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People v. Gracida

Court of Appeals of California, Second Appellate District, Division Seven.
Nov 18, 2003
No. B160076 (Cal. Ct. App. Nov. 18, 2003)

Opinion

B160076.

11-18-2003

THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO RAFAEL GRACIDA, Defendant and Appellant.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.


Gustavo Rafael Gracida pleaded no contest to selling and/or transporting cocaine (Health & Saf. Code, § 11352, subd. (a)) after the trial court denied his motion to quash and to traverse the search warrant. Gracida was sentenced as a second-strike offender to eight years in state prison. On appeal Gracida contends the trial court erroneously denied his motion to suppress because the search warrant affidavit did not establish probable cause. We affirm the judgment as modified.

Gracida contends, and the People acknowledge, there are two errors in the abstract of judgment: (1) His presentence custody credit from July 20, 2001 to the date of sentencing was miscalculated and should total 462 days, not 459 days; (2) his sentence imposed in case number SA042610 should run concurrently to the sentence imposed in case number "SA031631" (the abstract identifies an incorrect case number). We agree those errors must be corrected.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Evidence of Gracidas Guilt

The preliminary hearing evidence established that Detective Vincent Gamache and several other police officers executed a search warrant on July 20, 2001 for apartment C and garage space 25 located at 2102 Delaware Avenue in Santa Monica. Rock cocaine, a digital gram scale, packaging materials, a . 38-caliber revolver and $35,733 were found in the garage. The officers also recovered $4,400 in cash from Gracida and $8,891 from his wife, who were both inside the garage. Gamache, a veteran with nine years experience who had been assigned to narcotics for four years, testified that in his opinion Gracida possessed the rock cocaine for purposes of sale.

2. Gracidas Motion to Quash the Search Warrant

Gracida filed a motion to quash the search warrant, arguing that, because the information in the affidavit cause was stale, it did not establish probable cause to search the apartment and garage. The search warrant in question was issued on July 18, 2001 and authorized a search of three residences located at 2102 Delaware Street (apartment C), 1838-22nd Street (apartment 4) and 929 Ozone Street (apartment B) in Santa Monica, as well as their respective garages, Gracidas minivan and any other vehicles registered to him. A search of Gracidas person was also authorized. Detective Gamache conducted the investigation that culminated in the search and was the affiant for the search warrant.

a. The Affidavit: Information from a Confidential Informant

In his affidavit Gamache stated he was an experienced Santa Monica police officer with expertise in the investigation of illicit narcotics trafficking and anti-narcotics enforcement. Between May 15, 2001 and July 6, 2001 Gamache was contacted by a confidential reliable informant (CRI) who told Gamache that Gracida resided at 2102 Delaware Avenue, apartment C, in Santa Monica and "was actively selling rock cocaine from his garage (#25)" at the rear of the residence. For more than four months the CRI had been buying rock cocaine from Gracida, each time after contacting him in or near garage space number 25. The CRI specifically described Gracidas physical appearance, his family members and the license plate number of Gracidas gray minivan.

Gamache explained in the affidavit that the CRI had provided him with credible information in the past concerning criminal activity and that the CRI is a user of rock cocaine and is familiar with its appearance, prices and packaging. Gamache stated that he wished to keep the informants identity confidential to protect his or her safety and future usefulness.

b. Gamaches Independent Investigation

Gamaches affidavit also said that, through official channels, he learned Gracida had a valid California drivers license and the gray minivan was registered to him at the Delaware Avenue address. The CRI examined a copy of Gracidas drivers license photograph and identified Gracida as the person from whom he had been buying rock cocaine.

Gamache obtained Gracidas criminal history, which revealed several arrests for narcotics-related offenses and a conviction for lewd acts upon a child under age 14 for which Gracida was currently on probation. Gamache stated he learned from Gracidas probation officer that Gracida was prohibited from frequenting the Delaware Avenue address and from being near his daughter as conditions of probation.

Gracida wrote his probation officer on June 19, 2000 that he was now residing at 1838-22nd Street in Santa Monica. On October 12, 2000 Gracida again provided the same 22nd Street address as his residence and also used the Ozone Street address of his sister when he registered as a sex offender with the Santa Monica Police Department.

Finally, Gamaches affidavit described his own observations and a subsequent undercover narcotics operation. Between May 15 and July 6, 2001 Gracida went to the Delaware Avenue address and saw Gracida approximately 10 times, possibly with his daughters on at least two occasions. On July 6, 2001 at approximately 5:00 p.m. Gamache saw Gracida emerge from his parked minivan and walk into the Delaware Avenue apartment complex. Gamache described Gracidas clothing and activity to his fellow officers. Around 10:15 p.m. an undercover officer went to the rear of the Delaware address and purchased a substance resembling rock cocaine from a male Hispanic named "Gustavo" whose clothing matched Gamaches description of Gracida. A preliminary test of the substance revealed it contained cocaine.

Although the affidavit states the sale to the undercover officer occurred on July 6, 2001, Detective Gamache testified that date was a mistake and the sale had actually occurred on July 5, 2001.

Gamache opined that a search of Gracidas person, his three residences and garages and the vehicles registered to him or under his control would yield evidence of cocaine trafficking.

c. The Trial Courts Decision Denying the Motion to Quash

The trial court denied Gracidas motion to quash, concluding that the 13-day period before the warrant issued (from July 5, 2001 to July 18, 2001) did not render the information in the affidavit stale. The court reasoned the CRIs reported seven weeks of cocaine trafficking, specifically at or near the garage, as well as the undercover officers hand-to-hand sale at the same location, were properly considered by the magistrate in finding probable cause.

2. Gracidas Motion to Traverse the Search Warrant

In addition to challenging the face of the warrant, Gracida moved to traverse on the ground the supporting affidavit omitted material facts. Specifically, he argued the affidavit failed to mention: (1) "Randy" and "Tony" had witnessed the undercover drug buy; (2) Randy actually facilitated the alleged transaction; and (3) the Santa Monica police did not attempt, beyond Gamaches "minimal effort," to identify Randy and Tony.

For purposes of the evidentiary hearing under Franks v. Delaware (1978) 438 U.S. 154 (Franks) [98 S.Ct. 2675, 57 L.Ed.2d 667], the parties stipulated that the court would rely exclusively on the transcript of Gamaches preliminary hearing testimony.

a. Gamaches Preliminary Hearing Testimony

At the preliminary hearing Gamache testified he was aware of two individuals, "Randy" and "Tony," who were present when the undercover officer made the controlled buy on July 5, 2001. Gamache did not attempt to follow either Randy or Tony after the controlled buy out of concern for the undercover officers safety. Gamache and fellow officers "wanted to make sure that after the transaction was complete, that [the officer] got out of there safely." It did not occur to Gamache to have a uniformed officer stop and interview these two people. Gamaches supervisor later suggested that he and other officers find and identify Randy and Tony. However, after searching the area for an additional two weeks, the officers were unsuccessful in locating them.

b. The Trial Courts Decision Denying the Motion to Traverse

In denying the motion to traverse the trial court concluded that, while Gamaches failure to mention the potential witnesses was an omission, the excluded information was not "germane to the finding of probable cause."

DISCUSSION

1. The Motion To Quash the Search Warrant Was Properly Denied

a. The Standard of Review

A defendant seeking to quash a search warrant has the burden of establishing its invalidity. (Theodor v. Superior Court (1972) 8 Cal.3d 77, 101.) "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. [Citations.] `The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, 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. [Citation.] . . . `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 man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the guilt of the accused. [Citation.] The magistrates determination of probable cause is entitled to deferential review. [Citations.]" (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041; see Illinois v. Gates (1983) 462 U.S. 213, 238-239; People v. Camarella (1991) 54 Cal.3d 592, 600-601.)

b. The Magistrate Did Not Rely on Stale Information

Gracida asserts that information in Gamaches affidavit, specifically the July 5, 2001 controlled buy, was too stale to support probable cause on July 18, 2001 when the warrant was issued. Also under the rubric of "staleness" he claims the affidavit failed to establish either probable cause to believe cocaine was stored in or sold from the garage searched or a "nexus" between items of "mere evidence" listed in the warrant and criminal behavior.

An affidavit supporting a search warrant must provide probable cause to believe the material to be seized will still be on the premises when the warrant is served. (People v. Gibson (2001) 90 Cal.App.4th 371, 380; People v. McDaniels (1994) 21 Cal.App.4th 1560, 1564.) Information that is remote in time may be deemed to be stale and therefore unreliable. (Alexander v. Superior Court (1973) 9 Cal.3d 387, 393; Gibson, at p. 380.) "The freshness of the information on the basis of which a warrant is sought and obtained, is one of the factors which determine whether there is probable cause to believe that the articles covered by the warrant will be found at the place that is to be searched." (People v. Hernandez (1974) 43 Cal.App.3d 581, 586.) The question of staleness depends on the particular facts of each case. (Alexander , at p. 393; Gibson, at p. 380.)

In the instant case, information from the CRI indicated cocaine trafficking at the Delaware address was an established enterprise. There was no reason to conclude it had ceased since the hand-to-hand sale on July 5, 2001. Garcida argues that, because "[t]he number of sales was never indicated, nor was the exact location specified, nor were the date of these sales given," "there was no logical inference to be made that controlled substances probably were being kept on the premises." Gracidas hypertechnical assessment of the affidavit is contrary to the requirement that the magistrate read the affidavit in a commonsense fashion. Based upon the CRIs statements and the hand-to-hand sale, a person of ordinary prudence would conclude that narcotics transactions consistently occurred at or in the garage and that was also where the cocaine was stored. (See People v. Mikesell (1996) 46 Cal.App.4th 1711, 1718; People v. Medina (1985) 165 Cal.App.3d 11, 20-21.)

Although the Court of Appeal in People v. Hernandez, supra, 43 Cal.App.3d at page 586, classified a 12-day delay in seeking a warrant following the observation of the defendant as being "on the fringe of unreasonableness" under the circumstances of that case, in the case at bar the hand-to-hand sale and the notice and extent of the CRIs reports of ongoing criminal activity were much stronger evidence than in Hernandez that the contraband would still be found when the search warrant was served.

As for the challenged items of "mere evidence" (telephone books, traffic citations and rental receipts), the warrant sufficiently established their nexus to criminal conduct. There was probable cause to believe these items would identify others involved with Gracida in "a conspiracy to sell cocaine." The fact the items were "intended for daily living purposes" and "moveable" does not preclude their use by police in a particular apprehension or conviction. (See Warden v. Hayden (1967) 387 U.S. 294, 307.)

2.The Motion to Traverse the Search Warrant Was Properly Denied

a. Standard of Review

A defendant may seek to suppress evidence by traverse on the ground the affidavit supporting the search warrant contained inaccurate statements or omissions if the misstatements or omissions were deliberate or reckless on the affiants part and were material to the finding of probable cause to search. (Franks , supra, 438 U.S. at p. 156; People v. Carpenter (1997) 15 Cal.4th 312, 362-363.) When a search warrant is attacked on the ground it is incomplete, "`the reviewing court must determine whether any of the asserted omissions are material. [Citation.] Omissions are "material" if the affidavit was rendered substantially misleading, i.e., if there was "a substantial probability [the omitted facts] would have altered a reasonable magistrates possibility cause determination." [Citation.] If the asserted omissions are deemed immaterial and the affidavit on its face supports probable cause, the warrant usually stands. [Citation.] [¶] If a material fact is reasonably omitted, no sanction is imposed. [Citation.] If a material fact is negligently omitted, the reviewing court should view the affidavit as if it had included that fact and retest it for probable cause. [Citation.] Lastly, if a fact is recklessly omitted or omitted with an intent to mislead, the warrant should be quashed, regardless of whether the omission is ultimately deemed material. [Citation.] [Citation.]" (Carpenter, at p. 363..)

b. The Identity of the "Percipient Witnesses" Was not Material to the Finding of

Probable Cause

Gracida claims that, without the identity of Randy and Tony, Gamaches conclusory assertion as to the CRIs credibility is suspect. He also maintains that inclusion of the two percipient witnesses in the affidavit would have called into question the location of the undercover officers controlled buy and underminded the conclusion there was probable cause to search the garage. Finally, Gracida argues, as he did to the trial court, that the prosecution was obligated under People v. Guereca (1987) 189 Cal.App.3d 884, 887, to disclose the identity of a percipient witness, as well as all pertinent information that might assist the defense in finding that witness.

We agree with the trial courts assessment there is no substantial probability the omitted information would have altered a reasonable magistrates probable cause determination. The identity of the percipient witnesses does not relate in any way to the credibility of the CRI or undermine the accuracy of the description of the circumstances of the controlled buy. Furthermore, there was no showing in Gamaches testimony that either Randy or Tony could be characterized as an informant within the meaning of People v. Guereca, supra, 189 Cal.App.3d 884, such that the prosecution was compelled to reveal their identity and location. The motion to traverse was properly denied.

Gracidas assertion that the undercover officer testified she had talked with Randy on prior occasions and enlisted his assistance to make the July 5, 2001 controlled buy does not alter our conclusion. In any event, that testimony was not part of the evidence the trial court was to consider pursuant to the stipulation by the parties.

DISPOSITION

The judgment is modified to reflect: (1) presentence credit of 462 days, 308 actual and 154 conduct; and (2) the sentence in the instant case (case No. SA042610) is to be served concurrently with the sentence in case number SA031631. As amended, the judgment is affirmed.

We concur: JOHNSON, J., and WOODS, J.


Summaries of

People v. Gracida

Court of Appeals of California, Second Appellate District, Division Seven.
Nov 18, 2003
No. B160076 (Cal. Ct. App. Nov. 18, 2003)
Case details for

People v. Gracida

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO RAFAEL GRACIDA, Defendant…

Court:Court of Appeals of California, Second Appellate District, Division Seven.

Date published: Nov 18, 2003

Citations

No. B160076 (Cal. Ct. App. Nov. 18, 2003)