Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FMB008483, Rodney A. Cortez, Judge. Affirmed.
Maureen M. Bodo, 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, James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
INTRODUCTION
A search warrant was served at the residence of defendant and appellant George Gus Garcia. The search warrant had been obtained with respect to a home-invasion robbery. Although apparently no evidence linking defendant to the robbery was discovered, the deputies did find weapons and items indicative of a methamphetamine manufacturing operation; defendant was charged accordingly. Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), defendant pleaded guilty to manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), possession of an unlawful firearm (Pen. Code, § 12020, subd. (a)), and being an ex-felon in possession of a firearm and ammunition (Pen. Code, §§ 12021, subd. (a)(1), 12316, subd. (b)(1)). On appeal, his sole issue is a claim of error in the denial of his motion to suppress and/or traverse the search warrant. We reject his contentions and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In pertinent part, the affidavit in support of the search warrant, executed by Detective Thornburg, described the robbery under investigation and stated that although the perpetrators were masked, the victim “recognized the voice of Suspect One as the voice of a Hispanic male subject named ‘George’ who goes by the nickname ‘Indio.’” (Hereinafter referred to as George/Indio.) It then recited that the victim was familiar with George/Indio as the latter had visited the victim’s residence several times, on one occasion trying to sell marijuana. The affidavit further related that “the suspects also took [the victim’s] ‘RAZOR’ cell phone. [The victim’s] phone has GPS tracking capabilities.” Following the robbery, calls to “phone sex” numbers were made, which registered at the cellular repeater tower near defendant’s residence. It was not used at any other location.
Detective Thornburg also stated that George/Indio was “known to numerous deputies assigned to the Morongo Basin Sheriff’s Station by his moniker and true identity of ‘George Gus Garcia,’ date of birth 02-19-1973. Garcia has had numerous contacts with Deputies . . . at his current residence located at 58620 San Marino Drive in the Town of Yucca Valley.” “Deputy Jimmy Delgado handled a Sheriff’s call for service approximately two weeks prior to this crime and established that Garcia still maintains this address.”
Defendant did not argue that the contents of the affidavit were not sufficient to justify the issuance of a search warrant. Instead, he contended that much of the information was false—specifically, that the victim had only said that one of the robbers “sounded like” George/Indio, which he asserted was inadequate to support a firm identification of the suspect. In this respect, defendant pointed to the police report authored by Deputy Mackay, which contained only the statement quoted above. Defendant also objected to the information in the affidavit concerning the familiarity the sheriff’s department had with George/Indio in that it was not supported “by any factual basis” and, similarly, objected to the statement that the victim’s cell phone had GPS capability and the lack of detail concerning other cellular towers in the area.
The People pointed out that in the affidavit, Detective Thornburg stated that he too had interviewed the victim, eliciting the definite identification described in the affidavit. Defendant responded that the alleged interview was not contained in the discovery produced by the People in response to a standard request. Defendant also argued that the statement in the affidavit that “Detective Thornburg interviewed the victim . . . who reported that earlier in the evening on 09-05-2006 at approximately 21:30 hours . . . two unknown men entered” his home could not be true because the victim did not take himself to the hospital until 3:00 a.m. the next day. (That is, the victim could not accurately have described the robbery as having occurred earlier in the evening when Detective Thornburg could not possibly have interviewed him until early the next morning.)
What perhaps should have been an easily-resolvable issue became murky because the victim could not be located to confirm or deny the interview.
Defendant’s motion to traverse/quash the search warrant was originally made prior to the preliminary hearing and denied by the magistrate. The motion was later renewed before the superior court, which denied it without comment.
Appellant’s opening brief again challenges the truth of Detective Thornburg’s statements concerning his purported interview with the victim and the overall sufficiency of the statements in the context of their hearsay nature and arguable lack of detail.
DISCUSSION
In reviewing the ruling of the superior court on a motion to suppress, we defer to the express or implied factual findings of the trial court, as long as such findings are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Cantor (2007) 149 Cal.App.4th 961, 965.) When a defendant challenges the veracity of statements made in an affidavit to secure a search warrant, the trial court is not required to pursue the issue to the point of an evidentiary hearing unless the defendant makes a “substantial showing” of falsity. (People v. Bradford (1997) 15 Cal.4th 1229, 1297; see also People v. Benjamin (1999) 77 Cal.App.4th 264, 271-272.) A presumption of validity attaches to the affidavit. (Bradford, at p. 1298; Benjamin, at p. 272.) Finally, an affidavit is sufficient to support the issuance of a search warrant if, taken as a whole, it provides the magistrate with a “substantial basis” for concluding that there is a “fair probability” that a search will uncover evidence of wrongdoing. Review of the magistrate’s decision is deferential. (People v. Thuss (2003) 107 Cal.App.4th 221, 235.)
First, we find that defendant failed to make the required substantial showing of falsity with respect to Detective Thornburg’s representation that he had personally interviewed the victim. The affidavit was made under penalty of perjury and, as noted above, was presumed to be valid. The fact that Detective Thornburg’s interview may not have been otherwise recorded in the police file cannot be considered suspicious without information concerning the routine practices of the sheriff’s department—information that was not adduced at the hearing. Furthermore, contrary to defendant’s argument, if the victim was interviewed during the darkness hours of the morning of September 6, it would not be unusual for him to have described the robbery as having occurred earlier in the evening. Finally, the fact that the victim apparently provided details to Detective Thornburg, which he did not relate to the deputy who originally spoke to him, is not suspicious. The victim was repeatedly punched in the head by the robbers and thrown against the wall. When the responding (and reporting) deputy saw the victim at the hospital several hours after the attack, his face was severely swollen, he had a black eye and he was still bleeding. It is perfectly understandable that his memory might have improved as additional time elapsed from the beating, or that he might have become calmer and better able to relate details. None of this raises a substantial doubt that Detective Thornburg’s interview actually occurred or was accurately reported to the magistrate.
The affidavit was executed on September 6, 2006—the day after the robbery.
The only other possible basis for defendant’s attack on the affidavit concerns Detective Thornburg’s failure to include additional details concerning local cellular service, the extent to which calls from the victim’s cell phone could be pinpointed, and the nature and source of the sheriff’s department’s general familiarity with George/Indio or defendant. There is nothing at all inherently improbable in the statements made in the affidavit. If defendant believed that the assertions about the location from which the calls from the victim’s cell phone were made were factually inaccurate, it was incumbent upon him to show that these assertions were likely untrue. We also find that the detective was not obliged to set out in detail the links between George/Indio and defendant. Detective Thornburg stated in the affidavit that George/Indio was known by numerous deputies to be George Gus Garcia, and that his residence was also familiar to the deputies from numerous contacts. He noted that defendant’s records with the Department of Motor Vehicles also listed the same address. With respect to hearsay, the purpose of an affidavit is simply to enable the magistrate to take an informed view of the veracity and basis of knowledge of hearsay declarants. (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.) It was sufficient here for Detective Thornburg to explain that his fellow deputies had numerous contacts with a person whose moniker was “Indio” and who might also be known as “George,” but whose true name was George Gus Garcia, with a known and specified birth date.
Any attempt by defendant in his reply brief to paint the victim’s disappearance as suspicious and casting additional doubt as to the truth of Detective Thornburg’s statements is so speculative that it need not be discussed. We simply note that the affidavit was executed the day after the robbery, at which time the victim had presumably not disappeared.
Finally, we reject defendant’s assertion that the fact that no evidence relating to the robbery was discovered during the search casts substantial doubt upon the veracity of the affidavit. Speculation that the robbers may have gotten the victim’s blood on their clothing may have been inaccurate or such clothing may have been discarded. Similarly, defendant, if he was one of the robbers, may have disposed of identifiable personal items belonging to the witness such as credit cards and may well have been savvy enough to use the cell phone only for a short period. Alternatively, there were two robbers, and it is perfectly possible that if incriminating items were not simply dumped, they might have been in the possession of the other robber. No inference damaging to the prosecution and the search warrant need be drawn.
Because we reject defendant’s basic premise—that the search warrant should never have issued—we need not consider the People’s alternative argument to the effect that the executing deputies’ reliance on the search warrant was justified under United States v. Leon (1984) 468 U.S. 897.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., MILLER, J.