Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF130125A Jerold L. Turner and Michael B. Lewis, Judges.
Judge Turner presided over motions to quash and traverse the search warrant; Judge Lewis presided over change of plea hearing and sentencing.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J.
This is an appeal from a felony conviction. Appellant Frank Wright III contends the court erred in denying his motion to quash a search warrant. We modify and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Police executed a search warrant at 800 Niles Street, Apartment D, on September 1, 2009. As a result of that search, appellant was charged by information with three counts related to possession and transportation of cocaine base and one count of participation in a criminal street gang, together with numerous enhancements as to each count. (Other individuals were charged in the same information but they are not parties to the present appeal.) After the trial court denied appellant’s motion to quash the search warrant, appellant entered into a plea bargain in which he pled no contest to a count not previously alleged in the information, designated as count 8, violation of Health and Safety Code section 11366, maintaining a place to sell or use a controlled substance. The prosecutor agreed to dismiss all other counts against appellant, as well as all enhancement allegations, and the trial court indicated a midterm sentence of two years would be appropriate. Subsequently, the court sentenced appellant to prison for two years. The court imposed various fees and fines, including, as relevant to this appeal, a $50 laboratory analysis fee and a $130 penalty assessment under Health and Safety Code section 11372.5.
Appellant filed a timely notice of appeal.
DISCUSSION
On appeal, appellant contends the trial court should have granted his motion to quash the search warrant and that the evidence against him should have been suppressed. He contends the court additionally erred in imposing the laboratory analysis fee because the crime for which appellant was sentenced was not one for which the fee is authorized under Health and Safety Code section 11372.5. Respondent concurs on the latter point and agrees we should strike the fee and the related assessment. Respondent contends, however, that the affidavit in support of the search warrant was not stale and did establish probable cause and that, in any event, the officers executing the warrant acted in good faith. Accordingly, respondent contends, the motion to quash was properly denied and suppression of the evidence was not required.
A. Facts Alleged in Search Warrant Affidavit.
On July 13, 2009, men burglarized a home and stole 11 firearms. A home video surveillance system recorded the burglary. Affiliates of the East Side Crips, a criminal street gang, were identified from the tape. Sometime between July 13, 2009, and July 31, 2009, the burglars were apprehended and four of the guns were recovered. Three of the burglars told police officers that “Frank Nitty” had bought some or all of the remaining guns. Further investigation determined that Frank Nitty was appellant’s nickname and that appellant was a member of the East Side Crips. The officers prepared a photo lineup that included appellant’s photograph and the burglars identified appellant as the man to whom the guns had been sold.
The officers determined that appellant was on parole. On July 31, 2009, they conducted a parole search of appellant’s registered address. No weapons or other contraband were discovered at that address or at another address listed for appellant. Appellant’s girlfriend told the officers that appellant “live[d]” at the address but only “stay[ed] there on occasion.” “She was not able to provide the other address where Frank Wright lives.”
On August 24, 2009, officers saw appellant drive into a parking lot at 800 Niles Street. When they saw appellant leaving the apartment, appellant “was scanning the area near his vehicle as if looking for surveillance teams.” Appellant returned to the same address about an hour later. The officers identified another vehicle registered to appellant parked in the complex parking lot. That vehicle had two flat tires. The next day, officers conducting surveillance at the complex saw appellant entering, leaving, and returning to apartment D, all within an hour, after which he “was not seen leaving that apartment.”
Further investigations revealed that Judy Lewis was listed as the occupant of apartment D. She “has prior contacts with members of the [East Side Crips] criminal street gang and is considered an affiliate.” A member of the East Side Crips had listed apartment D as his “address of record when he was arrested for a parole violation on February 3, 2009.”
Without attribution to the source of the information, the affidavit states: “Frank Wright has been a member of the [East Side Crips] criminal street gang for over 20 years and is considered to be a senior member. The [East Side Crips] criminal street gang is in a current battle with other criminal street gangs where homicides have been committed and other crimes of violence.” Additionally, the affidavit states: “Through my training and experience I know that subjects that are on California State Parole or probation will try to not keep items at there [sic] house of record due to being subject to search by law enforcement.” This portion of the affidavit concludes: “It is this information that leads me to believe Frank Wright is using the apartment of 800 Niles Street #D as a stash house to keep the firearms that he recently purchased.”
The affidavit is dated August 27, 2009. Although not explicitly stated in the warrant itself, the return states that the warrant was issued on August 27, 2009. It was served on September 1, 2009.
B. Contentions on Appeal.
Appellant challenges the validity of the search warrant on two grounds: first, that the information concerning appellant’s possession of the stolen guns was stale; and, second, that “[t]here was no information other than the affiant’s hunch that appellant might be using Lewis’ apartment to stash stolen firearms.” Respondent contends appellant has no standing to assert a right of privacy in someone else’s apartment and that there was probable cause for issuance of the search warrant. In addition, respondent contends the exclusionary rule is inapplicable because the officers executing the warrant acted in objective good faith reliance on the warrant. Appellant asserts that reasonably well-trained officers would have known that the affidavit did not establish probable cause for the search warrant and that their reliance on the warrant did not meet the good faith exception to the Fourth Amendment.
C. Standing.
Appellant asserted in his motion to quash the search warrant that he had a protected privacy interest in the apartment that was the subject of the warrant. The prosecution did not contest this proposition in its written opposition to the motion or at the hearing on the motion. The theory of the search warrant affidavit was that the apartment was under the control of appellant as a “stash house” for his stolen goods. On this state of the record, appellant’s privacy interest in the apartment is adequately supported, and we deem respondent’s challenge to standing, raised for the first time on appeal in the face of a mixed factual record, to be forfeited.
D. Probable Cause.
Two things are clearly established by the affidavit, and appellant does not contend otherwise. First, appellant bought stolen guns sometime after July 13, 2009. Second, based on the presence of appellant’s disabled automobile at the premises (indicating a continuing or long-term presence) and appellant’s own access to and entry of the apartment, appellant had some level of dominion or control over the apartment.
Appellant contends, however, that the affidavit set out no reason to believe that appellant still possessed the stolen guns almost six weeks after the original burglary, and the evidence of appellant’s purchase of the guns was, in Fourth Amendment parlance, stale. In support of this contention, he cites a number of cases invalidating search warrants issued several weeks after the confirmed presence of controlled substances at a particular location. (See, e.g., People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.) In those cases, the suspect was selling a product meant to be consumed. It was a reasonable inference, in the absence of information indicating a renewal of the suspect’s supply of contraband, that he would run out of inventory at some point. (See id. at pp. 1652-1653.)
But the “question of staleness turns on the facts of each particular case. [Citations.] If circumstances would justify a person of ordinary prudence to conclude that an activity had continued to the present time, then the passage of time will not render the information stale.” (People v. Hulland, supra, 110 Cal.App.4th at p. 1652.) Here, the evidence involved appellant’s purchase of guns, not his sale of guns—there was no inference of inventory depletion. Further, guns are not usually consumed through use, as are drugs. Finally, the affidavit asserted that appellant’s gang was actively involved “in a current battle with other criminal street gangs where homicides [and other crimes of violence] have been committed, ” a circumstance that supports an inference that appellant would retain control of the guns for use in this “battle.” Thus, the nature of the activity in this case is wholly different than the activity in a case involving drug sales, and the inferences concerning appellant’s continued possession of the stolen guns differs as well. We cannot conclude, under all the circumstances, that the information was stale.
Appellant comes closer to the mark in arguing that the search warrant affiant had little reason to believe the stolen weapons would be found at the apartment for which the warrant was sought. After appellant’s initial purchase of the guns, they were not seen in appellant’s possession at the subject apartment (or anywhere else). “The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” (Zurcher v. Stanford Daily (1978) 436 U.S. 547, 556.)
Nevertheless, when we consider the totality of the information set forth in the affidavit, it is reasonable to infer that appellant, a senior gang member who was hiding his whereabouts from his parole officer and who scanned the area for surveillance each time he approached or left the apartment, would keep the guns under his control. Because a search of his registered residence addresses did not produce the weapons, it is reasonable to conclude that the guns would be at appellant’s “other address, ” which his girlfriend did not know but which surveillance identified as likely the apartment for which the warrant was sought. While the issue is close, we conclude the magistrate had a substantial basis for his determination that there was a fair probability the guns were at the Niles Street apartment. (See People v. Carrington (2009) 47 Cal.4th 145, 161.)
E. Good Faith.
Even if we were to conclude that the search warrant affidavit was deficient in setting forth probable cause to search the apartment, it is clear that suppression of the evidence is not required because the search warrant provides an objectively reasonable basis for the officers’ actions in searching the apartment. (See United States v. Leon (1984) 468 U.S. 897, 907.) As we have concluded, this was not a case in which the information provided in the affidavit was clearly stale (or stale, at all, for that matter) (see People v. Hulland, supra, 110 Cal.App.4th at p. 1657). The connection between appellant and the guns was strong, as was the connection between appellant and the apartment. The affidavit was not wholly lacking in indicia of connection between the guns and the apartment, as we have discussed in part D., above. Under these circumstances, the officers were permitted to rely on the search warrant. (See Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453, 1465.)
F. The Laboratory Fee.
Respondent concedes the court erred in imposing the fine of $50 and a penalty assessment of $130 upon appellant. Such a fine and assessment are required by Health and Safety Code section 11372.5 upon conviction of a wide range of drug-related offenses, including those initially filed against appellant. At the change of plea hearing on March 16, 2010, however, the court amended the information to add count 8, a violation of Health and Safety Code section 11366. It is that count to which appellant pled no contest and it is that count alone of which he was convicted. All other counts were dismissed pursuant to the plea bargain. Health and Safety Code section 11366 is not one of the sections listed in Health and Safety Code section 11372.5. Accordingly, imposition of the fine and assessment were unauthorized; the judgment must be modified to strike that fine and assessment.
DISPOSITION
The judgment is modified to strike the $50 fee and the $130 penalty assessment imposed pursuant to Health and Safety Code section 11372.5. As modified, the judgment is affirmed. The superior court is directed to cause the preparation of an amended abstract of judgment omitting the Health and Safety Code section 11372.5 fee and assessment in section 8, and shall transmit the amended abstract of judgment to the appropriate authorities.
WE CONCUR: WISEMAN, Acting P.J., FRANSON, J.