Opinion
NOT TO BE PUBLISHED
Super. Ct. No. F3911.
SIMS, Acting P. J.
Defendant James Oscar Paxia appeals following a conviction for possessing methamphetamine and cocaine for sale (Health & Saf. Code, §§ 11378, 11351). Defendant contends the trial court erred in denying his motion to quash and traverse the search warrant and suppress evidence (Pen. Code, § 1538.5 ), because the warrant directed a search of a multiple-occupancy address without showing probable cause for searching each unit or believing the entire premises constituted a single living unit. Defendant also challenges imposition of consecutive sentences and seeks extra conduct credits under a recent amendment to section 4019. We shall modify the judgment to add extra conduct conducts. We shall otherwise affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with eight drug-related counts (four felonies and four misdemeanors) allegedly occurring on December 21, 2006. Several counts were dismissed, leaving only Count I possession of methamphetamine with intent to sell (Health & Saf. Code, § 11378) and Count II possession of cocaine with intent to sell (Health & Saf. Code, § 11351). A jury found defendant guilty on both counts. The trial court sentenced defendant to the lower term of two years on Count II plus one-third the middle term on Count I, for a total of two years, eight months.
Before trial, defendant filed a motion to suppress evidence (§ 1538.5) on the grounds that the search warrant was insufficient; the seized property was not described in the warrant; the location that was searched and described in the warrant was not the location described in the affidavit; the information in the affidavit was stale; there was no probable cause for the warrant; execution of the warrant violated federal constitutional standards; the affidavit contained misstatements and omissions; and the confidential informant (CI) was not credible or reliable.
Defendant’s main point was that the deputies obtained a search warrant for multiple residences upon affidavits which concealed the fact there were multiple residences on the property.
The search warrant stated: “The location to be searched is hereinafter referred to as 8105 South Main Street in the town of Mokelumne Hill.... The residence in question is a light grey two story home with a standard shingle style roof. Located at the base of the residence driveway is a wooden sign that has the words ‘No parking, park in back’ spray painted in red. The sign is also marked with the numbers ‘8258.’ Located adjacent to the main residence is a smaller bungalow, painted grey with white trimming. Any and all buildings on the premises, including all rooms, safes, storage areas, containers, surrounding grounds, trash areas, garages and out buildings assigned to or part of the residence.” The warrant also authorized search of any vehicles at the “residence” and any persons “at the residence or that arrive at the residence during the execution of the search warrant. [¶]... [¶] Judith or Judy, further described as a white female adult, believed to be within the above described premises.”
In support of his motion, defendant submitted his own declaration stating in part, “I moved to the premises known as 8258 South Main Street before December of 2005. At the time I moved to the premises, it consisted of five apartment units which were individually numbered ‘Unit A, ’ ‘Unit B, ’ and ‘Unit 1, ’ Unit 2, ’ and ‘Unit 3.’ I lived in Unit 3. Judy Markey already lived there and resided in Unit A. Charles Robbins lived in Unit B, and his daughter, Patricia Robbins, lived in Unit 1.” Defendant attested he is not related to any of them. Defendant also submitted rental agreements of the three others and his own rental agreement showing he rented from one Ed Kohos, on a month-to-month basis, effective April 1, 2005, “1 bedroom apartment #3 located at 8258 South Main Street, Mokelumne Hill....”
The People opposed the motion and argued the grounds stated in defendant’s motion reflected motions to quash and traverse the search warrant.
Evidence on the motion, including the preliminary hearing transcript, included the following:
The Calaveras County Sheriff’s office received information from a CI that a middle-aged White female named Judy was selling methamphetamine from a residence at 8105 Main St. in Mokelumne Hill -- a residence which also had a spray-painted sign marked “8258” at the driveway. The deputies observed the CI make a “controlled buy” of drugs from Judy after she contacted an unknown male in a separate building on the premises.
The deputies sought a search warrant of the entire property, based upon a probable cause statement by deputy Kevin Stevens and a “Hobbs Attachment” (People v. Hobbs (1994) 7 Cal.4th 948 [search warrant affidavit may be sealed to protect identity of confidential informant]). The Hobbs attachment -- redacted for purposes of this proceeding to protect the CI’s identity -- described the controlled buy, in which deputies observed the CI approach “a bungalow style structure located adjacent to the main residence” and eventually make contact with Judy at the bungalow. A deputy observed Judy “walk to the main residence, where she contacted an unknown male subject. [A detective] observed the unknown male subject proceed to a metal shed located behind the bungalow, where he entered it and stayed within for about six minutes.” The male and Judy then entered “the main residence.” Judy exited the main residence, recontacted the CI, and made a hand-to-hand exchange. The CI met up with deputies and turned over methamphetamine purchased in the controlled buy. During the debriefing, the CI said he or she upon arrival “walked to the residence bungalow where (S[ubject]) Judy resides.” The CI knocked on the bungalow door. An unknown male came to the door and said Judy was gone but would be back shortly. Judy arrived shortly thereafter and made contact with the CI, who requested methamphetamine. Judy entered “the main residence, ” contacted an unknown male, and returned shortly with the methamphetamine. The probable cause statement said the deputy knew through training and experience “that persons who sell methamphetamine may conceal it [in] different areas in or around their residence to avoid full loss or detection by law enforcement.”
As indicated, the search warrant did not disclose the existence of multiple residences on the property.
Deputies who executed the search warrant on December 21, 2006, around 7:00 p.m., testified (at the preliminary hearing) that the address included a primary structure that was “sectioned into different parts” and a “garden-type shed” behind the main structure. A deputy saw a light on in the shed and heard people talking inside. When someone opened the shed door from the inside, the deputy announced his presence. From about 20 feet away, the deputy instructed the four people in the shed, which included defendant, to show their hands and come out of the shed. As defendant left the shed, the deputy saw him throw a large object from his right side and heard a crash corresponding with the object landing. Deputies handcuffed and searched the four people, finding a digital scale and a cell phone in defendant’s pocket. A deputy looked for the object defendant had thrown and found a green bag suspended in a tree, with cash and methamphetamine hanging out of the bag. A glass methamphetamine smoking pipe was on the ground near the bag. Inside the bag was $6,242 in cash, a white substance later determined to be methamphetamine, 12.7 grams of cocaine, a wallet, and various papers including receipts and a duplicate fishing license bearing defendant’s name.
In a bedroom in the main house, deputies found a fishing license bearing defendant’s name but with a different home address than where the search took place. Inside the shed, deputies found pipes, baggies, a digital scale, and marijuana.
The trial court denied the motion to traverse, because the materials and testimony did not support defendant’s charges of material misrepresentations and/or omissions. The trial court denied the motion to quash, finding the affidavits furnished sufficient probable cause for the warrant under Illinois v. Gates (1983) 462 U.S. 213 [76 L.Ed.2d 527].
After entry of judgment on the jury verdict, defendant appeals from denial of his suppression motion.
DISCUSSION
I. Standard of Review
A defendant may move to suppress evidence obtained as the result of a search or seizure on the ground that there was not probable cause for the issuance of the search warrant. (§ 1538.5, subd. (a)(1)(B)(iii).) If the defendant moves to quash the search warrant, “the court should proceed to determine whether, under the ‘totality of the circumstances’ presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was ‘a fair probability’ that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. [Citations.]” (People v. Hobbs, supra, 7 Cal.4th at p. 975.)
“In reviewing the magistrate’s determination to issue the warrant, it is settled that ‘the warrant can be upset only if the affidavit fails as a matter of law [under the applicable standard announced in Illinois v. Gates, supra, 462 U.S. at p. 238] to set forth sufficient competent evidence supportive of the magistrate’s finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony.’” (People v. Hobbs, supra, 7 Cal.4th at p. 975.) Thus, “[t]he magistrate’s determination of probable cause is entitled to deferential review.” (People v. Kraft (2000) 23 Cal.4th 978, 1041.)
However, the courts independently determine whether, on the facts as found by the magistrate, the search was reasonable under the Fourth Amendment. (People v. Hunter (2005) 133 Cal.App.4th 371, 377.)
In determining whether the trial court properly denied a suppression motion made on the ground that the evidence used to support the search warrant was obtained from an illegal search, we defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 384.) In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (Ibid.)
II. Denial of Section 1538.5 Motion Was Proper
For purposes of this appeal, we shall accept defendant’s assertion, based on testimony of deputies at the preliminary hearing (which the trial court considered in ruling on the section 1538.5 motion) as well as testimony at trial, that even before applying for the search warrant, the deputies knew there were multiple residences on the property.
Defendant contends the trial court erred in denying his motion to quash and traverse the search warrant and suppress the evidence, because the deputies failed to disclose to the magistrate that there were multiple residences on the property. Defendant says the warrant improperly allowed a search of all five residences where probable cause was shown only as to the residence of Judy. Defendant cites evidence that the deputies were acquainted with him but failed to mention him in the warrant application. Defendant complains the deputies did not attempt to determine whether the garden shed and storage shed on the property were within the exclusive control of one of the other residents. We shall explain there is no ground for reversal, because there was probable cause to search the shed, and the deputies did not even need to search the shed but rather found the contraband outside the shed.
“‘[A] warrant to search ‘premises’ located at a particular address is sufficient to support the search of outbuildings and appurtenances in addition to a main building when the various places searched are part of a single integrated unit. [Citations.]’” (People v. Gallegos (2002) 96 Cal.App.4th 612, 625.) “[T]he requirement of the Fourth Amendment that a particular ‘place’ be described in the warrant when applicable to dwellings means a single living unit, that is to say the residence of one person or family, and a warrant describing an entire building issued on probable cause for searching only one apartment therein is void. [Citations.] Accordingly when a warrant directs a search of a multiple occupancy apartment house or building, absent a showing of probable cause for searching each unit or for believing that the entire building is a single living unit, the warrant is void and a conviction obtained on evidence seized under it cannot stand. [Citations.]” (People v. Estrada (1965) 234 Cal.App.2d 136, 146.)
Estrada, supra, 234 Cal.App.2d 136, did not hold a search invalid, but rather held that a warrant to search “the apartment house occupied by MANUEL ESTRADA at 18 S. 19th Street, San Jose” sufficiently limited the search to the defendant’s apartment and was understood as such by the officers executing the warrant. (Id. at p. 149.)
Here, defendant seeks to rely on the federal cases cited by Estrada for the general proposition that a warrant describing an entire building issued on probable cause for searching only one apartment is void. (Estrada, supra, 234 Cal.App.2d at p. 146, citing United States v. Hinton (7th Cir. 1955) 219 F.2d 324, 326; United States v. Barkouskas (D.C.Pa. 1930) 38 F.2d 837, 838; United States v. Chin On (D.C.Mass. 1924) 297 F. 531, 533; United States v. Innelli (E.D.Pa. 1923) 286 F. 731, 732-733; United States v. Mitchell (N.D.Cal. 1921) 274 F. 128, 130-131.) Defendant also cites other federal cases for the proposition that when a warrant directs a search of a multiple-occupancy apartment house or building, absent a showing of probable cause for searching each unit or for believing that the entire building is a single living unit, the warrant is void and a conviction obtained on evidence seized under it cannot stand. (Tynan v. United States (9th Cir. 1924) 297 F. 177, 179; United States v. Poppitt (D.C.Del. 1964) 227 F.Supp. 73, 76.)
However, besides offering no discussion of the facts involved in the federal cases, defendant fails to acknowledge (1) probable cause in this case was not limited to Judy’s apartment, and (2) the evidence incriminating defendant was not found in any structure but rather outside the shed to which he clearly had access.
Thus, People v. Joubert (1983) 140 Cal.App.3d 946, held that federal cases such as United States v. Hinton, supra, 219 F.2d 324, did not render an entire search unlawful, and an overbroad warrant could be upheld as to valid portions. (Joubert, supra, 140 Cal.App.3d at pp. 951-953.) Joubert held a warrant to search an entire 28-acre parcel of land with multiple dwellings was partially invalid where the warrant was based on an aerial surveillance which disclosed marijuana growing only in a 50-foot circle. Joubert concluded the warrant was invalid as to the search of the residences but valid as to the evidence seized from the circular marijuana garden. “‘Even if a warrant authorizes the search of an entire premises containing multiple units while reciting probable cause as to a portion of the premises only, it does not follow either that the warrant is void or that the entire search is unlawful.... [¶] ‘Probable cause was stated for [part of the property], and the overbreadth of the warrant does not require suppression of evidence seized pursuant to that aspect of the search.’” (Id. at p. 953, citing United States v. Gilman (9th Cir. 1982) 684 F.2d 616.)
The cited case, Gilman, supra, 684 F.2d 616, held that where probable cause was stated to search offices at a particular address, but the warrant failed to mention the building also contained a residence, evidence seized in the residence had to be suppressed, but evidence seized from the office was admissible. (Id. at p. 618.) Moreover, Gilman said the general rule voiding a search warrant for an undisclosed multi-unit structure did not apply in various circumstances, including where the entire premises were suspect. (Id. at p. 618.)
Here, even assuming the warrant was overbroad in authorizing the search of residences other than Judy’s residence, and even though the apartment claimed by defendant was searched, the incriminating evidence was not found in any residence, but outside the shed. There was probable cause to search the shed, because deputies observing the CI’s controlled buy saw Judy walk from the bungalow to the house, where she contacted a man who then went to the shed, stayed inside for several minutes, returned and handed something to Judy, who returned and handed something to the CI. Thus, there was probable cause to believe contraband might be found in the shed. Moreover, the incriminating evidence was not even inside the shed when the deputies seized it. It had been discarded by defendant and was in a tree.
We conclude any defect in the warrant does not require suppression of the evidence found outside the shed.
Under a separate heading, defendant argues the trial court’s error in denying the motion to quash and traverse the warrant violated defendant’s right to due process. However, we have explained there was no error. Defendant’s constitutional claim adds nothing, and we need not address the People’s assertion that the claim is forfeited for failure to raise it below.
III. Consecutive Sentences
Defendant argues the trial court erred in imposing a consecutive, rather than a concurrent, sentence on Count I (possession of methamphetamine for sale), based on a finding by the court -- not the jury -- that “the methamphetamine charge was completely unrelated to the possession of the cocaine for sale charge.” Defendant says both drugs were found in the same green bag, with nothing to distinguish their possession. However, he does not raise a substantial evidence argument. Rather, defendant claims he should have been entitled to a finding by a jury rather than by the trial court.
Defendant acknowledges his argument is defeated by People v. Black (2007) 41 Cal.4th 799, 822, which held there is no right to a jury trial regarding imposition of consecutive sentences. His opening brief says he raises the issue “mainly to preserve it” pending a decision on the issue by the United States Supreme Court. However, a year before defendant filed his opening brief, the United States Supreme Court issued its decision in the cited case -- Oregon v. Ice (2009) 555 U.S. _ [172 L.Ed.2d 517] -- holding that consecutive sentencing decisions do not implicate the Sixth Amendment right to a jury trial. Defendant’s reply brief acknowledges that Oregon v. Ice defeats his contention.
IV. Section 4019 Conduct Credits
Defendant contends he is entitled to an extra five days of conduct credits under recent amendments to section 4019, which went into effect on January 25, 2010. (Stats. 2009, 3d Ex.Sess., ch. 28, § 50.) The People disagree. We conclude the amendments do apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies “to acts committed before its passage provided the judgment convicting the defendant is not final”; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].) Defendant is not among the prisoners excepted from the additional accrual of credit. (§ 4019, subds. (b), (c); Stats. 2009, 3d Ex.Sess., ch. 28, § 50.) Consequently, defendant having served seven days of presentence custody, he is entitled to six days of conduct credits.
While this appeal was pending, the Legislature again amended section 4019, but expressly stated the changes to jail inmate credits apply only to crimes committed on or after the effective date of the legislation, September 28, 2010. (Stats. 2009-2010, ch. 426, § 2 [Sen. Bill No. 76].)
DISPOSITION
The award of presentence credits is modified to award defendant a total of 13 days. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to send a copy to the Department of Corrections and Rehabilitation.
We concur: RAYE, J., BUTZ, J.