Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Clifford R. Anderson III, Judge, Superior Court County of Santa Barbara Super. Ct. No. 1140139
Mark Brown, 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, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Chung L. Mar, David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Enrique Roque Mora was convicted by jury of possession of heroin for sale (count 1; Health & Saf. Code, § 11351) and transportation of heroin (count 2; id., § 11352, subd. (a)). The jury found true the allegation that appellant possessed for sale 14.25 grams or more of heroin. (Pen. Code, § 1203.07, subd. (a)(1); Health & Saf. Code, § 11352.5, subd. (1).) It deadlocked on a third count of child abuse involving four children (Pen. Code, § 273a, subd. (a)), and that count was dismissed by the prosecution.
Probation was denied and appellant was sentenced to a term of five years in state prison. The trial court imposed the upper term of five years on count 2 and the upper term of four years on count 1, which it stayed pursuant to Penal Code section 654. Appellant was ordered to pay a $1,000 fine plus a $2,650 penalty assessment fee and to register as a narcotics offender. (Health & Saf. Code, §§ 11352.5, subd. (2), 11590.) The court imposed a restitution fine of $200, which was stayed pending successful completion of parole. (Pen. Code, §§ 1202.4, subd. (b), 1202.45.)
Appellant contends the court erred in denying his motion to quash the search warrant and to suppress the evidence seized from his person, residence and van. He also claims the court erred in denying him probation and in imposing an upper term sentence. We affirm.
FACTS
Santa Barbara County Police Detective Warren J. Holtke obtained a search warrant to search the person, residence and vehicle of "Ricardo Silva (aka Richard Silva; aka 'Kiki')." The warrant, issued by Judge Anderle, authorized a search of Silva's residence at 3026 Concord Drive in Oxnard, as well as a light-brown 1992 Ford van, license No. 3BDU201.
Appellant's true name is Enrique Roque Mora. His correct address is 3024 Concord Drive. The license number on the van he was driving is 3BDJ210. Under the warrant issued for "Silva," the officers detained appellant when he drove into a McDonald's parking lot in Carpinteria. As appellant stepped out of the van, four ounces of tar heroin fell from the floorboard onto the running board. His four small children were inside the van. Appellant was arrested and gave the officers his address and a key to his apartment. His children told the officers that appellant went by the name "Kiki."
When the officers arrived at appellant's apartment, they realized the address on the warrant was incorrect—it was listed as 3026 Concord Drive, rather than 3024 Concord Drive. The name and van license plate number on the warrant were also incorrect. The officers waited outside the apartment until Detective Holtke obtained another warrant.
Detective Holtke typed an "addendum" to the bottom of the original search warrant affidavit. He indicated that appellant was detained in the McDonald's parking lot and listed appellant's correct name and address (3024 Concord Drive). The license plate number was still incorrect (3BDU201). Judge Anderle was unavailable to issue another warrant, so Judge de Bellefeuille signed the amended warrant, authorizing a night search of appellant's apartment.
The search yielded 21 bindles of heroin, scissors, a razor blade, an eighth of an ounce of heroin and a plate with heroin residue. The officers also found clothing and a cellular telephone screen with symbols used by the Colonia Chiques gang.
Appellant filed a motion to quash search warrant No. 884803 (the second warrant) and suppress as evidence all property seized during the search of his person, vehicle and residence. (Pen. Code, § 1538.5.) He contended that the affidavit in support of the warrant lacked probable cause. The trial court denied the motion, finding that the affidavit was supported by probable cause and the warrant was properly issued. On appeal, appellant argues that the first search warrant was defective, rendering the search of his van unlawful. He contends that, because he gave the officers the key when he was detained in the parking lot, the resulting search of his apartment was likewise unlawful.
DISCUSSION
Suppression Motion
In reviewing a trial court's ruling on a suppression motion, we defer to the court's factual findings that are supported by substantial evidence. (People v. Hughes (2002) 27 Cal.4th 287, 327; People v. Camacho (2000) 23 Cal.4th 824, 830.) The trial court "'sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences.'" (People v. Needham (2000) 79 Cal.App.4th 260, 265.) Whether a search is constitutionally reasonable, however, is a legal question upon which we exercise our independent judgment. (Hughes, at p. 327.)
The first affidavit described the narcotics officers' surveillance of an individual named Kiki, and the facts underlying their conclusion that Kiki was Richard Silva. The amended affidavit states the reasons for the officers' misidentification of appellant, his address and vehicle. However, neither appellant nor the People enlighten us as to what led to appellant's detention in the McDonald's parking lot. Appellant did not challenge the validity of this detention at the suppression hearing and has not done so on appeal. Therefore, we need not consider the validity of the first warrant.
The first warrant and the affidavit upon which it was based were not included in the record on appeal. We directed the superior court to augment the record to include them.
The amended affidavit reflects that, after appellant was first detained, officers saw four bindles of heroin fall onto the running board of his van. The discovery of heroin in plain view of the officers provided probable cause for the issuance of a warrant authorizing a search of his apartment. (See People v. Pressey (2002) 102 Cal.App.4th 1178, 1184.) Officer Holtke obtained such a warrant, which correctly identified appellant and his address, thus the motion to suppress was properly denied.
Eligibility for Probation
Appellant was convicted of possession of heroin for sale (count 1; Health & Saf. Code, § 11351) and transportation of heroin (count 2; id., § 11352, subd. (a)). The jury found true the special allegation that appellant "possessed for sale 14.25 grams or more of a substance containing heroin." Penal Code section 1203.07, subdivision (a) provides that probation shall not be granted to (1) any person who violates Health and Safety Code section 11351 by possessing for sale 14.25 grams or more of a substance containing heroin; or (2) any person who violates Health and Safety Code section 11352 by selling or offering to sell 14.25 grams or more of a substance containing heroin.
Although not entirely clear, appellant appears to be claiming that his conduct in transporting heroin (count 2) is not proscribed under the statute governing eligibility for probation (Pen. Code, § 1203.07), because that section only prohibits (1) possession of 14.25 grams or more of heroin for sale or (2) selling or offering to sell 14.25 grams or more of heroin.
This contention is meritless because appellant was convicted of possessing for sale 14.25 grams or more of heroin in count 1, conduct that is proscribed in Penal Code section 1203.07, subdivision (a)(1). Thus, he is ineligible for probation. The trial court's stay of count 1 does not vitiate appellant's conviction.
Upper Term Sentence
Appellant argues that the trial court erred by imposing the upper term of five years on count 2. It was noted in the probation report that appellant is a heroin addict with 10 drug-related misdemeanor convictions since 1989. The probation officer recommended the imposition of the upper term and listed six circumstances in aggravation: (1) The crime involved acts disclosing a high degree of callousness because appellant had his four minor children with him in the van while transporting a large amount of heroin; (2) the manner in which the crime was carried out indicates planning, sophistication and professionalism; (3) the crime involved a large quantity of contraband (four ounces, or over 110 grams of heroin); (4) appellant's prior convictions are numerous; (5) appellant was on probation when the crime was committed; and (6) his prior performance on probation was unsatisfactory. (Cal. Rules of Court, rule 4.421.) There were no circumstances in mitigation.
At the sentencing hearing, the trial court stated, "The Court agrees with the report provided by probation that the circumstances in aggravation outweigh the circumstances in mitigation. There are no circumstances in mitigation listed. . . . [¶] . . . [¶] [I]n reviewing the information contained in the report it appears that . . . [appellant] has no prior felony convictions. He has nine or ten or perhaps more convictions for 11550s though."
The California Supreme Court has recently held that, when a trial court exercises discretion to select the upper term sentence based on facts found by the court, the defendant's right to a jury trial is not violated. (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).) "[I]mposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (Ibid.)
In the present case, the trial court stated on the record that it agreed with the probation report and noted that the report listed factors in aggravation. The court emphasized that, while appellant's prior convictions were misdemeanors, they were numerous. (Cal. Rules of Court, rule 4.421(b)(2).) Because at least one aggravating circumstance relied upon by the trial court was justified based on appellant's record of prior convictions, imposition of the upper terms did not infringe upon appellant's right to a jury trial. (Black II, supra, 41 Cal.4th 799, 816.) Although the trial court correctly relied on appellant's prior convictions in imposing the upper term, the better practice is for the court to state on the record the reasons for its sentencing choices. (People v. Pierce (1995) 40 Cal.App.4th 1317, 1319-1320.)
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.