G052552 (Cal. Ct. App. Jan. 9, 2018)



THE PEOPLE, Plaintiff and Respondent, v. ARTURO FERNANDO SHAW GUTIERREZ III, Defendant and Appellant.

Wendy C. Lascher for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CF2368) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert F. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Wendy C. Lascher for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Arturo Fernando Shaw Gutierrez III, now a suspended criminal defense attorney, appeals from a judgment after the trial court denied his motion to suppress evidence and traverse the search warrant and he pleaded guilty to numerous counts involving a minor. Gutierrez argued the court erred by denying his motions. None of his contentions have merit, and we affirm the judgment.


Factual History

Because Gutierrez pleaded guilty, the facts are taken from the police affidavits and exhibits to the motion to suppress evidence and traverse the search warrant.

In October 2012, police were investigating allegations a teacher had sexual intercourse with 15-year-old Jane Doe. On October 10, 2012, Doe voluntarily provided the investigating detective (Detective) her cell phone to view its contents; he discovered Gutierrez's name in her contacts. The same day, Doe's father gave Doe's cell phone records to the Detective, and later he gave her text message records to him. Two days later, Doe's father gave the Detective permission to search Doe's bedroom, and the Detective confiscated Doe's iPod touch, which had many social media applications, including Facebook. During the investigation, the Detective learned Doe had engaged in risky online behavior with several adult men, met some of them, and engaged in sexual conduct with them.

On October 30, 2012, the Detective and another officer (Officer) interviewed Doe. Doe granted police access to her Facebook account to communicate with another adult male by providing them with her username and password. When reviewing Doe's account, police discovered she communicated regularly with 35-year-old Gutierrez via Facebook's messaging system (Messages). Police learned then 14-year-old Doe first contacted Gutierrez in the summer of 2011. On a different dating site, Doe had represented she was 19 years old. In August 2011, Gutierrez Messaged Doe, who he thought was an adult. Doe told Gutierrez that she was 14 years old, and Gutierrez replied, "no worries," and suggested they could meet and practice sports. During that month, their conversations ranged from the mundane to the suggestive. Communication stopped in August 2011 and resumed in February 2012 when Gutierrez contacted Doe. Communication stopped again in early March and resumed briefly in July. Gutierrez contacted Doe again the end of September and he quickly initiated a sexual conversation. In early October, Doe contacted Gutierrez and suggested meeting. When Gutierrez contacted Doe a few weeks later, Doe told him that she had been hospitalized for five days and had a lawyer, and police and her father had control of her social media accounts.

On November 6, 2012, the Detective interviewed Doe again. Doe denied police further access to her Facebook account.

The next day, the Detective began using Doe's Facebook account to communicate with Gutierrez. Gutierrez, who believed he was communicating with Doe, attempted to arrange various meetings with her. He spoke with her about sexual matters.

On November 29, 2012, police obtained a warrant to search Gutierrez, including his cell phone and its records, and his residence, including his computer. Police later obtained search warrants to place a tracker on his car and to search his car.

Gutierrez eventually arranged to meet a person who he thought was Doe on December 1, 2012. On that day, Gutierrez arrived at the designated meeting place and was met by police, who arrested him.

Procedural History

An information charged Gutierrez with the following: attempted lewd act upon a child (Pen. Code, §§ 664, subd. (a), 288, subd. (c)(1)), all further statutory references are to the Penal Code) (count 1); contacting a child with the intent to commit a lewd act (§ 288.3, subd. (a)) (count 2); misdemeanor arranging to meet a minor for lewd purpose (§ 288.4, subd. (a)(1)) (count 3); and meeting a minor with the intent to engage in lewd conduct (§ 288.4, subd. (b)) (count 4).

Gutierrez filed a motion to suppress evidence and traverse the search warrant. The motion was supported by a declaration from Gutierrez's counsel and exhibits, including the search warrant, transcripts of law enforcement interviews with Doe, and transcripts of Gutierrez's Messages with Doe. These documents were filed under seal. The prosecution opposed the motion. Gutierrez replied. The day before the hearing, Gutierrez filed an extensive offer of proof.

At the hearing, the trial court stated it had reviewed everything. Gutierrez's counsel argued the officer searched Facebook's server and not Doe's cell phone or Gutierrez's computer. Counsel asserted Gutierrez had a privacy interest pursuant to The Stored Communications Act (SCA) (18 U.S.C. § 2701 et seq.), and thus there was a Fourth Amendment violation. The prosecutor contended Gutierrez did not have a reasonable expectation of privacy in electronic communications he sent to Doe. The trial court recessed to conduct further research.

At the next hearing, the trial court denied the motion to suppress. The court reasoned that "once the send button is pushed, whether it is e-mail, or text or, in this case, [a] message from one Facebook account to another, that Fourth Amendment expectation of privacy is gone." When Gutierrez's counsel inquired about the motion to traverse the search warrant, including witness testimony, the court initially stated it contemplated its ruling resolved all issues but ultimately concluded he would continue the matter to again read the moving papers.

The following week, the trial court indicated it had read the moving papers and conducted additional research. The court requested counsel address the following two issues during argument: the omission from the search warrant affidavit of one of Gutierrez's Messages to Doe on November 20, 2012; and whether there was probable cause to search for pornographic material.

The trial court stated the Message in question was on November 19, 2012, but the record demonstrates the Message the trial court referenced was on November 20, 2012, at 5:32 a.m.

The latter issue is not before us on appeal.

With regard to the November 20, 2012, Message, Gutierrez wrote Doe the following: "that's ok, honestly I am thinking we cant do anything more than meet. I have to much to lose. it scars me. I like you but think its best to wait for everything, and just meet and hang out when we get a chance[.]" Gutierrez's counsel argued the Detective's intentional omission of this statement damaged his credibility and undermined the affidavit's content. The prosecution contended the omission was negligent and even when the statement was added to the affidavit, there was still probable cause because Gutierrez's statements prior to that date were evidence of a violation of count 2, contacting a child with the intent to commit a specified crime (§ 288.3, subd. (a)).

We quote the messages verbatim. --------

The trial court stated it was "troubled" by the "reckless" omission of the November 20 statement, which was exculpatory and important. The court explained that when it evaluated the affidavit with the omitted statement, the court concluded there was probable cause. The court explained the search warrant stated the affiant was searching for evidence of two crimes, arranging to meet a minor for lewd purpose (§ 288.4, subd. (a)(1)) (count 3), and contacting a child with the intent to commit a specified crime (§ 288.3, subd. (a)) (count 2). The court opined "there was more than sufficient probable cause to issue a search warrant for the violation of" count 2. The court denied the motion to traverse the search warrant.

Gutierrez withdrew his not guilty pleas and pleaded guilty to all four counts. The trial court suspended imposition of sentence and placed him on three years of formal probation.


I. Motion to Suppress Evidence

Gutierrez argues the trial court erred by denying his motion to suppress. We disagree.

The Fourth Amendment generally requires police to secure a warrant before conducting a search. (U.S. Const., 4th Amend.) It is well settled an individual cannot challenge the introduction of evidence obtained in an allegedly unlawful search unless that individual had a reasonable expectation of privacy in the object seized or the place searched. (Rakas v. Illinois (1978) 439 U.S. 128, 143, 148 (Rakas); People v. Jenkins (2000) 22 Cal.4th 900, 972 (Jenkins).) "'Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicarious asserted.' [Citations.] A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. [Citation.]" (Rakas, supra, 439 U.S. at pp. 133-134.) The defendant bears the burden of establishing a legitimate expectation of privacy in the area searched or the object seized. (Id. at pp. 130-131, fn. 1; Jenkins, supra, 22 Cal.4th at p. 972.)

Under the third-party doctrine, an individual can claim "no legitimate expectation of privacy" in information he has voluntarily turned over to a third party. (Smith v. Maryland (1979) 442 U.S. 735, 743-744 (Smith).) The Supreme Court has reasoned that, by "revealing his affairs to another," an individual "takes the risk . . . the information will be conveyed by that person to the Government." (United States v. Miller (1976) 425 U.S. 435, 443.) The Fourth Amendment does not protect information voluntarily disclosed to a third party because even a subjective expectation of privacy in such information is "not 'one that society is prepared to recognize as "reasonable."' [Citation.]" (Smith, supra, 442 U.S. at p. 743.) Thus, the government does not engage in a Fourth Amendment "search" when it acquires information from a third party.

Here, Gutierrez frames the issue as one about his privacy rights and not Doe's. Saying it doesn't make it so. If anyone's privacy rights were implicated it was Doe's, and Gutierrez cannot assert those rights. Gutierrez sent Messages to Doe's Facebook account, over which he had no control. When Gutierrez sent the Messages to Doe, he risked whomever had access to Doe's account, Doe, Doe's parents, or the police, would see Gutierrez's Messages. There is no evidence the Detective infiltrated Facebook's servers surreptitiously to view Gutierrez's Messages to Doe. The Detective logged on to Facebook with Doe's credentials and viewed the Messages stored in her Facebook account. The Fourth Amendment does not protect Gutierrez's mistaken belief his Messages to Doe would only be viewed by Doe. (United States v. Lifshitz (2d Cir. 2004) 369 F.3d 173, 190 [individuals possess reasonable expectation of privacy in their home computers but they may not possess an expectation of privacy in transmissions over Internet or e-mail that have already reached recipient]); Guest v. Leis (6th Cir. 2001) 255 F.3d 325, 333 [individuals lose legitimate expectation of privacy in e-mail that reached recipient]; see also United States v. Mohamud (9th Cir. 2016) 843 F.3d 420, 443 [defendant reduced expectation of privacy in electronics communications with overseas foreign national].)

Gutierrez raises a number of additional arguments. First, Gutierrez argues he was entitled to an evidentiary hearing and the prosecution did not establish its burden of justifying the warrantless search. However, it was Gutierrez who bore the burden of establishing he had a reasonable expectation of privacy in Doe's Messages. (Minnesota v. Carter (1998) 525 U.S. 83, 88 [defendant has the burden of proof regarding reasonable expectation of privacy in place searched or items seized and that burden exists whether or not there was a search warrant].) Gutierrez failed to meet this burden.

Second, he contends the SCA creates an expectation of privacy in stored electronic messages. The SCA applies to service providers of stored electronic communications and not to individuals who receive such stored electronic communications. (In re Malik J. (2015) 240 Cal.App.4th 896, 903, O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1440; 18 U.S.C. §§ 2510(15), 2703(a); United States v. Warshak (6th Cir. 2010) 631 F.3d 266, 282.) Here, law enforcement did not obtain Gutierrez's Messages from Facebook, but from Doe while logged in to her account. The SCA does not apply. Gutierrez's reliance on Theofel v. Farey-Jones (9th Cir. 2004) 359 F.3d 1066, 1071, 1075, is misplaced, because in that case defendant obtained e-mails from the service provider, unlike here where the Detective obtained the Messages from the recipient, Doe.

Third, in a related argument, he cites to the SCA's "lawful consent" exception (18 U.S.C. § 2702(b)(3)), and he spends much time discussing the scope of Doe's consent. Again, the SCA is inapplicable here. And as we explain above, Gutierrez does not have a legitimate privacy interest in Doe's Facebook account and consequently cannot rely on the scope of Doe's consent, or lack thereof, as a basis to assert an unlawful search. Thus, the trial court properly denied Gutierrez's motion to suppress. II. Motion to Traverse the Search Warrant

Gutierrez asserts the trial court erred by denying his motion to traverse the search warrant pursuant to Franks v. Delaware (1978) 438 U.S. 154 (Franks). Not so.

Pursuant to Franks, "a defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. When presented with such a challenge, the lower court must conduct an evidentiary hearing if a defendant makes a substantial showing that (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth, and (2) the affidavit's remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause. The defendant must establish the statements are false or reckless by a preponderance of the evidence. [Citations.] Innocent or negligent misrepresentations will not defeat a warrant. [Citation.] 'Moreover, "there is a presumption of validity with respect to the affidavit. To merit an evidentiary hearing[,] the defendant['s] attack on the affidavit must be more than conclusory and must be supported by more than a mere desire to cross-examine. . . . The motion for an evidentiary hearing must be 'accompanied by an offer of proof . . . [and] should be accompanied by a statement of supporting reasons. Affidavits or otherwise reliable statements of witnesses should be furnished,' or an explanation of their absence given."' [Citations.]" (People v. Panah (2005) 35 Cal.4th 395, 456.)

Additionally, under Franks, "A defendant can challenge a search warrant by showing that the affiant deliberately or recklessly omitted material facts that negate probable cause when added to the affidavit. [Citations.] 'A defendant who challenges a search warrant based upon an affidavit containing omissions bears the burden of showing that the omissions were material to the determination of probable cause." (People v. Eubanks (2011) 53 Cal.4th 110, 136.) "'[F]acts are "material" and hence must be disclosed if their omission would make the affidavit substantially misleading. On review under section 1538.5, facts must be deemed material for this purpose if, because of their inherent probative force, there is a substantial possibility they would have altered a reasonable magistrate's probable cause determination.' [Citation.]" (People v. Sandoval (2015) 62 Cal.4th 394, 410.) Our review is de novo. (Ibid.)

First, Gutierrez claims the Detective's search warrant affidavit misstated the following material facts: Doe consented to the Detective accessing Gutierrez's Messages to her when in fact she consented only to accessing another adult male's Messages to Doe; Doe consented to the Detective accessing her profile to communicate with Gutierrez when in fact she denied consent; the meeting place was a pier when instead it was a restaurant on a pier; and the conversation remained sexual when in fact Gutierrez stated they could only meet.

With respect to the alleged material misstatements, Gutierrez has not overcome the presumption the affidavit was valid. In his affidavit the Detective wrote, "On October 30, 2012[,] Doe gave me access to her Facebook and allowed me to assume her profile." The interview transcript from that day demonstrates the Officer and Detective indicated they were not going to send Messages to anyone but a different adult male. They did not state they would not view Messages from other people. Doe knew that when she gave the Detective her username and password he would have full access to her account. The Detective also told Doe he was going to change her password, essentially locking her out of her profile.

On November 6, 2012, Doe refused the Detective further access to her Facebook account. Setting aside for the moment Gutierrez is once again improperly invoking Doe's privacy rights, Gutierrez offered no evidence as to what transpired after that interview. During the interview, the Detective told Doe that he would speak to her mother that day and tell her about the other adult male and "some stuff." The Detective accessed Doe's Facebook account and spoke with Gutierrez from November 7 to November 29. This is evidence Doe, either independently or with her mother's influence, consented to the Detective accessing her Facebook account. We conclude Gutierrez did not demonstrate the Detective's statements in the probable cause affidavit were false or reckless by a preponderance of the evidence.

Gutierrez's claim concerning the meeting place was imprecise but not a material misstatement. The last material fact he relies on, the nature of their conversation and their meeting, is more of an omission than a misstatement, and we will address his contention in that context.

Gutierrez contends the Detective's search warrant affidavit omitted the following material facts: On November 20, 2012, while the Detective was posing as Doe on Facebook, Gutierrez told Doe he was scared and all they could do was meet; and Doe's statement to the Detective on November 6, 2012, that Gutierrez declined to send her nude photographs.

After not talking for a couple months during the summer of 2012, Gutierrez Messaged Doe on September 29, 2012. Apparently, Doe had changed her profile to married. Early in the conversation, Gutierrez asked and Doe confirmed she had a boyfriend. Gutierrez asked 15-year-old Doe if she was still a "virgin," and he counseled her on birth control and protecting herself. A little later, Gutierrez said that when Doe turned 18 years old he would "take good care of [her]." Later, he added that he loved her and he fantasized about taking her to Las Vegas and getting married after she turned 18 years old. The following week Doe contacted Gutierrez and suggested meeting; Gutierrez agreed to meet.

On November 7, 2012, the Detective, posing as Doe, contacted Gutierrez. Over the course of the next three weeks, Gutierrez suggested meeting Doe and made numerous sexually suggestive comments to her. On November 20, 2012, Doe sent Gutierrez a Message apologizing for not being able to meet that weekend. Gutierrez answered Doe the following: "that's ok, honestly I am thinking we cant do anything more than meet. I have to much to lose. it scars me. I like you but think its best to wait for everything, and just meet and hang out when we get a chance[.]"

We agree with the trial court that the Detective should have included in the affidavit Gutierrez's statement on November 20 declining to do anything other than meet 15-year-old Doe. This was relevant to the crime of arranging to meet a minor for lewd purpose (§ 288.4, subd. (a)(1)). However, the Detective was also investigating the crime of contacting a child with the intent to commit a lewd act (§ 288.3, subd. (a)), and the affidavit included facts demonstrating that crime was complete before November 20. Had the Detective included the omitted statement, the affidavit still established there was probable cause to search for evidence Gutierrez contacted Doe with the intent to commit a lewd act. The affidavit included facts demonstrating Gutierrez knew Doe was a minor, communicated with her about sexual matters, fantasized about her, and agreed to meet her all before November 20. Thus, even had the Detective included the omitted statement, there was not a substantial possibility it would have altered the trial court's probable cause determination.

Finally, that Gutierrez refused to send Doe explicit photographs had no bearing on whether there was probable cause to investigate the crime of contacting a child with the intent to commit a specified crime. Thus, even with the omitted material included, the search warrant affidavit demonstrated sufficient probable cause to search Gutierrez and his home. (People v. Scott (2011) 52 Cal.4th 452, 483 [sufficient probable cause requires showing fair probability contraband or evidence of crime found in particular place].) The trial court did not err by denying Gutierrez an evidentiary hearing on the Franks motion.


The judgment is affirmed.