P. v. Patton

Filed 7/13/07 P. v. Patton CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Madera County. Edward P. Moffat, Judge.

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.

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Michael Patton challenges not only the denials of his two motions to quash search warrants and suppress evidence but also the imposition of an aggravated term without jury findings on circumstances in aggravation and the calculation of his presentence custody credit. The Attorney General contests both search issues and the aggravated term issue but agrees with Patton on the presentence custody credit issue. We will concur with the parties on the presentence custody credit issue and will remand for a new sentencing hearing on the aggravated term issue but otherwise will affirm the judgment.

PROCEDURAL HISTORY

1. Madera County No. MCR016970

On November 3, 2003, a criminal complaint charged Patton with possession of cocaine base for sale (Health & Saf. Code, 11351.5) and possession of marijuana for sale (Health & Saf. Code, 11359) on October 30, 2003. He filed a motion to quash the search warrant and suppress the evidence, the prosecutor filed an opposition, and the court denied the motion.

2. Madera County No. MCR017286

On June 8, 2004, a second amended indictment charged Patton with, inter alia, selling or offering to sell cocaine base (Health & Saf. Code, 11352, subd. (a)), on December 3, 2003 while on bail or on his own recognizance (bail-or-OR) in Madera County No. MCR016970 (Pen. Code,  12022.1). On his guilty plea and admission, the court imposed an aggregate term of 7 years consisting of a 5-year aggravated term plus a 2-year bail-or-OR enhancement.

3. Madera County No. MCR019546

On August 27, 2004, a criminal complaint charged Patton with, inter alia, possession of cocaine base for sale (Health & Saf. Code, 11351.5), on August 25, 2004 while on bail or on his own recognizance in Madera County Nos. MCR016970 and MCR017286(Pen. Code, 12022.1). He filed a motion to quash the search warrant and suppress the evidence, the prosecutor filed an opposition, and the court denied the motion.

4. Consolidated Madera County Nos. MCR016970A&B

On April 12, 2005, a consolidated information charged Patton with possession of cocaine base for sale (Health & Saf. Code, 11351.5) and possession of marijuana for sale (Health & Saf. Code, 11359) on October 30, 2003 (as in original Madera County No. MCR016970) and with possession of cocaine base for sale (Health & Saf. Code,  11351.5) (as in original Madera County No. MCR019546) on August 25, 2004, with a prior for selling or offering to sell cocaine base (drug-prior) (Health & Saf. Code,  11352, subd. (a), 11370.2, subd. (a)) (new to Madera County Nos. MCR016970A&B) while on bail or on his own recognizance in Madera County No. MCR017286 (Pen. Code, 12022.1) (similar to original Madera County No. MCR019546) and with resisting an officer (resisting) (Pen. Code, 148, subd. (a)(1)) (new to Madera County Nos. MCR016970A&B) on August 25, 2004.

During voir dire, the court granted Pattons motions to bifurcate trial on the prior and the on bail or own recognizance allegation. Just before the reading of the verdicts, Patton admitted the prior and the on bail or own recognizance allegation. The jury found him guilty as charged.

The court imposed an aggregate 15-year 4-month term consisting of a 5-year aggravated term for selling or offering to sell cocaine base (Health & Saf. Code, 11352, subd. (a)) on December 3, 2003, plus a 2-year bail-or-OR enhancement (Pen. Code,  12022.1) (previously imposed in Madera County No. MCR017286); a 1-year 4-month (one-third middle) term for possession of cocaine base for sale (Health & Saf. Code,  11351.5) and an 8-month (one-third middle) term for possession of marijuana for sale (Health & Saf. Code, 11359) on October 30, 2003; a 1-year 4-month (one-third middle) term for possession of cocaine base for sale (Health & Saf. Code, 11351.5) on August 25, 2004, plus a 3-year drug-prior enhancement (Health & Saf. Code, 11352, subd. (a), 11370.2, subd. (a)) and a 2-year bail-or-OR enhancement (Pen. Code,  12022.1); and to time served for resisting (Pen. Code, 148, subd. (a)(1)).

DISCUSSION

1. Motions to Quash Search Warrants and Suppress Evidence

Patton challenges the denial of his motions to quash the search warrants and suppress the evidence seized on October 30, 2003, and August 25, 2004. The Attorney General argues that the court did not err in denying both motions.

a. Search and Seizure of October 30, 2003

After reviewing, inter alia, the affidavit, the court denied Pattons motion. The affiant, a six-year veteran probation officer on assignment to the Madera County Narcotic Enforcement Team (MADNET) with education and experience in criminology and illegal narcotics, chronicled law enforcements receipt of information in support of the warrant.

On October 4, 2003, MADNET received an anonymous tip about suspicious activity and traffic and people in and out at all hours at the target residence. On October 9, 2003, Madera police received a telephone call from a citizen informant (CI #1) reporting that users were purchasing narcotics from the target residence in the area where CI #1 lived and that people were offering for sale items CI #1 believed were stolen.

On October 13, 2003, MADNET received an anonymous tip about in and out traffic at the residence after known drug dealers moved in a few weeks earlier and about the tipsters belief that people at the residence were selling crack cocaine. On October 18, 2003, Madera police received a letter from a citizen informant (CI #2) who observed drug deals at the target residence and who reported that there was foot and vehicle traffic occurring all hours of the day and that the people who arrive at the residence do not stay more than five minutes. On October 23, 2003, after seeing a car parked in the driveway of the target residence, the affiant determined that Patton was the registered owner and that he had prior arrests for possession of cocaine for sale, possession of cocaine base for sale, possession of a controlled substance while armed, carrying a loaded firearm in a public place, possession of marijuana while driving, and possession of marijuana for sale. On the basis of her training and experience, the affiant stated that people involved in the sales of controlled substances run the risk of robbery and other physical harm and often carry firearms to protect themselves and the product they are selling.

On October 28, 2003, the affiant and another narcotics agent conducted a county jail interview of a confidential informant (CI #3) seeking leniency in a pending criminal case who said several males were selling crack cocaine from the target residence. On October 29, 2003, MADNET received information from a citizen informant (CI #4) that several males were selling drugs from the target residence, that there was heavy vehicle traffic there, and that sometimes the same vehicles returned within a few hours to buy more drugs. On the basis of her training and experience, the affiant stated that foot and vehicle traffic observed by MADNET agents at the target residence was consistent with Pattons involvement in narcotics sales from a residence.

On October 29, 2003, a search warrant issued. On October 30, 2003, a narcotics task force executing the warrant found Patton in bed at the target residence with 25 rocks of cocaine weighing 7.3 grams between the mattress and the box spring. Elsewhere in the residence, officers found, inter alia, 10.2 grams of pure bud marijuana inside a cigar box and a digital scale with cocaine residue inside a dresser drawer.

b. Search and Seizure of August 25, 2004

After reviewing, inter alia, the affidavit, the court denied Pattons motion. The affiant, a police officer on assignment to MADNET with investigative experience in over 200 drug cases and with expert witness experience in court, chronicled law enforcements receipt of information in support of the warrant. The affiant reviewed a police report dated July 15, 2004, documenting the statements of a person in custody for possession of cocaine base that six times she bought rock cocaine from the target residence by driving her vehicle there and waiting for someone to walk outside with the rock cocaine in hand. The affiant reviewed a police report dated July 17, 2004, documenting the statements of a person in custody for possession of drug paraphernalia and battery on a peace officer that he had bought cocaine base from the target residence three times a week in the past two months.

The affiant reviewed a police report dated July 25, 2004, documenting the statements of a person in custody for possession of cocaine base that she had bought cocaine base from a person at the target residence three times a week in the past two months and that the person from whom she bought there also sold cocaine base from her vehicle. The affiant reviewed a MADNET case report about the execution of a search warrant on the target residence on May 28, 2004, resulting in the seizure of 3.0 grams of cocaine base, 15.1 grams of marijuana, a live marijuana plant, and $500 in cash and in two arrests for possession of cocaine base for sale and one arrest for possession of marijuana for sale and cultivation of marijuana.

On August 4, 2004, a Madera police sergeant spoke with a citizen informant (CI) whom he characterized as a responsible and credible adult who provided information for the good of the community about his or her personal knowledge of cocaine base use and sales at the target residence. The CI stated that a person at the target residence who used heroin on a daily basis allowed people who bought heroin for her to sell drugs there. The CI stated that rock cocaine was cut and stored in specific areas of the target residence and in the body cavities of the people who sold drugs there. The CI stated that Patton was a main supplier to the target residence who drove to Fresno on a daily basis to buy two or three ounces of rock cocaine, carried a loaded handgun beneath the drivers seat of his vehicle, and dated a woman who sold rock cocaine from the target residence.

On August 9, 2004, Madera police dispatch received an anonymous tip about people arriving in cars, on bicycles, and on foot to purchase drugs at the target residence. On the same day, a special agent received an anonymous tip from a neighbor about a person who parked his vehicle in front of the target residence, walked to the front door, where he spoke with a man, walked to a vehicle on the property, where a woman handed him something she thought was a drug purchase, and drove away.

On August 17, 2004, a search warrant issued authorizing, inter alia, cavity searches. On August 25, 2004, a narcotics task force executing the warrant found a plastic bag containing four rocks of cocaine base weighing 0.8 grams in Pattons posterior, $305 in his pants pocket, and $695 in his girlfriends bra. Drug dealers commonly have their significant others hold money for them.

c. Governing Law

Although reviewing courts have a duty to conscientiously review the sufficiency of affidavits on which warrants are issued, nonetheless a determination of probable cause should be paid great deference by reviewing courts. (Illinois v. Gates (1983) 462 U.S. 213, 236, 239 (Gates).) Probable cause is a fluid concept turning on the assessment of probabilities in particular factual contexts. (People v. Thompson (2006) 38 Cal.4th 811, 818 (Thompson), quoting Gates, at p. 232.) It is incapable of precise definition. (Thompson, at p. 818, quoting Maryland v. Pringle (2003) 540 U.S. 366, 371.) Only if the affidavit fails as a matter of law to set forth sufficient competent evidence to support the magistrates finding of probable cause can a reviewing court disturb the ruling on appeal. (People v. McDaniels (1994) 21 Cal.App.4th 1560, 1564.)

In assessing the overall reliability of an anonymous tip, totality-of-the-circumstances analysis not only guides a reviewing courts determination of probable cause but also allows a strong showing of one circumstance to compensate for a weak showing of some other circumstance. (Gates, supra, 462 U.S. at p. 233.) Officers generally can depend on information received in official channels to develop probable cause for a search warrant affidavit. (People v. Lopez (1986) 181 Cal.App.3d 842, 845.) Independent police corroboration of information from an anonymous tipster demonstrates his or her reliability just as interlocking or mutually supportive statements by different informants with no apparent association with each another enhance the credibility of each. (People v. Terrones (1989) 212 Cal.App.3d 139, 146-147, citing, e.g., United States v. Yarbrough (9th Cir. 1988) 852 F.2d 1522, 1533.) Both affidavits here pass constitutional muster by totality-of-the-circumstances analysis.^[1]

2. Imposition of Aggravated Term

Patton challenges the imposition of an aggravated term without jury findings on circumstances in aggravation. The Attorney General argues that he forfeited his right to appellate review by not objecting at the probation and sentencing hearing and that the imposition of the aggravated term was proper.

Preliminarily, we turn to the Attorney Generals forfeiture argument. At the time of the probation and sentencing hearing, the law in California allowed the court to find circumstances in aggravation by a preponderance of the evidence. (People v. Black (2005) 35 Cal.4th 1238 (Black), overruled by Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856; 127 S.Ct. 856] (Cunningham) and vacated sub nom. Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36, 127 S.Ct. 1210].) Not until afterward did Cunningham hold that permitting the imposition of an aggravated term on the basis of facts that a court finds true by a preponderance of the evidence instead of on the basis of facts that a jury finds true beyond a reasonable doubt violates the federal constitutional right to a jury trial. (Cunningham, supra, at p. __ [166 L.Ed.2d at p. 864; 127 S.Ct. at p. 860].) Since an objection at the probation and sentencing hearing on the ground that the jury had to find circumstances in aggravation beyond a reasonable doubt would have been futile, Patton did not forfeit his right to appellate review. (See People v. Diaz (2007) 150 Cal.App.4th 254, 260.) We turn, then, to the merits of his argument.

The probation officers report noted two circumstances in aggravation (1) numerous prior convictions and juvenile adjudications and (2) prior unsatisfactory performance on probation and no circumstances in mitigation. (Cal. Rules of Court, former rules 4.421(b)(2), (b)(5), 4.423^[2]; cf. former 1170, subd. (b)^[3].) At the probation and sentencing hearing, the court relied solely on Pattons numerous prior convictions and juvenile adjudications, and not at all on his prior unsatisfactory performance on probation, in imposing a 5-year aggravated term for selling or offering to sell cocaine base (Health & Saf. Code, 11352, subd. (a)):

As to Count 1, the felony violation of Section 11352(a) of the Health and Safety Code court finds there are no mitigating factors and he has prior convictions and adjudications which are numerous. So, therefore, the court finds the circumstances in aggravation to preponderate. And so as to Count 1, the courtll impose for the violation of Section 11352(a) of the Health and Safety Code five years state prison, the aggravated term.

The authority for the courts finding that Patton had numerousprior convictions and juvenile adjudications is former rule 4.421(b)(2): The defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness. (Italics added.) The word numerous means consisting of great numbers of units: existing in abundance: many, plentiful. (Websters 3d New Internat. Dict. (1986) p. 1550.) The probation officers report shows that Pattons prior convictions and juvenile adjudications indeed were numerous. He had a petty theft (Pen. Code, 488) in 1990, a throwing of any substance capable of doing serious bodily harm at a vehicle or an occupant with intent to do great bodily injury (Veh. Code, 23110, subd. (b)) in 1991, two vandalisms (Pen. Code, 594) in 1993, a first degree burglary (Pen. Code, 459) in 1994, a possession of marijuana (Health & Saf. Code, 11357, subd. (b)) in 1998, a discharge of a firearm in a grossly negligent manner (Pen. Code,  246.3) in 1999, and a sale of a controlled substance (Health & Saf. Code, 11352, subd. (a)) while on bail or own recognizance release (Pen. Code, 12022.1, subd. (a)(1)) in 2003.

Patton argues, however, that the court improperly relied in part on his juvenile adjudications, at which he had no right to a jury trial. That raises an issue not before the sentencing court at his probation and sentencing hearing. Likewise, the courts choice to rely solely on his numerous prior convictions and juvenile adjudications, and not at all on his unsatisfactory performance on probation, antedated Cunningham. We are loath, as a reviewing court, to deny the sentencing court the exercise of the discretion that is intrinsically within the province of that court. So, without intimating any opinion on the merits of Pattons arguments, we will vacate the sentence in toto and remand for a new sentencing hearing to give that court the opportunity to structure an overall sentence in compliance with Cunningham.

3. Presentence Custody Credit

In consolidated Madera County No. MCR016970A (original Madera County No.MCR016970), Patton argues, the Attorney General agrees, and we concur that the court erred, through inadvertent omission of a leap day, in calculating his presentence custody credit. Since a sentence that fails to award presentence custody credit as mandated by law is subject to correction at any time, we will grant the relief that Patton requests. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)

DISPOSITION

The sentence is vacated in toto and the matter is remanded for a new sentencing hearing at which the court is directed to structure an overall sentence in compliance with Cunningham, to modify the judgment, if necessary, to reflect that sentence, to modify the judgment, in any event, to reflect an award of 118 days of presentence custody credit and 34 days of presentence conduct credit for a total of 152 total days in consolidated Madera County No. MCR016970A (original Madera County No.MCR016970), to issue an amended abstract of judgment, and to forward certified copies of the amended abstract of judgment to all appropriate persons. Otherwise the judgment is affirmed.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Hill, J.

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^[1] In light of our holdings, we address neither partys arguments about the good faith exception (see United States v. Leon (1984) 468 U.S. 897) and reject out of hand Pattons arguments that his attorney rendered ineffective assistance of counsel by failing to renew the motions denied before the respective preliminary hearings (see People v. Lilienthal (1978) 22 Cal.3d 891, 896; People v. Hinds (2003) 108 Cal.App.4th 897, 900). As the law neither does nor requires idle acts (Civ. Code, 3532), so an attorney has no duty to make a futile request (People v. Anderson (2001) 25 Cal.4th 543, 587).

^[2] Cited are the versions of the rules in effect at the time (until January 1, 2007).

^[3] Applicable at the time was the version of the statute in effect until the post-Cunningham amendment that, inter alia, substituted choice of the appropriate term shall rest within the sound discretion of the court for court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. (Stats. 2004, ch. 747, 1; cf. Stats. 2007, ch. 3, 3, effective March 30, 2007.)