Filed 6/17/13 P. v. Pelayo CA1/5
Opinion on remand from
Supreme Court
California Rules of Court, rule 8.1115(a), prohibits courts
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
>
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO PLASCENCIA PELAYO, Defendant and Appellant. | A123042 (Solano County Super. Ct. No. FCR243938) |
Appellant,
Antonio Plascencia Pelayo, challenges his conviction and sentence for
possession of ecstasy for sale, and evading a police officer. He challenges the validity of a search
warrant for his residence, which was based primarily on information received
from confidential informants and contained in a partially sealed
affidavit. Pelayo also argues that Penal
Code section 654 bars his punishment for possession of both
methamphetamine and ecstasy for sale.
Finally, he argues that he is entitled to the benefit of
2009 amendments to Penal Code section 4019 which went into effect on
January 25, 2010 pursuant to Senate Bill No. 18 (2009–2010 3d Ex. Sess.)
and increased the good conduct credits available to a defendant for presentence
custody in a local detention facility.
(Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 50.) We find no error and affirm.
On
June 12, 2007, the superior court issued a warrant authorizing a search of
a single-family home at 375 Mountain Meadows Drive in Fairfield and the person
of Pelayo for, among other items, methamphetamine and items associated with the
sale of methamphetamine. In the
supporting affidavit,
Sheriff’s Deputy Detective Dax R. West averred that he had extensive experience
in narcotics trafficking investigations and arrests, and that, “Within the past
ten (10) days, (S) Antonio Pelayo sold Methamphetamine to a Confidential
Informant (CI#2).[
name="_ftnref2" title="">[2]]
Antonio Pelayo that he was the one who sold him/her Methamphetamine.â€
additional information in support of the warrant. West asked the court to file the appendix
under seal in order to protect the confidentiality of informant identity. The court granted the request and issued the
warrant.
On
June 20, 2007, West observed Pelayo driving on public streets and
attempted a traffic stop. Pelayo sped
away and led police on an extended car chase that ended only when a police
vehicle blocked Pelayo’s car. After
Pelayo was placed under arrest, officers searched 375 Mountain Meadows Drive
pursuant to the warrant. There the
officers seized almost two kilograms of methamphetamine, 52 pills containing
both ecstasy and methamphetamine, three loaded firearms stored in three
different locations in the home, a digital scale, pay/owe sheets, indicia of
ownership or residence, $19,375 in U.S. currency, almost $100,000 in jewelry,
three fully-paid vehicles, $11,000 in receipts for electronics, $11,000 in
receipts for furniture, a $10,000 certificate of deposit, and payment records
for a Las Vegas timeshare. Pelayo waived
his Miranda rights, acknowledged
ownership of the methamphetamine, and admitted that he sold methamphetamine to
a select group of about four or five people.
Pelayo was
charged by felony complaint, which was later amended to charge Pelayo with
possession of methamphetamine and ecstasy while armed with a loaded firearm
(Health & Saf. Code, § 11370.1, subd. (a); counts 1 and 2);
possession of methamphetamine for sale and possession of ecstasy for sale
(Health & Saf. Code, § 11378; counts 3 and 4); and evading a
police officer in willful or wanton disregard for the safety of persons or
property (Veh. Code, § 2800.2, subd. (a); count 5). As to count 3, it was alleged that
Pelayo possessed more than one kilogram of methamphetamine within the meaning
of Health and Safety Code section 11370.4, subdivision (b)(1). As to counts 3 and 4, it was alleged
that the quantity of the substance possessed was an aggravating sentencing
factor within the meaning of Penal Code section 1170.73, and that Pelayo
was personally armed with a firearm during the commission and attempted commission
of the crimes, within the meaning of Penal Code section 12022,
subdivision (c). It was further
alleged that counts 1 through 4 were offenses that would render Pelayo
ineligible for probation if convicted except in unusual cases pursuant to Penal
Code section 1203.073, subdivision (b)(2).
Pelayo
moved to unseal the search warrant affidavit, to quash and traverse the search
warrant, and to reveal the identity of the confidential informant. The court conducted an in camera review of
Appendix A to the search warrant affidavit and concluded it supported
issuance of the search warrant. The
court ordered the unsealing of a portion of Appendix A that explained how
West determined that 375 Mountain Meadows likely was Pelayo’s residence. The court specifically declined to unseal the
details of police contacts with two confidential informants referenced in the
appendix, which might disclose their identities.
The
unsealed excerpt from Appendix A explained that West did a “work up†on Pelayo
and found two vehicles registered in his name at 375 Mountain Meadows Drive in
Fairfield (a 2006 Hummer and a 2006 Chrysler), and four vehicles registered in
his name at 2267 Atherton Court in Fairfield (a tan Chevrolet pickup with
license plate no. 8E80904, a 2004 BIGDG motorcycle, a 1988 Ford, and a
1963 Chevrolet). The address listed on
Pelayo’s 2005 driver’s license was 2267 Atherton Court. Pelayo owned 375 Mountain Meadows Drive, and
Esperanza Zavala owned 2267 Atherton Court.
The Fairfield Police Department informed West that in December 2006
they responded to an alarm call at 375 Mountain Meadows Drive and a person with
the surname Pelayo was the contact person.
West drove by 2267 Atherton Court and saw a car there that was
registered to Zavala. At 375 Mountain
Meadows Drive, the Chevrolet pickup registered to Pelayo was parked in the
driveway. Another detective had observed
that same pickup truck during surveillance of a narcotics transaction.
Pelayo
waived his right to a preliminary hearing. Both parties waived jury trial. On September 25, 2008, following a bench
trial, the court convicted Pelayo of counts 3, 4 and 5, and granted the
People’s motion to dismiss counts 1 and 2.
At
sentencing, the court denied Pelayo’s motion to strike the Health and Safety
Code section 11370.4, subdivision (b)(1) allegation and grant him
probation. The court sentenced Pelayo to
the low term of 16 months for count 3, a consecutive eight-month term
(one-third the middle term) each for counts 4 and 5, a three-year
enhancement pursuant to Health and Safety Code section 11370.4,
subdivision (b)(1) for count 3, and a three-year enhancement pursuant
to Penal Code section 12022, subdivision (c) for count 3. A three-year enhancement pursuant to Penal
Code section 12022, subdivision (c) for count 4 was stayed. The total term was eight years, eight months.
A. Challenges to Search Warrant
Pelayo asks
this court to conduct an in camera
review of the sealed portions of the search warrant affidavit to determine
if they were properly sealed and whether the search warrant was supported by
probable cause.
The test
for determining whether an affidavit establishes probable cause for the
issuance of a search warrant is a “totality-of-the-circumstances
analysis.†(Illinois v. Gates (1983) 462 U.S. 213, 238 (Gates); see In re
Lance W. (1985) 37 Cal.3d 873, 896 [evidence may be suppressed only if
it was seized in violation of the federal constitution].) “The task of the issuing magistrate is simply
to make a practical, common-sense decision whether, given all the circumstances
set forth in the affidavit before him, . . . there is a fair
probability that contraband or evidence of a crime will be found in a
particular case.†(Gates, at p. 238.)
When an
affidavit consists in part of an informant’s tip to the police, the informant’s
veracity, reliability and basis of knowledge are relevant considerations in the
totality-of-the-circumstances test, but no single factor is determinative. (Gates,
supra, 462 U.S. at p. 233.)
“[A] deficiency in one [of these elements] may be compensated for, in
determining the overall reliability of a tip, by a strong showing as to the
other, or by some other indicia of reliability.
[Citations.]†(
Indicia of reliability include prior accurate reports by the informant,
a lack of ulterior motives in making the report, explicit and detailed
description of the alleged wrongdoing, the informant’s first-hand observation of
the alleged wrongdoing, and corroboration by independent police work. (Id.
at pp. 233–234, 241.)
When the
sufficiency of a search warrant
affidavit is challenged on appeal, “the duty of a reviewing court is simply to
ensure that the magistrate had a ‘substantial basis for . . .
conclud[ing]’ that probable cause existed.
[Citation.]†(
pp. 238–239.) “[A]fter-the-fact
scrutiny by courts of the sufficiency of an affidavit should not take the form
of de novo review. A magistrate’s ‘determination of probable
cause should be paid great deference by reviewing courts.’ [Citation.]â€
(Id. at p. 236.) Moreover, “ ‘the resolution of doubtful
or marginal cases in this area should be largely determined by the preference
to be accorded to warrants.’
[Citation.] This reflects both a
desire to encourage use of the warrant process by police officers and a
recognition that once a warrant has been obtained, intrusion upon interests
protected by the Fourth Amendment is less severe than otherwise may be the
case.†(Id. at p. 237, fn. 10.)
In
Court authorized the sealing of a search warrant affidavit when necessary to
protect the identity of a confidential informant, and prescribed a procedure to
review the sufficiency of a sealed affidavit.
(People v. Hobbs (1994) 7
Cal.4th 948, 971–975 (Hobbs).) Hobbs
directed that “[w]hen a defendant seeks to quash or traverse a warrant where a
portion of the supporting affidavit has been sealed, the relevant materials are
to be made available for in camera review by the trial court. (Hobbs,
supra, 7 Cal.4th at p. 963; see
Evid. Code, § 915, subd. (b).)
The court should determine first whether there are sufficient grounds
for maintaining the confidentiality of the informant’s identity. If so, the court should then determine
whether the sealing of the affidavit (or any portion thereof) ‘is necessary to
avoid revealing the informant’s identity.’
(Hobbs, supra, 7 Cal.4th at p. 972.)
Once the affidavit is found to have been properly sealed, the court
should proceed to determine ‘whether, under the “totality of the circumstancesâ€
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’ (if the defendant has moved to quash the warrant) or ‘whether the
defendant’s general allegations of material misrepresentations or omissions are
supported by the public and sealed portions of the search warrant affidavit,
including any testimony offered at the in camera hearing’ (if the defendant has
moved to traverse the warrant). (
v. Galland (2008) 45 Cal.4th 354, 364.)
We have
conducted our own in camera review of the sealed portions of
Appendix A and have considered each of the issues Hobbs directs us to assess.
We conclude the trial did not err in either its denial of Pelayo’s motion
to unseal the search warrant affidavit or his request to reveal the identity of
the confidential informant. We also find
that the “totality of the circumstances†presented in the search warrant
affidavit established a fair probability that contraband or evidence of a crime
would be found in Pelayo’s residence.
1.
Grounds to Maintain Confidentiality of Informant
Generally, disclosure of a
confidential informant’s identity is required only if the informant was a
potential material witness on the issue of guilt in the defendant’s case. (Hobbs,
supra, 7 Cal.4th at p. 959.) In
contrast, “the identity of an informant who has supplied probable cause
need not be disclosed where such disclosure is sought merely to aid in
attacking probable cause.†(
Our review of the sealed portion of the affidavit confirms that the
confidential informants mentioned therein were not material witnesses to the
possession and evasion charges with which Pelayo was charged. Therefore, the trial court properly refused
to disclose the informants’ identities.
2. Necessity of Sealing the
Affidavit
Because the trial court properly
refused to disclose the identities of the confidential informants, the court
was justified in keeping sealed any portions of Appendix A that would have
disclosed the informants’ identities.
(See Hobbs, supra,
7 Cal.4th at p. 972.) The
trial court determined that only part of the appendix potentially disclosed the
identities of the informants, and it ordered the unsealing of other material
portions of the appendix. Our review of
the portion of the appendix that remains sealed confirms that disclosure of any
material information contained therein might lead to identification of the
informants. Therefore, we affirm the
trial court’s decision to keep that part of the appendix under seal.
3.
Cause to Issue Search Warrant
Having determined that much of the
search warrant affidavit must remain under seal, the trial court had to “take
it upon itself both to examine the affidavit for possible inconsistencies and
insufficiencies regarding the showing of probable cause, and inform the
prosecution of material or witnesses it requires.†(Hobbs,
supra, 7 Cal.4th at p. 973.)
The trial court concluded the affidavit on its face established probable
cause, without the necessity of calling witnesses or production of other
evidence. Our review confirms that the
sealed and unsealed portions of the affidavit, without more, provided a
substantial basis for the magistrate’s probable cause determination. Information provided by an initial informant
about a drug sale was directly corroborated by the police. Information provided by the second informant
identifying Pelayo as the drug seller was substantially corroborated by the
police. Moreover, the affidavit included
an expert opinion that Pelayo was an upper-midlevel dealer and this opinion is
supported by information provided by one informant and uncovered by the police
investigation. This information
established probable cause to believe Pelayo was a drug dealer, and a
magistrate may reasonably conclude that evidence of drug dealing is likely to
be found in a drug dealer’s residence.
(See People v. Pressey (2002)
102 Cal.App.4th 1178, 1184 [listing cases].)
Therefore, the affidavit established probable cause to believe drugs
would be found at Pelayo’s residence and thus to issue the search warrant.
4. Material
Misrepresentations
Our review of the sealed portion of
the affidavit discloses no basis to suspect that it contains knowingly or
recklessly false representations material to the finding of probable
cause. (See Hobbs, supra, 7 Cal.4th at p. 974.)
In conclusion, we affirm the trial
court’s decisions to maintain the confidentiality of the informants mentioned
in the search warrant affidavit, to keep a portion of the affidavit under seal
to maintain that confidentiality, to affirm the magistrate’s finding of
probable cause to issue the warrant, and to deny Pelayo’s motions to traverse
the warrant and suppress the evidence seized pursuant to the warrant. Because these are Pelayo’s only challenges to
his conviction, we affirm his conviction.
B.
Pelayo argues that section 654
bars imposition of sentences for both counts charging possession for sale under
Health and Safety Code, section 11378—count 3 (possession of
methamphetamine) and count 4 (possession of ecstasy). Pelayo notes that the pills found in his
possession contained both ecstasy and methamphetamine and argues he cannot be
multiply punished for the single act of possessing these pills, citing
argument, however, ignores the fact that crystal methamphetamine was also found
in Pelayo’s possession.
Section 654 prohibits multiple
punishment for an “act or omission which is made punishable in different ways
by different provisions of this Code†or by the penal provisions of other
codes, including the Health and Safety Code.
(In re Adams, supra,
14 Cal.3d at p. 633; see § 654.)
“If one offense is necessarily included within another offense,
section 654 bars punishment for both offenses. [Citation.] . . . [¶] The
reach of section 654 is not limited, however, to necessarily included
offenses. [Citation.] By its terms, the
section forbids multiple punishments for the commission of a single ‘act’ or
‘omission.’ The ‘act’ necessary to
invoke section 654 need not be an act in the ordinary sense that it is a
separate, identifiable, physical incident, but may be ‘a course of conduct
which violates more than one statute and comprises an indivisible transaction
punishable under more than one statute within the meaning of
section 654. The divisibility of a
course of conduct depends upon the intent and objective of the actor, and if
all the offenses are incident to one objective, the defendant may be punished
for any one of them but not for more than one.’
[Citation.]†(
or multiple?†(Id. at p. 635; see also People
v. Latimer (1993) 5 Cal.4th 1203, 1216 [criticizing but reaffirming this
“intent and objective†interpretation of § 654].)
In In re Adams, the Supreme Court held that the petitioner was
improperly sentenced for five counts of transporting drugs based on the single
act of delivering an attaché case and several plastic bags containing five
different types of drugs to another person’s car, since the “petitioner’s
simultaneous transportation of the various drugs in his possession was clearly
motivated by the single objective of delivering them to [a single
person].†(In re Adams, supra, 14 Cal.3d at pp. 632, 635.) The court distinguished cases holding that
simultaneous possession of different
types of drugs may properly be multiply punished, and commented, “In each of
the[se] drug possession cases, the defendant’s possession may or may not have
been motivated by a single intent and objective, for one may possess drugs for
a variety of reasons.†(
“Whether a course of criminal
conduct violating more than one penal statute is committed with a single
criminal intent or with multiple criminal objectives is ordinarily a question
of fact for the trial court, whose implied finding of multiple criminal intent
will be upheld if supported by substantial evidence.†(People
v. Green (1988) 200 Cal.App.3d 538, 543–544.) The court below presided over Pelayo’s bench
trial and thus was well acquainted with the evidence against him. That evidence showed that Pelayo possessed
about two kilograms of methamphetamine in a white crystalline form, stored
in large plastic bags, and also possessed 52 pink pills containing both
methamphetamine and ecstasy. The trial
court implicitly found that Pelayo had separate criminal objectives for
possessing the methamphetamine powder and the ecstasy/methamphetamine pills,
and that finding is supported by the record.
The trial court could easily infer from the evidence that Pelayo had
separate criminal objectives to sell crystal methamphetamine and to sell the
pills that contained a combination of ecstasy and methamphetamine. Moreover, Pelayo admitted to police that he
sold drugs to several people, and evidence uncovered in his home (three
firearms stored at three locations, a digital scale with white residue, and
pay/owe sheets) supported an inference that Pelayo conducted an ongoing,
large-scale drug sales operation serving multiple customers.
In contrast to a single act of
transportation and delivery of multiple types of controlled substances,
“ ‘[t]he act of possession cannot be conceptualized as a single ‘act’
covering possession of two kinds of illicit drugs.’ [Citation.]â€
(In re Adams, supra,
14 Cal.3d. at p. 635.) Possession
of two types of drugs in large amounts supports the inference that Pelayo intended
multiple sales to different customers.
“Under [such] circumstances, section 654 does not prohibit punishment
for each drug offense.†(
524, 529–530.)
Pelayo also argues that he cannot be
multiply punished for the possession of methamphetamine in both power and pill
form, citing People v. Schroeder
(1968) 264 Cal.App.2d 217 (Schroeder). Schroeder,
however, held that a defendant cannot be multiply convicted of the possession of different forms of the same drug. (Id.
at p. 228.) Pelayo was not multiply
convicted for possession of methamphetamine and his reliance on
narcotics under different classifications of the Health and Safety Code may be
charged and punished as separate crimes notwithstanding a simultaneous
possession constituting but one transaction.â€
(Ibid.) For the reasons already discussed, he was
properly punished for both possession of ecstasy and possession of
methamphetamine.
C.
4019
Pelayo argues that the 2009 amendments to
section 4019, which took effect in January 2010, and have since been
superseded, must be retroactively applied to his case under the authority of
re Estrada (1965) 63 Cal.2d
740 (Estrada). With certain exceptions not applicable here,
the amendments increased the good conduct credits a defendant could receive for
time spent in presentence custody.
The Supreme Court resolved this issue in
applied prospectively only. (
p. 318.) The court specifically
held that the Estrada rule did not
apply: “The holding in
‘ “[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the
lesser penalty or the different treatment is sufficient to meet the legitimate
ends of the criminal law†’ (
inference that the Legislature intended the lesser penalty to apply to crimes
already committed. In contrast, a
statute increasing the rate at which prisoners may earn credits for good
behavior does not represent a judgment about the needs of the criminal law with
respect to a particular criminal offense,
and thus does not support an analogous inference of retroactive intent. Former section 4019 does not alter the
penalty for any crime; a prisoner who earns no conduct credits serves the full
sentence originally imposed. Instead of
addressing punishment for past criminal conduct, the statute addresses
providing increased incentives for good behavior.†(Brown,
at p. 325, fn. omitted.)
Brown compels
our rejection of Pelayo’s argument that he is entitled to additional
presentence custody credits.
The
judgment is affirmed.
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P. J.
_________________________
Simons, J.
in this appeal on February 16, 2010.
In that opinion, we addressed only the search warrant and
section 654 issues that had been raised in Pelayo’s appellate briefs. We affirmed the judgment. On February 22, 2010, before our opinion
became final, Pelayo filed a petition for rehearing seeking the benefit of 2009 amendments to
section 4019, which had taken effect in January 2010. We granted the petition for rehearing,
vacated our original decision, and after supplemental briefing issued a new
opinion on May 6, 2010, that granted Pelayo the retroactive benefit of the
amendments to section 4019. On July 21,
2010, the Supreme Court granted the People’s petition for review and deferred
the case pending a decision in People v.
Brown (No. S181963). On
June 18, 2012, the Supreme Court issued its decision and held that the
2009 amendments to section 4019 did not have retroactive effect. (People
v. Brown (2012) 54 Cal.4th 314, 318 (Brown).) On May 16, 2013, the Supreme Court
transferred this case back to this court “with directions to vacate its
decision and to reconsider the cause in light of†Brown. We have vacated the
prior opinion by separate order. The
People filed a supplemental letter brief pursuant to California Rules of Court,
rule 8.200(b)(1), and Pelayo informed us that he did not intend to file
supplemental briefing.
information, set forth in the sealed portion of the search warrant affidavit,
from another confidential informant identified as CI#1.
