Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC059495.
Haerle, Acting P.J.
I. INTRODUCTION
Appellant Chiaho Wu was convicted of one count of possession of an assault weapon (Pen. Code, § 12280, subd. (b)), following a plea of no contest. On appeal, he contends the trial court erred in denying his motion to traverse the search warrant and to suppress evidence. We will affirm.
All further unspecified statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
By information filed on September 27, 2005, appellant was charged with one count of possession of a short barreled rifle in violation of section 12020, subdivision (a), and eight counts of possession of an assault weapon in violation of section 12280, subdivision (b). Appellant pled not guilty.
The charges were based on the results of a search under a warrant by police of appellant’s home on February 24, 2005. Officers recovered six handguns, three shotguns, five rifles, and nine unregistered assault rifles, including a Colt AR-15 rifle. None of the assault weapons was registered to appellant. Special Agent Ignatius Chinn of the California Department of Justice testified that, in his expert opinion, the Colt AR-15 was a banned assault weapon under section 12276, subdivision (a)(5).
Because appellant’s conviction resulted from a plea, the facts are taken from the transcript of the preliminary hearing.
Appellant moved to suppress evidence and to traverse the search warrant pursuant to section 1538.5. On January 18, 2006, the trial court (the same judge who had signed the search warrant) held a hearing and denied the motion.
On April 17, 2006, appellant withdrew his plea of not guilty and entered a plea of no contest to one count of possession of an assault weapon in violation of section 12280, subdivision (b).
On June 9, 2006, the trial court suspended imposition of sentence and placed appellant on probation for three years, with conditions including that he serve 10 days in jail.
On July 12, 2006, appellant filed a timely notice of appeal.
III. DISCUSSION
A. The Motion to Traverse the Search Warrant
Appellant contends that the trial court erred in denying his motion to traverse the search warrant. He argues that he satisfied the threshold evidentiary requirement of Franks v. Delaware (1978) 438 U.S. 154 (Franks), and that the court was therefore required to hold a hearing in which appellant could challenge the veracity of facts stated in the affidavit that were material to the issue of probable cause.
1. The Affidavit
Special Agent Mitchell Fox of the California Department of Justice (DOJ), Firearms Division, authored the affidavit in support of the search warrant. Fox stated that he learned from a case file that, in 1990, one Salvador Syquia had attempted to register four assault weapons, including the Colt AR-15 rifle at issue herein. The Colt AR-15 is identified in the affidavit as “Colt, model: AR-15, .223 caliber, semi-automatic rifle, serial # SP228900.” The registration attempt was unsuccessful because the background check revealed that Syquia had a lifetime prohibition from possessing firearms because of a prior felony conviction. Apparently, no further action was taken at that time to seize the assault weapons.
In April 2004, the DOJ conducted an updated registration check and learned that the four assault weapons were still under Syquia’s name and still unregistered.
In May 2004, Fox contacted Syquia, who stated that, in 1999, he had transferred three of the assault weapons to his brother-in-law, John Bell, and had sold the Colt AR-15 to High Bridge Arms in San Francisco. Syquia sent Fox the receipts and paperwork for the transfers and sale. A dealer record of sale showed the transfer of three guns from Syquia to Bell on May 29, 1999, and a consignment receipt dated August 29, 1999, showed the consignment to High Bridge Arms of a “Colt Sporter A2, serial # SP228900.” The receipts were all signed by High Bridge Arms employee Philip Tong.
In the affidavit, Fox stated, “As of March 31, 1992, all (4) four aforementioned firearms were designated as ‘assault weapons.’ After 1992, these assault weapons were banned and illegal to purchase, sell or transfer in the State of California unless for authorized law enforcement use.” Fox also averred that, as a result of the illegal transfer of these firearms, Syquia, Bell, and Tong were all in felony violation of specified sections of the Penal Code.
Fox also stated that, upon review of the consignment receipt, it was “apparent that Philip Tong was untruthful in documenting that the Colt rifle, serial # SP228900 was a Sporter model. The Colt rifle, serial # SP228900 is a Colt AR-15 and is a banned assault weapon. Tong documented that the rifle was a Colt Sporter which was legal to possess in 1999. The Colt AR-15 has not been registered and is still in the name of Syquia.”
In January and February 2005, Fox conducted further investigation that led to a search warrant for Bell’s apartment. On February 6, 2005, a search of the apartment resulted in the seizure of the three guns that had been transferred to Bell from Syquia.
On February 11, 2005, Philip Tong of High Bridge Arms contacted Special Agent Supervisor (SAS) Ignatius Chinn regarding the 1999 transfer of the three assault weapons and the purchase of the one assault weapon. He corroborated Syquia’s story, and told Chinn that another High Bridge Arms employee, appellant, had purchased the Colt AR-15. Tong told Chinn he would get the Colt rifle from appellant.
The next day, Chinn went to High Bridge Arms. Tong gave Chinn the lower receiver of the Colt AR-15 bearing serial # SP228900, telling him appellant had disassembled the rifle and gave him only that part. Tong also gave Chinn the 1999 transfer receipt for the Colt AR-15, which listed appellant’s name and birth date, and was signed by Tong. Fox noted in the affidavit that “the lower receiver contained the serial number and is considered the part of the firearm that makes it an illegal assault weapon.”
Fox obtained appellant’s driver’s license number and home address from a records check, and learned that appellant had eight vehicles registered to him at that address. Fox also learned that appellant had 15 handguns and no assault weapons registered to him.
Fox stated in the affidavit: “[Appellant] has already shown a propensity to own firearms illegally. These weapons are a public offense for [appellant] to possess.” Based upon his investigation, Fox stated that he had “probable cause to believe that [appellant] was in violation of . . . [section] 12280[, subdivision ](b), a felony, by possessing the unregistered Colt AR-15.” He opined that a search of appellant’s residence would recover the other parts of the Colt AR-15 and other illegal assault weapons.
2. Legal Principles
“It is established law [citations] that a warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter. . . . Because it is the magistrate who must determine independently whether there is probable cause [citations], it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or reckless false statement, were to stand beyond impeachment.” (Franks, supra, 438 U.S. at p. 165.)
“Under Franks[, supra, 438 U.S. at pp. 154-156], a defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. When presented with such a challenge, the lower court must conduct an evidentiary hearing if a defendant makes a substantial showing that (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth, and (2) the affidavit’s remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause. The defendant must establish the statements are false or reckless by a preponderance of the evidence. (Id. at pp. 155-156; People v. Bradford [(1997)] 15 Cal.4th [1229,] 1297.) Innocent or negligent misrepresentations will not defeat a warrant. (Franks, supra, 438 U.S. at pp. 154-155.) ‘Moreover, “there is a presumption of validity with respect to the affidavit. To merit an evidentiary hearing[,] the defendant[’s] attack on the affidavit must be more than conclusory and must be supported by more than a mere desire to cross-examine. . . . The motion for an evidentiary hearing must be ‘accompanied by an offer of proof . . . [and] should be accompanied by a statement of supporting reasons. Affidavits or otherwise reliable statements of witnesses should be furnished,’ or an explanation of their absence given.” ’ (People v. Benjamin (1999) 77 Cal.App.4th 264, 272, quoting People v. Sandlin (1991) 230 Cal.App.3d 1310, 1316.) Finally, ‘[a] defendant who challenges a search warrant based upon an affidavit containing omissions bears the burden of showing that the omissions were material to the determination of probable cause.’ (People v. Bradford, supra, 15 Cal.4th at p. 1297.)” (People v. Panah (2005) 35 Cal.4th 395, 456 (Panah).)
The denial of a motion for a Franks hearing is reviewed de novo. (Panah, supra, 35 Cal.4th at p. 457.)
3. The Court Properly Denied the Motion to Traverse
Appellant contends that several statements in the affidavit were deliberately false or were stated in reckless disregard of the truth because the Colt was, in fact, legal to possess at the time it was transferred to appellant in 1999. Upon examining the Colt AR-15 receiver that Agent Fox brought to the Franks hearing, defense counsel discovered that it actually was marked by the manufacturer as a “Sporter.” As a result, according to appellant, several assertions in the affidavit were false: (1) Fox’s statement regarding the four guns brought by Syquia to High Bridge Arms that “As of March 31, 1992 all [four] aforementioned firearms were designated as ‘assault weapons;’” (2) the statement that, in 1999, Syquia and Tong were in felony violation of section 12280, subdivision (b), for the transfer of “these assault weapons,” including the Colt; (3) Fox’s statement that “Tong was untruthful in documenting that the Colt rifle, serial # SP228900 was a Sporter;” and (4) Fox’s statement that “[appellant] has already shown a propensity to own firearms illegally.”
The parties disagree about whether the fact that the Colt’s receiver was marked “Sporter,” in addition to “AR-15” and “A2,” rendered it legal, i.e., not an illegal assault weapon, in 1999. The Roberti-Roos Assault Weapons Control Act of 1989, section 12275 et seq. (AWCA) (Stats.1989, ch. 19, § 3), expressly listed as banned the “Colt AR-15 series.” (§ 12776, subd. (a)(5).) Under a procedure by which the Attorney General was permitted to add specific weapons to the list of banned assault weapons, the attorney general adopted a regulation in 2000 that added “Colt Sporter (all)” to the list. (See former section 12276.5, subd. (h); Cal. Code Regs., tit. 11, § 979.11, renumbered as § 5499, subd. (a); see also Harrott v. County of Kings (2001) 25 Cal.4th 1138; Kasler v. Lockyer (2000) 23 Cal.4th 472.) Appellant argues that the Colt at issue herein did not become illegal until 2000, which is after he acquired it.
The Attorney General responds that appellant’s Colt was part of the originally listed “Colt AR-15 series” (§ 12276, subd. (e); Fresno Rifle and Pistol Club, Inc. v. Van De Kamp (9th Cir. 1992) 965 F.2d 723, 726 [“the Colt AR-15 Sporter . . . is listed as an assault weapon under AWCA § 12276(a)(5) . . . .”].), and thus was banned from the time the AWCA took effect, notwithstanding the subsequent addition of “Colt Sporter (all)” to the designated list.
We need not resolve this issue, however, because even assuming that the Colt was legal to transfer and possess in 1999, appellant’s challenges to the affidavit still fall short of the showing required to hold an evidentiary hearing pursuant to Franks. First, appellant has not established that any misstatements or omissions were material. Fox’s alleged misstatements that the four firearms were designated assault weapons in 1992 and that Syquia and Tong had committed felonies by participating in the transfer of those weapons were not factual allegations but, rather, were legal opinions. The statement that appellant had a “propensity” for owning firearms illegally was also an opinion, rather than a factual statement. However, it is the magistrate who determines the legal issues, not the affiant. (See Franks, supra, 438 U.S. at p. 165 [“It is established law [citations], that a warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter.”].) With respect to the statement that Tong was “untruthful” in documenting that the Colt was an A2 Sporter rather than an AR-15, appellant does not explain how that statement was material to the court’s finding of probable cause. Under the presumption of the validity of the warrant, we conclude that the magistrate relied upon factual allegations as distinguished from the affiant’s opinion.
Second, appellant has made no showing that Fox’s failure to state that the rifle was also marked “Sporter” was deliberately false or made in reckless disregard of the truth, as opposed to merely careless. The fact that a simple inspection of the receiver revealed the Sporter marking suggests that the omission was negligent.
Finally, even if we delete the alleged misstatements and include the omitted fact that the lower receiver was marked “Sporter,” the facts set forth in the affidavit would still constitute probable cause for issuing the warrant. The facts established that, by or before 2000, the Colt rifle was an illegal assault weapon; that it had been sold to appellant in 1999; that, despite having worked for a gun dealership, appellant never registered the Colt rifle; and that, within two weeks of the date of application for the warrant, Chinn obtained the lower receiver of the rifle from Tong, who reported to Chinn that he got it from appellant. The purpose of the search was to recover the remaining parts of the unregistered Colt rifle and any other assault weapons that might be present. The trial court did not err in denying the motion to traverse the warrant.
B. The Motion to Suppress Evidence
Appellant argues in the alternative that, even if the affidavit was not defective under Franks, it failed on its face to show probable cause to search appellant’s home for two reasons. First, appellant contends the grounds for believing appellant to be presently guilty of any offense were weak, and second, the grounds for believing evidence would be found in appellant’s home were insufficient.
“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. (Illinois v. Gates (1983) 462 U.S. 213, 238-239; People v. Camarella (1991) 54 Cal.3d 592, 600-601.) ‘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.’ (Illinois v. Gates, supra, [462 U.S.] at p. 238.) . . . The magistrate’s determination of probable cause is entitled to deferential review. (Illinois v. Gates, supra, [462 U.S.] at p. 236; see Skelton v. Superior Court [(1969) 1 Cal.3d 144,] 153 [magistrate’s determination ‘is to be sustained by reviewing courts as long as there was a “substantial basis” for his conclusion that the legitimate objects of the search were “probably present” on the specified premises’].)” (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.)
Under the circumstances set forth in the affidavit, we conclude there was a reasonable probability that a search of appellant’s home would uncover the other parts of the Colt rifle, and possibly other banned firearms. The transfer receipt showed that appellant had purchased the Colt in 1999 while he was employed at High Bridge Arms. However, in 2005, the Colt was unregistered and had never been registered in appellant’s name. The day after Tong told Chinn he would get the Colt rifle from appellant, Tong provided Chinn with the lower receiver of the Colt. Tong told Chinn that appellant had disassembled the weapon and had given him only that part. In addition, appellant had only one home address, which was listed as the address of record for the registration in appellant’s name of numerous vehicles and firearms. Based on these facts, it was reasonable for the magistrate to infer that appellant currently possessed at least one illegal assault weapon. Based on appellant’s having worked at a gun dealership, the magistrate could have concluded that appellant was aware of the laws pertaining to gun ownership, transfer, and registration, and could have concluded that appellant had used his position as a gun dealership employee to obtain the Colt rifle and other illegal assault weapons. The fact that he had only one home address provided a substantial basis for the magistrate to believe that the rest of the Colt rifle, and possibly other assault weapons, would be found at appellant’s residence.
Appellant argues that the evidence that appellant purchased the Colt rifle in 1999 is stale. “Information that is remote in time may be deemed stale and thus unworthy of consideration in determining whether an affidavit for a search warrant is supported by probable cause. Such information is deemed stale unless it consists of facts so closely related to the time of the issuance of the warrant that it justifies a finding of probable cause at that time. 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. [Citation.]” (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.)
However, here, the fact that appellant purchased the Colt rifle in 1999 does not stand alone. Rather, the investigation by Fox and Chinn uncovered other evidence against appellant in February 2005, within two weeks prior to the search on February 24, 2005. Chinn’s telephone conversation with Tong about the four firearms Syquia brought to High Bridge Arms and appellant’s purchase of the Colt took place 13 days earlier, on February 11, 2005. On February 12, Tong gave Chinn the Colt’s lower receiver, telling him that appellant had disassembled the rifle and had given Tong only that part. On February 15, Fox learned that appellant had one home address, eight vehicles registered in his name at that address, and 15 handguns and no assault weapons registered to him. On February 22, two days before the application for the search warrant, Fox verified appellant’s home address. This evidence was recent enough that the magistrate had a substantial basis for concluding there was a fair probability that the Colt rifle was still in appellant’s possession and would be found at the residence.
Appellant next argues that Tong was “an uncorroborated criminal informer” on the issue of appellant’s possession or recent possession of any illegal firearm. “‘[B]ecause they are generally motivated by something other than good citizenship,’” information from a police tipster must be shown to be reliable, as opposed to information from a citizen informant, which is presumed to be reliable. (People v. Kurland (1980) 28 Cal.3d 376, 392-393 (Kurland), italics omitted.) “An affidavit which relies on information from a tipster must set forth underlying facts justifying the conclusion that the source is reliable or the information itself credible. [Citations.] An affiant’s conclusory opinions of reliability or credibility are not enough, and mere quantity and detail in the tipster’s statements do not render them worthy of belief. [Citation.] Reliability must be shown independently, as by corroboration of the information received [citations], the informant’s previous record of accuracy in similar situations [citation], or indications that the informant has spoken against penal interest. [Citation.] If the affidavit includes insufficient details to permit a reasonable belief in probable accuracy, it fails to demonstrate probable cause as a matter of law.” (Kurland, supra, 28 Cal.3d at pp. 392.)
The information from Tong was demonstrated to be sufficiently reliable. Tong’s statement that appellant had purchased the Colt rifle in 1999 was substantiated by the transfer receipt, dated October 9, 1999, which included appellant’s name and birth date, the serial number and description of the firearm, and was signed by Tong. Tong’s statement on February 11, 2005, that appellant was in possession of the Colt rifle was supported by Tong’s delivery the next day to Chinn of the lower receiver. Moreover, Tong’s statements to Chinn were against his penal interest since they tended to implicate him in the illegal transfer of assault weapons, the Colt as well as the other three weapons that were transferred to Bell. The receipts faxed by Syquia to Fox for the transfer of the three guns from Syquia to Bell and for the consignment of the Colt were all signed by Tong, corroborating his statements. Fox opined in the affidavit that Tong’s transfer of assault weapons was in violation of section 12280, subdivision (b), a felony. Tong’s having spoken against his penal interest, as well as Fox’s opinion that Tong’s transfer of assault weapons was illegal, were more than sufficient to place the magistrate on notice that Tong’s information should be viewed as that of an inherently reliable citizen informant rather than merely that of a police tipster.
Appellant contends there was insufficient evidence to believe that seizable property would be found in his home. He relies on People v. Pressey (2002) 102 Cal.App.4th 1178 (Pressey), in which Division Four of this court held that probable cause to search the residence of someone arrested for suspected drug use requires more than a general inference or opinion that drugs were likely to be present. The trial court’s finding of probable cause in Pressey had been based on two circumstances: “(1) [A]ppellant’s arrest, during a traffic stop, for simple possession of controlled substances, as opposed to possession for sale; and (2) the opinion of an experienced officer that drug users with controlled substances on their person or in their car are likely to have more of those substances where they live.” (Id. at p. 1182.) In reversing, the appellate court explained: “This does not mean that probable cause to search a home could never arise from the particularized suspicions of an experienced narcotics officer, or the circumstances of an arrest for drug possession, only that illegal drug use does not necessarily provide probable cause to search the user’s residence, and that such cases must be decided on their own facts. (See Illinois v. Gates, supra, 462 U.S. at p. 238 [reaffirming ‘the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations’].)” (Pressey at p. 1190.)
The holding in Pressey was specifically limited to the question of “whether probable cause to believe that a person uses illegal drugs automatically provides probable cause for a warrant to search the person’s home . . . .” (Pressey, supra, 102 Cal.App.4th at p. 1181.) This case is distinguishable on several accounts. First, possession of drugs for personal use is not analogous to possession of an assault weapon. An assault weapon is not as easily concealed on one’s person, and there was no allegation that appellant was carrying the weapon. Possession of an assault weapon is a more serious offense and poses a greater danger to the public than possession of drugs for one’s own use. The suspected offense, possession of an assault weapon or weapons, and specifically the Colt rifle, was stated with particularity and was based on evidence that appellant purchased the Colt rifle, never registered it, and provided part of it to a third person within days before the warrant was executed. On the other hand, in Pressey, the warrant was based on a generalized suspicion that one who possesses drugs probably keeps more at home. Here, appellant’s only residence was a likely and logical place for the Colt to be found.
In light of our conclusion that the affidavit was sufficient to support the magistrate’s finding of probable cause, we need not and do not reach appellant’s argument that respondent waived any claim of good faith under United States v. Leon (1984) 468 U.S. 897 to avoid exclusion of the evidence.
IV. DISPOSITION
The judgment is affirmed.
We concur: Lambden, J., Richman, J.