. The trial court granted appellant's request for a certificate of probable cause. (§ 1237.5.)
DISCUSSION
The Warrant
Probable cause for the issuance of a search warrant exists where the facts contained in the affidavit are such as would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the existence of contraband in the premises sought to be searched. When a search is based on a warrant the reviewing courts will accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant. (Skelton v. Superior Court (1969) 1 Cal.3d 144, 150.) On review, we pay great deference to the magistrate's determination; our duty is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. (Illinois v. Gates (1983) 462 U.S. 213, 236.) We will not invalidate a warrant by interpreting an affidavit in a hypertechnical, rather than a commonsense, manner. (Ibid.)
Appellant first contends that the warrant was unlawful because it delegated to law enforcement the power to determine whether probable cause existed to search 1702, depending upon circumstances uncovered during the search. We reject the contention. A contingent search warrant is valid if "the affidavit sets out in detail the anticipated events upon which execution is contingent, and the magistrate determines that the right to search will exist upon the occurrence of these events, the determination of probable cause is not improperly delegated by leaving to the officers the future determination of whether those events have actually occurred." (People v. Sousa (1993) 18 Cal.App.4th 549, 560.) Furthermore, no evidence was seized from 1702. Even if the contingent provision concerning 1702 were invalid, that portion was severable and did not render the search of 1704 and seizure of evidence from 1704 illegal. (Aday v. Superior Court (1961) 55 Cal.2d 789, 797.) Similarly, the authority to search for evidence of gang membership, whether valid or not, had no effect on the legality of the seizure of drugs, drug paraphernalia, cash, and firearms from 1704.
Appellant also contends that the magistrate should not have considered information derived from a pretextual traffic stop of Barnett's Honda. Evidence derived from an illegal search may not be used to support the issuance of a warrant. (People v. Machupa (1994) 7 Cal.4th 614, 628.) However, a traffic stop based on observation of a traffic violation is not rendered invalid by the fact that it is a mere pretext for a narcotics search. (Whren v. U.S. (1996) 517 U.S. 806, 813.) Appellant cannot challenge the legality of the traffic stop in this case because he had no expectation of privacy in Barnett's Honda (People v. Ayala (2003) 23 Cal.4th 225, 254, fn. 3) and his freedom of movement was not restrained by the detention. (Brendlin v. California (2007) 551 U.S. __ [168 L.Ed.2d 132, 138].)
Appellant contends that conclusory statements by Officer Mrakich must be excised from the affidavit. An affidavit in support of a search warrant must provide the magistrate with a substantial basis for determining the existence of probable cause, and conclusory statements do not meet this requirement. (Illinois v. Gates, supra, 462 U.S. at p. 239.) On the other hand, a magistrate may properly consider an affiant's opinion that is based on experience in narcotics detection and common sense. (People v. Mayoff (1986) 42 Cal.3d 1302, 1320.) Mrakich's affidavit established that he had been assigned to Southeast Los Angeles for 11 years and was working the neighborhood of 1704 as a member of a unit devoted to gang investigation and suppression. His affidavit demonstrates sufficient training and experience to support his opinions that the area in question is referred to as "The Block" and is frequented by the Bounty Hunter Bloods, and that appellant is a known member of the Bounty Hunter Bloods who uses the street moniker "Buddha." Mrakich's specialized training in narcotics sales and distribution, his work in narcotics enforcement units, and his execution of over 50 narcotics related search warrants provided sufficient basis for his opinion that the steady flow of vehicle and pedestrian traffic going to 1704 was consistent with the sale of narcotics.
Appellant is correct that the affiant's reference to traffic patterns in 2005 is stale. The date is probably a clerical error, but it was not corrected and should be excised when determining whether the magistrate had a substantial basis probable cause. The remaining information about events of the last two weeks in January of 2006 was sufficiently fresh to have provided probable cause to believe that the material to be seized was still on the premises when the warrant was sought. (People v. Mesa (1975) 14 Cal.3d 466, 470.)
The freshness of information is one of the factors which determine whether there is probable cause to support issuance of a warrant. (People v. Hernandez (1974) 43 Cal.App.3d 581, 586.) No clear cut rule determines when the time span must be deemed too attenuated. (Alexander v. Superior Court (1973) 9 Cal.3d 387, 393.) In Alexander, information that defendant kept a stash of narcotics at her former residence one year previously was not sufficiently fresh to support issuance of a warrant to search her current residence. In appellant's case, the information was more recent. On January 13, 2006, officers observed traffic at 1704 consistent with the sale of narcotics. In the week of January 16, 2006, appellant's truck was parked outside 1704 in the early morning hours. On January 23, 2006, officers saw appellant entering 1704, the garage at 1706, and McGee's car. On January 30, 2006, Barnett purchased a large quantity of marijuana from appellant at 1704. On February 2, 2006, the warrant was issued and executed. The information was sufficiently timely to support the belief that evidence of narcotics transactions was still on the premises.
The affidavit contained errors concerning appellant's criminal history. He did have prior convictions for burglary or receiving stolen property (1988), shooting into an inhabited dwelling (1992), and possession of narcotics for sale (1994), but he was acquitted of the charge of possession of cocaine for sale and conspiracy to distribute cocaine. Appellant did not challenge the error in the trial court, and may not raise it for the first time on appeal. (People v. Mitchell (1995) 36 Cal.App.4th 672, 674, fn. 1.)
Even if the erroneous information were excised, together with the single stale reference to traffic in 2005, the warrant is supported by probable cause based on the observed steady traffic at 1704, the sale of narcotics to Barnett from that property, and appellant's evident exercise of control over 1704. Accordingly, the issuing magistrate had a substantial basis for concluding that probable cause existed. (Illinois v. Gates, supra, 462 U.S. at pp. 238-239.)
Romero Motion
In cases brought under the Three Strikes law, the trial court may reduce the defendant's sentence by striking a prior felony allegation. (§ 1385, subd. (a), People v. Romero, supra, 13 Cal.4th 497.) The trial court's discretion to strike a prior felony in furtherance of justice is limited. (Id. at p. 530.) The court must consider "whether, in light of the nature and circumstances of [the] present felonies and [the] prior serious and/or violent felony convictions, and the particulars of [the defendant's] background, character, and prospects, the defendant may be deemed outside the . . . spirit [of the three strikes sentencing scheme], in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) We review the trial court's decision for abuse of discretion. (Id. at p. 162.)
Pursuant to stipulation, the trial court rendered its decision based upon the entire file including the search warrant and affidavit. The present felony involved 13 pounds of marijuana packaged for sale and stored in a house with loaded firearms in gang territory. Appellant's background included several convictions of increasing seriousness, two of which were felonies, one of which involved the sale of narcotics, and each of which occurred more than 10 years before the present offense. A trial court may, in its discretion, strike a prior conviction as remote in time if it has been followed by a "crime-free cleansing period of rehabilitation . . . ." (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) Here, the trial court conducted the required factual inquiry into appellant's background and considered the period of time between convictions. The court expressed concern that after committing the strike offense, appellant had been sent to prison for committing a crime related to sale of narcotics and that he was nevertheless not lawfully employed and was selling drugs again, in a very large quantity. The court acted within its discretion when it concluded that appellant is within the spirit of the three strikes law.
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.