Opinion
NOT TO BE PUBLISHED
Kevin G. DeNoce, Judge, Superior Court County of Ventura Super. Ct. No. 2008016372
Lisa M. J. Spillman, 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, Zee Rodriguez, Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Arthur Tyrone Finnegan appeals the judgment entered after a jury convicted him of possessing heroin for sale (Health & Saf. Code, § 11351) and attempting to destroy evidence (Pen. Code, §§ 664/135). He admitted suffering two prior strike convictions (Pen. Code, §§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A)) and two prior drug-related convictions (§ 11370.2, subd. (a)). The trial court sentenced him to nine years in state prison. He contends the court erred in denying his motion to suppress. He also claims, and the People concede, that the $510 fee imposed under section 11372.7 should be stricken. We shall order the fee stricken. Otherwise, we affirm.
All further undesignated statutory references are to the Health and Safety Code.
FACTS AND PROCEDURAL HISTORY
On April 17, 2008, a search warrant was issued for the residence at 605 Casitas Vista Road in Casitas Springs. The warrant further described the property "as a single story quonset hut type structure with tannish colored wood and metal siding and a rounded metal roof. The residence is located approximately 60 feet east of Casitas Vista Rd and the front door faces north. The front door has a black metal security screen door and the building has a rectangular shaped room addition, located on the north side of the quonset hut where the front door is. A mailbox with the numbers '605', is located near the end of the driveway on Casitas Vista Rd." The preprinted form states the "[a]reas to be searched include all rooms, attics, basements, containers, and other parts therein, the surrounding grounds and any garages, storage rooms, trash containers, and outbuildings of any kind located thereon." The warrant also authorized the search of a person identified as Thomas Robert Young, who was believed to reside at the property.
The statement of probable cause, prepared by Ventura Police Detective Adam Delgado, provided that a confidential reliable informant (CRI) had told the detective he could purchase heroin from a man he identified as "T-Y" at an address in Casitas Springs. The CRI described the man as a six-foot, one-inch tall White male in his 50's with brownish hair. This matched the description of Tom Young, whom the Detective Delgado knew from prior contacts. The CRI was shown a booking photograph of Young and identified him as "T-Y."
After the CRI was given police buy funds and fitted with a wireless transmitter, he was driven to the residence at 605 Casitas Vista Road. Detective Delgado and two other detectives kept the CRI under constant audio or visual surveillance for the duration of the transaction. The CRI went inside the residence through the front door, spoke with "T-Y," and exchanged the buy fund for approximately 6.6 grams of heroin. The CRI returned to one of the detective's vehicles and handed him the drugs. The CRI subsequently made a recorded telephone call to "T-Y" regarding another purchase, and a second controlled buy of 11.80 grams of heroin was conducted.
On the morning of April 22, 2008, Detective Delgado, Detective Craig Kelly, and several other officers executed the warrant at 605 Casitas Vista Road. As Detective Kelly and the other officers were approaching the black metal security door at the front of the building, Delgado saw appellant's girlfriend, April Vanmeter, walking to a car in the driveway. After the detective spoke to Vanmeter, he directed Detective Kelly and the other officers to an open door west of the front door that led to a room addition at the northwestern end of the building. As Detective Kelly approached, he looked through the closed screen and saw the man who had been identified as "T-Y" slam the door shut and lock it from the inside. It was subsequently discovered that "T-Y" was actually appellant, who bears a close physical resemblance to Young.
Detective Kelly yelled, "Police, search warrant," and proceeded to kick the door open. Detectives Kelly and Delgado saw appellant running to the bathroom. Detective Kelly chased appellant and tackled him as he attempted to flush nine bindles of heroin down the toilet. After appellant was arrested and handcuffed, Detective Delgado found another bindle of heroin in a kettle on the kitchen stove. A scale was found on appellant's bed, and two more were found in the garage area. Robert Bratton, who also resided at the property, told the officers that everything in the garage belonged to appellant. Mail addressed to appellant was also found during the search. There was also a television with a closed circuit feed from a camera installed in the garage that showed the driveway area leading to the residence.
The nine bindles appellant attempted to flush down the toilet contained a total of 23.99 grams of heroin. The single bindle found in the kettle weighed.85 grams. The circumstances of the search, the amount and packaging of the heroin, and the scales led Detective Delgado to opine that appellant had possessed the heroin for sale. The detective also noted that appellant had admitted as much to him following his arrest, although he claimed he only sold the drug to his friends for $20 a gram.
William Eugene Boyd testified at trial in appellant's defense. Boyd also lived at 605 Casitas Vista Road, in a detached structure at the back of the property. His daughter owned the property and rented it to appellant, although appellant had no right to use the garage. Vanmeter lived with appellant, and Boyd had seen her at the residence when appellant was not there. According to Boyd, the police searched his residence a week before they searched appellant's and did not show him a warrant or even claim to have one. Boyd conveyed this to appellant before appellant's room was searched.
DISCUSSION
Motion to Suppress
Prior to the preliminary hearing, appellant filed a motion to suppress and to traverse and quash the warrant. After the motion was denied, he renewed the motion in the trial court, contending among other things that the warrant did not authorize the search of the entire premises at 605 Casitas Vista Road. He argued that the room the officers entered and searched was a self-contained apartment he rented from the owner of the property, and that the warrant applied only to the quonset hut to which his apartment was attached. In rejecting that claim, the court reasoned: "It's unfortunate, I suppose, that the officers didn't realize that [appellant] resided in a different part of the Quonset hut located at 605 Casitas Vista Road, but that's neither here nor there. The warrant was not for [appellant's] residence specifically. It was for that Quonset hut at that address. He lived in, apparently, a portion of that other than what the officers thought. [¶] But the factual record before me is that the search was of the place identified in the warrant."
Appellant contends his motion to suppress should have been granted on the ground that the search of his apartment exceeded the scope of the warrant. We disagree.
To pass constitutional muster, search warrants must describe the place to be searched with particularity. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13; Maryland v. Garrison (1987) 480 U.S. 79, 84.) Absolute precision is not required, however. A search warrant is deemed to have sufficient particularity if the description contained therein "'... is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended'" and "'... whether there is any reasonable probability that another premise[s] might be mistakenly searched.'" (People v. Amador (2000) 24 Cal.4th 387, 392-393.) In this regard, we review "'... the warrant's description of the property to be searched in a commonsense and realistic fashion,' [citation] recalling that they are drafted by nonlawyers amidst the haste of a criminal investigation. '"Technical requirements of elaborate specificity... have no proper place in this area."' [Citation.]" (People v. Minder (1996) 46 Cal.App.4th 1784, 1788.)
Whether a warrant provides sufficient particularity is a question of law subject to our independent review, although we defer to the trial court's determination of the facts so long as those findings are supported by substantial evidence. (People v. Amador, supra, 24 Cal.4th at p. 393.) In light of the policy strongly favoring searches conducted pursuant to a warrant, we presume all warrants are valid. (Ibid.) A defendant challenging a warrant's sufficiency therefore bears the burden of establishing that its flaws render it unenforceable. (See ibid.)
Appellant fails to establish that his apartment was searched without a valid warrant. The warrant describes the premises to be searched as "a single story quonset hut type structure" at 605 Casitas Vista Road in Casitas Springs, and authorizes the search of "all rooms, attics, basements, containers, and other parts therein, the surrounding grounds and any garages, storage rooms, trash containers, and outbuildings of any kind located thereon." The search of the entire building was therefore permissible, so long as the officers reasonably believed the premises were a single living unit "in light of the information available to them at the time they acted." (Maryland v. Garrison, supra, 480 U.S. at pp. 85, 87-88.) Here, the court found that the warrant for the property at 605 Casitas Vista Road was based on probable cause to search the entire premises. That finding is supported by the evidence showing that the room addition that appellant purportedly rented as a separate unit appeared from the outside to be part of the larger residence. The addition did not have a number, letter, or doorbell that identified it as a separate unit. Moreover, the property had only one mailbox, garage, and driveway. (See, e.g., United States v. Kyles (2d Cir. 1994) 40 F.3d 519, 524.) Appellant's attempt to discount these facts as "not substantial" is unavailing. While he notes the addition has its own kitchen and bathroom, there is no indication that the officers were aware of this before they gained entry. The motion to suppress was properly denied.
Sentencing Error
Appellant contends the $510 fee under section 11372.7, subdivision (a) should be stricken from the abstract of judgment because the fee was not imposed at the sentencing hearing. The People concede the point. Although trial courts must impose a drug program fee under the statute when the defendant has the ability to pay, where the record is silent we presume the court found an inability to pay. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413, fn. 2.) We shall order the abstract of judgment amended accordingly.
We also note that the $510 figure appears to be a transposition error, in that the statute provides that any fee imposed shall not exceed $150. (§ 11372.7, subd. (a).)
DISPOSITION
The $510 fee imposed under section 11372.7, subdivision (a) is ordered stricken. The trial court is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GILBERT, P.J. COFFEE, J.