Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CF3268 David A. Thompson, Judge.
Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
After the court denied his motion to suppress evidence (Pen. Code, § 1538.5) defendant Javier Cabrera Ruiz pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and participation in a street gang (Pen. Code, § 186.22, subd. (a)). According to the terms of the negotiated plea the court suspended imposition of sentence and placed him on three years’ probation, which included several gang-related terms. Defendant contends the suppression motion should have been granted because the search warrant was stale and that some of the gang terms should be modified. Using our authority under Penal Code section 1260 we modify some of the probation terms but otherwise affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In July 2007 a confidential informant told Miguel Cuenca, a detective with the Orange Police Department, that defendant was selling methamphetamine from his home. Later the same month Cuenca again met with the informant who reiterated that defendant was selling methamphetamine from his home. The informant told Cuenca he had purchased methamphetamine from defendant many times in the past and that it was packaged in ziplock plastic bags of varying sizes. The informant agreed to make a controlled buy of the drug from defendant.
Cuenca’s records check produced a field identification card and picture of defendant. The informant positively identified defendant from the picture. Other police personnel advised Cuenca defendant was an active gang member and confirmed defendant lived at the address the informant had given Cuenca. Later in August the informant made the controlled purchase of methamphetamine from defendant.
The informant provided additional information that was set out on Exhibit A to the probable cause statement executed by Cuenca. The statement was sealed.
On September 11, based on the informant’s information, the controlled purchase, and Cuenca’s opinion there was likely to be contraband at defendant’s residence, a search warrant was issued for defendant’s home; it was executed on September 21. Police found several bags of methamphetamine and another bag containing a substance used to cut methamphetamine. They also found over 60 empty ziplock bags, a scale, a gang bandana, and a tablet containing gang graffiti. In a police interview defendant admitted the narcotics and the bandana were his and that he had written the gang graffiti. Based on all those facts Cuenca concluded defendant possessed the methamphetamine for sale and another detective determined defendant was an active member of the gang Orange County Criminals (OCC).
Defendant filed a motion to unseal the search warrant affidavit, quash the warrant, and suppress the evidence, arguing there was no probable cause for the search warrant, in part because the information on which it was based was stale. At the hearing on the motion the court reviewed the probable cause statement and supporting exhibit in camera. The transcript of the court’s review was sealed. The court found the identity of the informant should be kept confidential and on that basis certain parts of the attachment should remain sealed. It also found a large portion could be revealed and a redacted version was given to defense counsel. Attachment A stated the informant’s buy occurred in August 2007.
Defendant’s lawyer argued that even if Cuenca testified in camera as to the date of the buy, unless the exact date was contained in the sealed affidavit, the court could not rely on that date to show the warrant was not stale. The prosecution argued that even using August 1 as the date of the purchase, the 41-day period before the warrant issued was still a reasonable time and further that, the police relied on the warrant in good faith.
The court denied the motion, stating that there was sufficient probable cause to support the warrant; it specifically did not make a finding as to good faith.
DISCUSSION
1. Validity of Search Warrant
Defendant attacks the search warrant on the ground it was stale. The affidavit of probable cause stated the controlled drug buy was in August 2007 and the warrant was obtained on September 11, 2007. According to the affidavit the controlled buy was in August. Without any more specific information that means it occurred between August 1 and August 31. Because defendant does not know the exact date, he assumes it was August 1 and therefore 41 days before the warrant was issued. On that basis he argues it was stale.
But the sale could have occurred anywhere between 11 and 41 days before the magistrate issued the search warrant. The issue of staleness is reviewed on a case-by-case basis. (People v. Gibson (2001) 90 Cal.App.4th 371, 380.) Although there is no bright line test and generally anything past 30 days is considered stale, 11 days is within a reasonable time. (See, e.g., People v. Hernandez (1974) 43 Cal.App.3d 581, 586 [under facts of case, 12-day delay, while “on the fringe,” not unreasonable].)
While a 41-day delay alone may make the information supporting the warrant stale, we have evidence of continuing conduct. The attachment to the affidavit reveals the informant purchased methamphetamine from defendant “numerous times in the past.” Even though the affidavit does not state when those prior sales occurred, the information does show a continuing course of conduct and it is reasonable to believe the sales were current. (People v. Cleland (1990) 225 Cal.App.3d 388, 392 [magistrate may draw inferences from affidavit].)
“[T]he total circumstances surrounding... criminal conduct can, without more, support a magistrate’s probable cause finding that the culprit’s home is a logical place to search for specific contraband.” (People v. Koch (1989) 209 Cal.App.3d 770, 779, disapproved on another ground in People v. Weiss (1999) 20 Cal.4th 1073, 1075.) Information that a defendant has sold illegal drugs in combination with the opinion of an experienced narcotics officer that drug related contraband will be found at the defendant’s residence justify issuance of a warrant. (People v. Cleland, supra, 225 Cal.App.3d at pp. 390-391, 393 [search warrant proper based on evidence drugs and cash found on defendant and narcotics officer’s expert opinion contraband probably at defendant’s residence].)
Here we have such evidence. The controlled buy followed numerous prior purchases by the informant. In addition, in the affidavit supporting the warrant Cuenca set out his experience as a narcotics officer and his opinion that drug dealers usually keep their drugs and paraphernalia associated with drug sales, including pay sheets, packaging, cutting agents, and the like, at their homes. Thus, this case is different from People v. Hulland (2003) 110 Cal.App.4th 1646, on which defendant relies. In addition to a 52-day gap between the time of the controlled buy and issuance of the search warrant, there was no information supporting an inference the defendant had ever previously sold drugs or kept them at his residence. (Id. at p. 1652-1653.)
Based on the totality of the circumstances we cannot say as a matter of law that the warrant was defective because based on stale information. (People v. Leyba (1981) 29 Cal.3d 591, 597 [reasonableness of search question of law].)
Moreover the police executing the warrant relied on it in good faith. In United States v. Leon (1984) 468 U.S. 897 [104 S.Ct. 3405, 82 L.Ed.2d 677] the court stated that although “‘a warrant issued by a magistrate normally suffices to establish’ that a law enforcement officer has ‘acted in good faith in conducting the search’ [citation],” the officer must objectively rely in good faith on the determination of probable cause. (Id. at p. 922.) If “a reasonably well trained officer” would have realized a search was illegal despite the warrant (id. at p. 922, fn. 23), the search cannot be upheld. There are generally four instances where the good faith exception would not apply: (1) if the magistrate who issued the warrant was misled by information in the affidavit known to be false by the declarant; (2) the magistrate “wholly abandoned his judicial role”; (3) the affidavit was “‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable’ [citations]”; or (4) the warrant is facially deficient. (Id. at p. 923; see also People v. Camarella (1991) 54 Cal.3d 592, 596.)
Again relying on People v. Hulland, supra, 110 Cal.App.4th 1646 where there was a 52-day delay, defendant argues that waiting 41 days to obtain the warrant without explaining why falls within the last exception. But as discussed above, there was sufficient information to support issuance of the warrant. Therefore, despite the fact the trial court did not make a finding as to good faith, the record supports such a determination and we will affirm a ruling if it is correct on any legal ground. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
2. Probation Conditions
As part of his plea agreement defendant agreed to abide by gang conditions contained in two standard forms. His notice of appeal limited the issue to denial of the motion to suppress and did not attack the validity of the plea or the sentence and he did not obtain a certificate of probable cause.
Without discussing the lack of a certificate of probable cause, however, in his opening brief defendant argued certain gang-related probation conditions must be modified to be more specific. Number 22 in the Orange County Superior Court probation terms and conditions form reads: “Do not, in any manner, directly or indirectly, initiate contact with, nor have any communication with: OCC gang members.” The plea agreement also incorporated the probation department’s gang terms, which include: “9. Your associates are to be approved by your probation officer. You are not to associate with anyone whom you have met while in any of the County Institutions. You are not to associate with any member of the __________ gang or any other gang as directed by your probation officer”; “19. Do not wear, display, use or possess any insignia, emblem, button, badge, cap, hat, scarf, bandana or any article of clothing which is evidence of affiliation with or membership in the OCC street gang”; and “22. Have no contact with OCC gang members.”
In its initial brief the Attorney General agreed these conditions should be rewritten to contain a term that defendant have knowledge of what the provisions required of him. (In re Sheena K. (2007) 40 Cal.4th 875, 890 [“probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated’”].) It too did not raise the issue of a certificate of probable cause.
In a supplemental brief we requested, defendant argues he did not need to obtain a certificate of probable cause because it is only necessary where the challenge goes to the validity of the plea, not where, as here, he seeks only a modification of some terms that “will in no way undermine the substance of the plea agreement[]... [but] will further secure the validity of the plea agreement by making the probation conditions lawful, enforceable, and consistent with the intent of the parties.” “In determining whether [Penal Code] section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.]” (People v. Panizzon (1996) 13 Cal.4th 68, 76.) Here defendant does not challenge the sentence or the substance of the plea but only the breadth of some conditions. But this does not dispose of the issue of the failure to include this issue in the notice of appeal.
The Attorney General’s supplemental brief did not shed any light on the question. It erroneously bases its argument that the appeal should be dismissed, a complete reversal of its original concession that certain terms should be modified, on the claim defendant was seeking to strike some of the probation conditions without having obtained a certificate of probable cause. Defendant only seeks to modify the terms of some conditions to make them more precise.
Nevertheless, we agree with defendant that the specific probation terms set out above are too broad because they do not contain a knowledge element. Penal Code section 1260 gives us the authority to “modify a judgment... appealed from....” Despite the procedural problems discussed above, in this limited instance we choose to amend certain probation terms to insert knowledge provisions and thus ensure they are enforceable.
Paragraph 22 of the superior court’s probation conditions is modified to read: “22. Do not, in any manner, directly or indirectly, initiate contact with, nor have any communication with: OCC gang members known to you.” The following probation department conditions are modified as follows: “9. Your associates are to be approved by your probation officer. You are not to associate with anyone whom you have met while in any of the County Institutions. You are not to associate with anyone you know to be a member of the OCC gang or any other gang as directed in advance by your probation officer.” “19. Do not wear, display, use or possess any insignia, emblem, button, badge, cap, hat, scarf, bandana or any article of clothing which you know is evidence of affiliation with or membership in the OCC street gang.” “22. Have no contact with anyone you know to be an OCC gang member.”
We disagree with defendant’s contention the conditions should be further modified to define the term gang according to the provisions of Penal Code section 186.22, subdivisions (e) and (f). The meaning of gang is well known to “a reasonable person. (People v. Bravo (1987) 43 Cal.3d 600, 607.) Further it is not void because the term gang “‘“may be made reasonably certain by reference to other definable sources[,]”’ [citation],” namely, the statute. (People v. Lopez (1998) 66 Cal.App.4th 615, 630.)
Defendant challenges two other conditions. First, he asserts that the provision banning him from appearing at any court proceeding unless he is a party or a subpoenaed witness violates his constitutional right to attend a trial. He wants it to be modified to bar him from only gang-related trials, which, he argues, would fulfill the assumed purpose of the condition, to prevent witness intimidation. (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1502.) But we agree with the Attorney General that allowing him to attend any non-gang related trial would give him the opportunity to intimidate witnesses in other parts of the courthouse. Probation conditions that restrict constitutional rights are to be narrowly tailored and restricted to purposes of reform and rehabilitation. (People v. Jungers (2005) 127 Cal.App.4th 698, 703-704.) The condition here meets those criteria.
Finally, defendant argues the condition that prevents him from possessing “pens, etching devices, or any other instruments useable in applying graffiti” is overbroad because possessing a writing utensil is not a crime nor does it show his intent to apply graffiti and he needs to have a pen to perform everyday tasks. He also claims the condition infringes on his constitutional right to freedom of speech. He suggests the term should be modified to merely prevent him from writing or assisting in the application of graffiti. But a probation condition is to be interpreted as it would be understood by a reasonable person (People v. Olguin (2008) 45 Cal.4th 375, 382) and it is not reasonable to construe it to mean defendant cannot possess a pen to write a check or a letter to an elected official.
DISPOSITION
Probation condition number 22 in the Orange County Superior Court form of probation terms and conditions and condition numbers 9, 19, and 22 in the Orange County probation department form shall be modified as set forth in the opinion. In all other respects the judgment is affirmed.
WE CONCUR: SILLS, P. J., IKOLA, J.