Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Judith L. Champagne and Francis J. Hourigan III, Judges, Los Angeles County Superior Ct. No. YA067318
Dennis L. Cava, 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 Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Raymond Earl Boyd appeals from the judgment entered following a jury trial in which he was convicted of possession of more than one ounce of marijuana (Health & Saf. Code, § 11357, subd. (c)), vandalism causing damage in excess of $400 (Pen. Code, § 594, subds. (a), (b)(1)), and six counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)). Boyd contends the trial court erred by failing to stay his sentence on five firearm counts and denying his motions to traverse the search warrant and dismiss added counts on the basis of vindictive prosecution. We conclude that the trial court erred by imposing separate sentences for each gun appellant possessed and in the calculation of the court security fee, but otherwise affirm.
Unless otherwise noted, all subsequent statutory references pertain to the Penal Code.
FACTS
Police officers investigating the January 19, 2007 murder of Joseph Watson learned that Tamaris Dabney argued with Watson and threatened to “get” him a few hours before Watson was shot. The officers also learned that Donald Jones was with Dabney at the time of the argument. On January 29, the officers interviewed Jones, who had been arrested on a juvenile probation violation warrant. Jones told the officers that Dabney said he had given his nine-millimeter handgun to appellant because he was afraid that the police were going to question him about Watson’s murder.
Unless otherwise noted, all subsequent date references pertain to 2007.
The officers went to appellant’s home on January 29, told him they had information that the nine-millimeter gun used in Watson’s murder might have been given to him, and asked him for consent to search his house for the gun. Appellant refused consent, slammed his metal screen door, and dropped his keys through the mail slot into the house, thereby locking himself and the officers out of the house. Because appellant was visibly angry, officers handcuffed him and placed him in the back of a patrol car.
The officers obtained a warrant to search appellant’s home. They did not find a nine-millimeter handgun in the ensuing search, but they instead found and seized marijuana, two loaded revolvers, one Glock semi-automatic handgun, two rifles, and a shotgun. The guns were all located in the bedroom closet. The closet also contained a bag holding two empty magazines for the Glock and assorted ammunition. Appellant made a telephone call to an individual named “Green Jeans” while in county jail. During this call, which was monitored by Detective Anderson, appellant stated that the seized guns belonged to him. Appellant admitted his prior felony conviction for the purpose of the section 12021, subdivision (a)(1) charges.
While appellant was in the patrol car, he kicked out one of its back windows and bent the door frame.
Appellant and his son testified they both lived in the house. Appellant testified that he knew the shotgun and the .22 and .38 caliber handguns were in the closet in his son’s bedroom, but he did not have access to the bedroom and did not know about the other guns. Appellant’s father had given him the shotgun, which had been in the family for generations and was used to shoot rabbits, and the .38. Appellant’s son testified the guns were his, except for the .40 caliber Glock handgun which belonged to his cousin, who owned the house. Appellant testified he smoked cannabis and used it to make butter, but did not sell it. Appellant explained that the deputies put him into the patrol car with the windows up and ignored him. He kicked to attempt to get the deputies’ attention because the handcuffs were cutting into his arms.
Lionel Jones testified that his family owned the house the police searched. Appellant and Jones’s cousin, Raymond Boyd, Jr., lived in that house. The Glock the police seized belonged to Jones. Because Jones had a teenager in the house, he asked his cousin to store the Glock for him.
Appellant unsuccessfully moved to traverse the search warrant and suppress all of the seized evidence on the ground the affidavit contained misstatements and omitted material facts. Appellant also unsuccessfully moved to dismiss on the ground of vindictive prosecution after the prosecutor filed an amended complaint that included five additional counts alleging possession of a firearm by a convicted felon.
The original information alleged a single count of possession of a firearm by a felon.
The jury convicted appellant of possessing more than one ounce of marijuana, as a lesser included offense of possession of marijuana for sale; vandalism causing damage in excess of $400; and six counts of possession of a firearm by a convicted felon. The trial court found appellant had suffered a prior serious or violent felony conviction within the scope of the Three Strikes Law, but granted appellant’s motion to strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court sentenced appellant to an aggregate term of two years eight months, consisting of two years for one count of firearm possession, concurrent two-year terms for the remaining five firearm counts, eight months for vandalism, and a concurrent term of 44 days for misdemeanor possession of marijuana.
DISCUSSION
1. Motion to traverse the warrant
Appellant contends the trial court erred by denying his motion to traverse the search warrant and suppress the seized evidence. The motion asserted that the affidavit included six statements of fact that were either intentionally false or made with reckless disregard for the truth, and that it omitted facts showing that the informant and his information were reliable. We address each category separately.
Misstatements
“Under Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 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.” (People v. Panah (2005) 35 Cal.4th 395, 456 (Panah).) An innocent or negligent misrepresentation is insufficient. (Ibid.) The affidavit is presumed to be valid. (Ibid.) The defendant’s motion for an evidentiary hearing must be supported by an offer of proof. (Ibid.) The defendant should provide affidavits or otherwise reliable statements of witnesses or explain the failure to do so. (Ibid.) The trial court is not required to conduct an evidentiary hearing if the defendant’s attack on the affidavit is conclusory and simply based upon a desire to cross-examine. (Ibid.)
Appellant’s motion asserted that the following statements in Detective Todd Anderson’s affidavit were false: 1) Dabney gave the gun to his neighbor across the street; 2) the neighbor who now had Dabney’s gun was an older Black male known as “Rainbow,” who was about 50 years old and had grey braided hair; 3) the police “knocked on the door and it was answered by a male Black with grey braided hair who identified himself as ‘Rainbow’”; 4) appellant stepped out of his residence and the police explained their purpose and requested appellant’s consent to search for the gun; 5) appellant “immediately became evasive, uncooperative, and belligerent”; and 6) appellant “locked his front door and placed his house keys into the mail slot.”
Appellant’s motion was not supported by an offer of proof. It was based on nothing more than defense counsel’s declaration asserting that the challenged statements were false. Notably, counsel neither stated that she was present when the officers visited appellant’s home nor set forth any other facts showing her personal knowledge of the purported falsity of the challenged statements. Appellant made no offer of proof at the hearing on the motion. Indeed, counsel admitted that potential cross-examination of Anderson was the only basis upon which she might be able to demonstrate the falsity or recklessness of the challenged statements. This was an inadequate showing. The trial court was not required to conduct an evidentiary hearing.
On appeal, appellant argues that Anderson’s failure to restate certain matters from the affidavit in his trial testimony shows that the statements in the affidavit were false or reckless. Obviously, Anderson’s trial testimony was not before the court when it ruled upon appellant’s motion. Moreover, Anderson’s failure to repeat the contents of his affidavit at trial does not show that the statements in the affidavit were false or recklessly made. Probable cause for the warrant was irrelevant at trial, and counsel elicited scant testimony on the point. Nothing at trial demonstrated the falsity or recklessness of the challenged statements.
Similarly, appellant argues that the probation report demonstrates the falsity of Anderson’s statement in the affidavit that appellant had “an extensive arrest record for weapons violations, burglaries, and crimes of violence.” Appellant did not assert this ground in his motion and therefore failed to preserve it for appellate review. Furthermore, appellant made no offer of proof on this point. He presumably knew his own criminal history and therefore could have provided a declaration or testimony pointing out any inaccuracies. Alternatively, he could have asked the court to compare Anderson’s statement regarding appellant’s criminal history with the pre-conviction probation report, which appears to have been prepared about five months before the hearing on appellant’s motion to traverse. Appellant failed to do any of these things, and cannot attack the trial court’s ruling on his motion on this ground.
The probation report indicates that appellant had an extensive arrest record, mostly for Vehicle Code violations, but had also been convicted of assault with a firearm, battery on a peace officer, inflicting injury on a spouse or cohabitant, and possession of a controlled substance. He also had a juvenile adjudication for armed robbery.
Omissions
Appellant’s motion further asserted that the affidavit was inadequate because it omitted “facts which would demonstrate that the informant and his alleged information is reliable.” He argued that the “conditions surrounding Jones’s statement to investigators would tend to show the statement to be unreliable.”
A defendant who challenges a search warrant on the basis of omissions from the supporting affidavit bears the burden of showing that the omissions were material to the determination of probable cause. (Panah, supra, 35 Cal.4th at p. 456.) Omitted facts are material if “their omission would make the affidavit substantially misleading. ... [F]acts must be deemed material ... if, because of their inherent probative force, there is a substantial possibility they would have altered a reasonable magistrate’s probable cause determination.” (People v. Kurland (1980) 28 Cal.3d 376, 385 (Kurland).) An affiant who knows or should know specific facts bearing adversely on the informant’s probable accuracy (e.g., police threats or coercion), must disclose those facts. (Id. at p. 395) However, an affiant need not include details of the criminal history of a “garden-variety” police informer: “[I]n most cases, the issue of possible unreliability is adequately presented to the magistrate when the affidavit reveals that the affiant’s source of information is not a ‘citizen-informant’ but a garden-variety police tipster. In such circumstances, predictable details of the informer’s criminal past will usually be cumulative and therefore immaterial.” (Id. at p. 394.)
Anderson’s affidavit sets forth facts regarding Watson’s murder, including statements by Watson’s family members that Jones accompanied Dabney when Dabney argued with Watson and threatened to “get” him. It noted that both Jones and Dabney were “known and documented ‘107 Hoover Crips’ gang members.” Regarding the information obtained from Jones, the affidavit stated the following:
Since the parties are in agreement regarding the contents of the affidavit, we have relied upon their recitation of its contents.
“On January 29, 2007, Investigators interviewed Donald Jones who had been arrested on a ‘no bail’ juvenile probation warrant. Donald Jones told investigators that he witnessed the argument after Dabney had called Victim Watson’s mother a ‘bitch.’ He said that Dabney had threatened to ‘get’ Victim Watson. Later that evening Dabney told Donald Jones when Victim Watson left his house, he would ‘get’ him. Donald Jones then left Dabney and went to a girlfriend’s house nearby. A short time later he heard several shots fired and went outside. He walked to the crime scene and was told by neighbors that Victim Watson had been shot. Even though Dabney’s residence is in close proximity to the crime scene, he did not see Dabney that night.
“He said that about two weeks ago, a short time prior to the murder, he was visiting at Dabney’s house and Tamaris Dabney showed him a 9mm silver colored handgun with black grips. He said that Dabney kept the gun under his mattress in his bedroom.
“Donald Jones did not see Dabney in the area again until several days ago. Dabney told Donald Jones that he had been confronted by Victim Watson’s family members several days prior and they had accused him of being involved in the murder. Dabney told Donald Jones that he was afraid that the police would come question him, so he gave his 9 mm handgun to a neighbor who lived across the street from Dabney.
“Donald Jones described the location as a rear eastern most duplex across the street from Dabney’s residence. He said that the male who now had Dabney’s 9 mm handgun was an older Black male, approximately 50 years old with grey braided hair and that he was known only as ‘Rainbow.’”
The affidavit then described officers’ visit to appellant’s house, which was noted to be “directly across the street from Dabney’s residence.” The officers knocked on the door and appellant opened it. The affidavit stated that appellant was “a male Black with grey braided hair who identified himself as ‘Rainbow.’” Appellant stepped out of the house, and the officers explained the purpose of their visit and asked for appellant’s consent to search the house for the gun. Appellant “denied having been given a gun and immediately became evasive, uncooperative and belligerent.” Appellant told the officers they would have to obtain a warrant and “locked his front door and placed his house keys into the mail slot.”
Anderson’s affidavit clearly sets forth the reasons for doubting Jones’s credibility: he was interviewed in jail, he was incarcerated as a result of a “‘no bail’ juvenile probation warrant,” he was a “known and documented” member of the same street gang Dabney belonged to, and he was with Dabney when the altercation and threat occurred. The magistrate was thus sufficiently warned that Jones was not a “citizen-informant” and advised of the particular bases for drawing adverse inferences regarding Jones’s credibility. This was sufficient under Kurland, supra, 28 Cal.3d at p. 394, absent proof that Anderson knew or should have know of other matters that detracted from Jones’s probable accuracy.
Appellant raises a number of purported omissions on appeal, such as why Jones was in custody on a no-bail probation violation, whether he was a witness or a suspect in the murder of Watson or any other crime, whether he was offered anything in return for the information he gave, and whether Anderson had any reason to believe that Jones was not one of the two assailants seen running from the scene of Watson’s murder. All of appellant’s points are questions that naturally arise from matters that were set forth in the affidavit. The magistrate was therefore on notice that Jones may have provided information to the police in response to police pressure or that he may have been motivated by “revenge, braggadocio, self-exculpation, or the hope of compensation.” (Kurland, supra, 28 Cal.3d at p. 393.) Apart from the issues of why Jones was in custody and the possibility that he was involved in Watson’s murder, these points were not raised in the trial court and therefore have not been preserved for appellate review. Moreover, because all of appellant’s points remain unanswered questions, he has not shown that there is a substantial possibility that addressing them in the affidavit would have altered the magistrate’s probable cause determination.
Furthermore, the police did not seek a warrant based solely upon the information Jones provided. They went to appellant’s home and verified certain details provided by Jones, such as the location of appellant’s house, appellant’s physical description, and the nickname with which appellant identified himself. These facts were set forth in Anderson’s affidavit and they partially corroborated Jones’s information. In addition, the affidavit described the officers’ conversation with appellant. Appellant became evasive and belligerent when detectives told him that they had been told he had Dabney’s gun. Although appellant was legally justified in refusing to consent to a warrantless search, his sudden change in demeanor and drastic response of locking himself and the officers out of the house were properly considered with Jones’s statements in determining whether probable cause existed.
Accordingly, appellant failed to make the required substantial showing that Anderson’s affidavit falsely stated facts or omitted material facts. The trial court did not err by denying him an evidentiary hearing or denying his motion to traverse the search warrant and suppress evidence.
2. Motion to dismiss for vindictive prosecution
Although six guns were recovered during the search of appellant’s home, the March 2 Information charged him with a single count of possession of a firearm by a convicted felon. On August 17, shortly before trial was scheduled to begin, the prosecutor filed a First Amended Information which alleged five additional counts of possession of a firearm by a convicted felon. The trial court questioned the timing of the amendment and asked whether there was any new evidence. The prosecutor admitted that the evidence had been known at all times, but there were initially no charges based upon five of the recovered guns. He continued, “We made an offer, good faith. The offers that we made were turned down. The fact that those weapons existed were [sic] known at all times. It could have been charged initially. We tried to settle the case. We were unable to do that. We’re going to trial, and at that trial all five weapons are going to come into evidence, and there is no reason that they shouldn’t each be separately charged. He had the opportunity to settle the case and chose not to. … The fact that he has five [sic] guns, an ex-con, doesn’t mean he should be treated more lightly, means he should be treated more severely. The jury’s going to find out about all five [sic] weapons. We didn’t charge him because we were attempting to settle the case. They were all testified to in the prelim. They have been known from the police reports from day one. They each constitute a separate offense.”
Appellant objected to the amendment and subsequently moved to dismiss the new counts or the entire action on the ground of vindictive prosecution. His motion argued, inter alia, that the prosecutor admitted he filed the additional counts because appellant rejected a plea offer. The trial court denied the motion.
Defense counsel insisted no plea offer had been made, but the court’s March 2 minute order indicates appellant rejected an offer of an “indicated sentence.” Appellant was represented by a different attorney at that time.
Appellant contends that the trial court erred by denying his motion to dismiss the five added counts of possession of a firearm by a felon. He argues that the prosecutor’s explanatory statements provided objective proof that the counts were added to punish appellant for exercising his constitutional right to a jury trial.
Due process forbids the prosecution from taking certain actions against a criminal defendant, such as increasing the charges, in retaliation for the defendant’s exercise of constitutional rights. (People v. Jurado (2006) 38 Cal.4th 72, 98; United States v. Goodwin (1982) 457 U.S. 368, 372, 102 S.Ct. 2485.) Prosecutorial action prior to the commencement of trial is not presumed to be vindictive. (Jurado, supra, 38 Cal.4th at p. 98.) The defendant must instead present evidence showing that the prosecutor’s charging decision was motivated by a desire to punish him or her for exercising his rights (People v. Michaels (2002) 28 Cal.4th 486, 515.) We review the trial court’s denial of the motion to dismiss for abuse of discretion. (People v. Bracey (1994) 21 Cal.App.4th 1532, 1540-1541.)
Because the prosecutor added the five counts prior to the commencement of trial, vindictiveness is not presumed. The prosecutor’s statements did not prove a retaliatory purpose. The prosecutor explained that he initially charged a single firearm possession count to attempt to settle the case. The additional counts could have been charged in the original Information. Their omission was a conscious settlement tactic that failed. Five months later, the prosecutor properly exercised his discretion by filing additional charges that were supported by the evidence that had been introduced at the preliminary hearing and would be introduced at trial. “ ‘ “[A] prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct [because] the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.” ’ ” (People v. Edwards (1991) 54 Cal.3d 787, 828, quoting In re Bower (1985) 38 Cal.3d 865, 874.) Appellant did not establish retaliatory prosecution.
3. Section 654
Appellant contends that section 654 precludes separate punishment for possession of each gun, and that the concurrent sentences for counts 4 through 8 should therefore be stayed. An identical issue is currently pending before the California Supreme Court in People v. Correa, review granted July 9, 2008, S163273.
Penal Code section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (Ibid.) If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) The defendant’s intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Although each gun a felon possesses constitutes “a distinct and separate offense” (§12001, subd. (k)), separate sentences for each gun must nonetheless be supported by substantial evidence of independent criminal objectives. The appellate record does not include such evidence. All of the guns were stored together in a closet. In the absence of anything in the record supporting the trial court’s implicit finding that each gun was possessed for an independent criminal objective, section 654 precludes multiple punishments. The sentences on counts 4 through 8 must be stayed.
4. Court security fee
Respondent contends that the trial court erred by imposing a court security fee of $20, instead of $160 for eight criminal offense convictions.
The correct court security fee under section 1465.8 should be $160 ($20 for each of the eight offenses).
DISPOSITION
The sentences on counts 4 through 8 are stayed. The section 1465.8 court security fee is modified to be $160. In all other respects, the judgment is affirmed. The trial court is directed to issue an amended abstract of judgment reflecting these modifications.
We concur: MALLANO, P. J. ROTHSCHILD, J.