Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1178273, James F. Rigali, Judge
Lyn A. Woodward, 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, Marc E. Turchin, Arlene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Shelly Lynne Marinello appeals from the judgment entered following her conviction by a jury of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and being under the influence of a controlled substance. (Id., § 11550, subd. (a).) The trial court suspended the imposition of sentence and placed her on probation for three years. Appellant contends that a search warrant for her residence should have been quashed, but trial counsel was ineffective because he failed to preserve the issue for appellate review. We disagree and affirm.
Factual and Procedural Background
On December 1, 2004, Sergeant Daniel Olivares served a search warrant at appellant's residence in Santa Maria. While searching the residence, Olivares found methamphetamine. After the search was completed, Olivares examined appellant and concluded that she was under the influence of "a controlled substance stimulant."
Prior to the preliminary examination, the magistrate denied appellant's motion to quash the search warrant. The magistrate held appellant to answer on the charged offenses. In the trial court, appellant's counsel did not renew the motion to quash the search warrant pursuant to Penal Code section 1538.5, subdivision (i), nor did he move to set aside the information pursuant to section 995.
All statutory references are to the Penal Code unless otherwise stated.
The Search Warrant
The search warrant affidavit sets forth the following facts:
Between November 15 and 24, 2004, a confidential reliable informant (CRI) told the affiant police officer that the CRI knew appellant was selling methamphetamine in the City of Santa Maria. The CRI told the affiant where appellant resided, and the affiant verified that the residence address was accurate. The CRI said that, between November 15 and 24, 2004, "he/she was present when a narcotics transaction occurred. The CRI saw [appellant] exchange a quantity of a substance that the CRI believed to be methamphetamine for a quantity of currency."
The CRI was "an admitted narcotics user." "On several occasions" the CRI had given accurate information to the affiant regarding narcotics dealers. This information had "resulted in the recovery of narcotics and the arrest of several persons." In addition, the CRI had "made at least one controlled purchase of narcotics" under the affiant's "direct supervision." The affiant declared: "I have talked to the CRI about the appearance of methamphetamine, how it is packaged, packaged for sale and sold. Based on what the CRI told me, I believe the CRI knows what methamphetamine is, how it is packaged, packaged for sale and sold."
The affiant was familiar with appellant based on an investigation of her that he had conducted in July 2003. The affiant ran "a criminal history check" on appellant and found that she had three prior convictions for offenses involving controlled substances, including a conviction for transporting or selling a controlled substance in violation of Health and Safety Code section 11352.
In November 2001 the affiant was assigned to the "Narcotics Suppression Team." He had "been involved in several hundred arrests for narcotics violations." Based on his training and experience, he knew "that persons who deal in narcotics normally keep a quantity of narcotics at their place of residence." Accordingly, the affiant believed that there was "reasonable and probable cause for the issuance of a search warrant for [appellant's] residence."
Discussion Appellant Was Not Denied the Effective Assistance of Counsel
Appellant argues that counsel was ineffective because he failed to litigate the validity of the search warrant in the trial court. The motion to quash the warrant prior to the preliminary hearing was insufficient to preserve the issue for appellate review. (People v. Lilienthal (1978) 22 Cal.3d 891, 896; People v. Hinds (2003) 108 Cal.App.4th 897; People v. Hoffman (2001) 88 Cal.App.4th 1, 3; People v. Hart (1999) 74 Cal.App.4th 479, 485-486.) To avoid waiving the issue, counsel was required to renew the motion in the trial court (§ 1538.5, subd. (i)) or to move to set aside the information on search and seizure grounds. (§ 995.)
"The burden of proving ineffective assistance of counsel is on the defendant. [Citation.]" (People v. Babbitt (1988) 45 Cal.3d 660, 707.) "First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687.) In determining whether counsel was deficient, we measure counsel's performance "against the standard of a reasonably competent attorney. . . ." (People v. Kipp (1998) 18 Cal.4th 349, 366.) To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
If the search warrant should have been quashed, counsel's failure to preserve the issue for appellate review would have constituted deficient performance. (People v. Hart, supra, 74 Cal.App.4th at pp. 486-487.) This deficiency would have prejudiced appellant because the methamphetamine, as well as Sergeant Olivares's observations of appellant's physical condition, would have been suppressed had the issue been preserved. "Hence, to determine whether counsel was constitutionally ineffective for failing to preserve the issue, we must consider the merits of the Fourth Amendment argument." (Id. at p. 487.))
In determining whether an affidavit is supported by probable cause, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates (1983) 462 U.S. 213, 238.) The magistrate's determination "'should be paid great deference by reviewing courts.' [Citation.]" (Id., at p. 236.) The reviewing court's duty "is simply to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed. [Citation.]" (Id., at p. 238-239.)
Appellant argues that the issuing magistrate lacked a substantial basis for concluding that probable cause existed to search her residence because "the warrant contained no details of the alleged criminal conduct. The informant offered no particulars as to the location of the alleged sale . . ., the day or time of day, the description of the item he saw exchanged, the buyer, the buyer's vehicle if one was used, the buyer's manner and direction of departure after the sale, where the drug was located just before the exchange, his (the informant's) proximity to the alleged sale, or the manner in which he happened to be present to see the alleged purchase."
The affiant sufficiently described the alleged criminal conduct. The CRI observed appellant receive currency in exchange for a substance that the CRI believed to be methamphetamine. Had the affiant disclosed the details sought by appellant, he probably would also have disclosed the identity of the informant.
Appellant contends that the CRI's "conclusory confirmation" that the substance exchanged was methamphetamine was insufficient to establish probable cause because it was not supported by "any meaningful police corroboration." Appellant maintains that "meaningful corroboration requires confirmation of criminal activity by police surveillance, interview, or other investigation."
We disagree. The issuing magistrate could rely on the CRI's belief that the substance exchanged was methamphetamine. "On several occasions" the CRI had proven his/her reliability by giving accurate information to the affiant regarding narcotics dealers. This information had "resulted in the recovery of narcotics and the arrest of several persons." The CRI had also made a controlled purchase of narcotics under the affiant's direct supervision. Furthermore, the CRI was "an admitted narcotics user." Based on the affiant's conversations with the CRI, the affiant concluded that the CRI knew "what methamphetamine is, how it is packaged, packaged for sale and sold." The CRI's belief was supported by appellant's criminal history involving controlled substances, including a prior conviction for transporting or selling a controlled substance in violation of Health and Safety Code section 11352.
Finally, appellant argues that the affidavit did not provide probable cause to search appellant's residence because "it lacked any detail connecting any alleged criminal conduct to appellant's residence." But the affiant, an experienced narcotics officer, declared "that persons who deal in narcotics normally keep a quantity of narcotics at their place of residence." The issuing magistrate reasonably relied on the affiant's statement. (See People v. Pressey (2002) 102 Cal.App.4th 1178, 1183-1185 [general rule in California is that evidence that suspect is a drug dealer, coupled with narcotics officer's opinion that drugs are likely to be found in the suspect's residence, establishes probable cause to search residence even though there is no direct evidence of illegal activity at the residence].)
Accordingly, the issuing magistrate "had a 'substantial basis for . . . conclud[ing]' that probable cause existed. [Citation.]" (Illinois v. Gates, supra, 462 U.S. at pp. 238-239.) Since the search warrant was supported by probable cause, we reject appellant's contention that trial counsel was ineffective because he failed to preserve the issue for appellate review.
Disposition
The judgment is affirmed.
We concur: COFFEE, J. PERREN, J.