Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA062995, Andrew C. Kauffman, Judge.
Marilee Marshall & Associates and Jennifer Peabody, 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, Assistant Attorney General, Victoria B. Wilson and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, William Arthur Clark, appeals from the judgment entered following his conviction, by jury trial, for possession of a firearm by a felon, possession of a controlled substance (2 counts) and manufacturing a controlled substance, with arming, prior prison term, prior serious felony conviction and prior drug offense findings (Pen. Code, §§ 12021, 12022, 667.5, 667, subd. (b)-(i); Health & Saf. Code, §§ 11350, 11379.6). Sentenced to state prison for 30 years, Clark claims there was trial and sentencing error.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
Following the denial of his motion to suppress evidence, a jury convicted Clark based on evidence that, upon executing a search warrant at his apartment, police discovered Clark was involved in manufacturing rock cocaine. Because the only trial issue relates to the denial of his suppression motion, the following facts concern the adequacy of the search warrant affidavit.
According to the affidavit, the police relied on an untested confidential informant who reported having purchased cocaine from Clark. The police ran a criminal history check on Clark and determined he had seven felony convictions, mostly involving possession, sales or distribution of illegal drugs.
The confidential informant claimed an ability to make future cocaine purchases from Clark. Detective Wayne Lewis questioned the informant about the appearance, price, use and effect of various street drugs. The informant’s answers demonstrated knowledge of drugs, including cocaine. Lewis decided to conduct a controlled buy. The informant was thoroughly searched and provided with money for the buy. Another officer, Detective Charles, accompanied the informant to the entrance gate of Clark’s apartment complex and maintained continuous visual surveillance as the informant waited for Clark. Charles saw Clark meet the informant and the two of them go into the apartment complex, where they disappeared from his view. According to the search warrant affidavit, the informant “returned moments later, alone and walked in the opposite direction back to the same entrance.” Detective Charles escorted the informant back to where Detective Lewis was waiting. The informant produced a quantity of white powder which Lewis recognized as cocaine. The informant reported having purchased this cocaine from Clark inside his apartment. The substance tested positive for powder cocaine.
After obtaining a search warrant, the police searched Clark’s apartment and found 44 grams of rock cocaine, 244 grams of powder cocaine, and 110 grams of compressed cocaine powder. In his pocket, Clark had $3,100 in small denominations. Three beakers inside the kitchen stove tested positive for cocaine. Clark had two loaded guns in his bed, and he had rigged up three surveillance cameras.
CONTENTIONS
1. The trial court erred by denying Clark’s motion to suppress evidence.
2. The trial court erred by refusing to dismiss Clark’s prior Three Strikes conviction.
DISCUSSION
1. Trial court properly denied the suppression motion.
Clark contends his Fourth Amendment rights were violated because there was no probable cause for the issuance of a search warrant. This claim is meritless.
a. Legal principles.
Illinois v. Gates (1983) 462 U.S. 213, characterized the probable cause requirement as follows: “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . ., including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Id. at p. 238.) “Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same – and so are law enforcement officers.” (Id. at pp. 231-232.)
“The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. . . . In a pre-Proposition 8 case, we stated: ‘In determining the sufficiency of an affidavit for the issuance of a search warrant the test of probable cause is approximately the same as that applicable to an arrest without a warrant, . . . [citations], namely, whether the facts contained in the affidavit are such as would lead a [person] of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the guilt of the accused.’ [Citation.] The magistrate’s determination of probable cause is entitled to deferential review. [Citations.]” (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.)
“[S]ince voter approval of Proposition 8 in June 1982, state and federal claims relating to exclusion of evidence on grounds of unreasonable search and seizure are measured by the same standard.” (People v. Camacho (2000) 23 Cal.4th 824, 830.)
b. Discussion.
Noting that “during the course of the controlled buy, officers lost sight of the confidential informant and never witnessed the informant entering appellant’s apartment, which is located in the rear second floor of a 500-unit apartment building,” Clark argues the search warrant affidavit did not establish probable cause. We disagree.
Gates established a common sense approach to questions of probable cause. In the context of a controlled drug buy, this means there is no requirement the police observe every second of the apparent drug transaction. As explained by United States v. Sidwell (7th Cir. 2006) 440 F.3d 865, 869, fn. omitted: “Generally, a controlled buy, when executed properly, is a reliable indicator as to the presence of illegal drug activity. The district court correctly determined that the controlled buy was adequate to support such a conclusion in this case: the confidential informant entered the building without contraband; exiting moments later, he produced cocaine, indicating the probable – if not likely – presence of illegal drug activity in the apartment. [¶] Mr. Sidwell, however, submits that the buy was not actually ‘controlled’ because the police were unable to see the confidential informant after he entered the apartment building. Therefore, he submits, the informant could have purchased the cocaine from any person in any unit in that building. This scenario is theoretically possible. Nevertheless, it does not negate the existence of probable cause. [Citation.].” (See also United States v. Garcia (1st Cir. 1993) 983 F.2d 1160, 1167 [“[Defendant argued] the informant might have stashed cocaine elsewhere in the building out of the sight of the detective. This possibility, defendant posits, undercuts the reliability of the informant. Although defendant’s argument is possible, it is not probable and strains credulity on a common-sense reading.”].)
Our Supreme Court used the same reasoning in a case, like the one here, where the controlled buy was made by an untested confidential informant. In People v. Gonzalez (1990) 51 Cal.3d 1179, the search warrant affidavit described how an officer drove the untested confidential informant to the suspect’s house and “saw the informant speak briefly in the backyard to a man meeting [the suspect’s] description, after which the informant returned to the [officer’s] car, removed a balloon from his mouth and handed it to [the officer].” (Id. at p. 1206, fn. 2.) In his suppression motion, the defendant claimed the search warrant affidavit was deficient because the officer “did not actually see a sale transaction.” (Id. at p. 1207, fn. 3.) But, because the search warrant affidavit established the confidential informant had been searched before and after the controlled buy, Gonzalez concluded “[t]here was ample basis for the logical inference that [the suspect] had sold narcotics to the informant immediately outside [the suspect’s address].” (Ibid; see also Commonwealth v. Warren (Mass. 1994) 635 N.E.2d 240 [controlled buy affirmed reliability of untested informant where officer saw informant enter defendant’s building, but did not see which of three apartments the informant entered].)
The trial court here did not err by finding the search warrant affidavit provided probable cause for issuance of the search warrant.
2. Trial court properly refused to dismiss the Three Strikes allegation.
Clark contends the trial court erred by refusing to dismiss, for Three Strikes purposes under the authority of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, his conviction for armed robbery in 1974. This claim is meritless.
The factors to be considered in ruling on a Romero motion were set forth in People v. Williams (1998) 17 Cal.4th 148, 161: “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, 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.”
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 375.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 376.)
There is no doubt the trial court here was aware of its discretion in this matter. The record shows the court carefully weighed all the relevant factors, which included both the age of Clark’s strike prior and his subsequent non-violent criminal history, which included convictions for selling or transporting marijuana (1978), grand theft (1984), possession of marijuana (1987), possession of cocaine base for sale (1989), possession of a controlled substance (1991), possession of cocaine base for sale (1992), possession of drug paraphernalia (1997), petty theft with a prior (1998), being under the influence of a controlled substance (2003).
Clark’s recidivism was a sufficient basis for denying his Romero motion. (See People v. Strong (2001) 87 Cal.App.4th 328, 338 [“the overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career”]; see also People v. Carmony, supra, 33 Cal.4th at p. 376 [“ ‘[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance’ ”].)
Clark’s apparent assumption that substance abuse must always be viewed as a mitigating factor is incorrect. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1511 [“The record demonstrates defendant has had lifelong problems with alcohol and drugs. However, drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.”]; In re Handa (1985) 166 Cal.App.3d 966, 973-974 [“Drug use or drug addiction at the time of an offense is an example of a disputable factor in mitigation. The sentencing court may find that drug use did not significantly affect the defendant’s capacity to exercise judgment or, in the case of an addiction of long standing, that the defendant was at fault for failing to take steps to break the addiction.”].)
The trial court here told Clark: “It is true that your strike is from 1974. It is true that that is your only crime of violence. But since 1974, with some minor exceptions, you’ve been continuously on probation, on parole, or in prison or in the county jail. [¶] You’ve been convicted of six separate felonies. You’ve been to prison four times.” The trial court concluded Clark had been given “ample opportunities to address your drug addiction,” but had failed to take advantage of those opportunities. The trial court did not abuse its discretion when it denied Clark’s Romero motion. (See People v. Carmony, supra, 33 Cal.4th at p. 377 [“trial court does not abuse its discretion [in denying Romero motion] unless its decision is so irrational or arbitrary that no reasonable person could agree with it”].)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.