P. v. Weaver

Filed 2/22/07  P. v. Weaver CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells and Gale E. Kaneshiro, Judges.  Affirmed.

            After the court denied a motion to quash a search warrant and suppress evidence (Pen. Code, §  1538.5),^[1] Danny W. Weaver entered guilty pleas to being a felon in possession of a firearm (§  12021, subd. (a)(1)) and ammunition (§  12316) and possession of narcotics paraphernalia (Health & Saf. Code, §  11364).  He admitted having been convicted of two prior strikes (§§  667, subd. (b)(1), 1170.12, 668).  The court struck the prior strikes, suspended imposition of sentence on the convictions of unlawfully possessing a firearm and ammunition, placed him on three years' probation for those convictions and imposed a sentence of time served on the conviction of possession of narcotics paraphernalia.  He contends the trial court erred in denying his motion to quash the search warrant and suppress evidence.

FACTS

            On October 6, 2005, the trial court issued a search warrant for a residence located at 1931 Burton Street.  The location was described as a two-story house " having a tan stucco exterior with brown wooden panels, having the numbers '1931' in light brown letters located on a post next to the front door" , and " there are two sets of green Astroturf green stairs leading to a porch in front of the residence."   On October 12, San Diego Narcotics Detective Kimber Hammond executed the warrant.  Hammond described the house as having an upstairs and a downstairs with two different entries.  She testified " [t]he upstairs goes to the living room, and the place that we made entry went to the basement where Mr. Weaver lives."    She testified that stairs went from the basement to the living room of the house.  In the basement area, the detective found weapons, ammunition, methamphetamine pipes and a straw to snort methamphetamine.

            In the motion to suppress evidence, Weaver argued that the contraband was found in premises he identified as 1931 1/2 Burton not 1931 Burton.  At the hearing on the motion to suppress, he offered mail addressed to him at 1931 1/2 Burton.  Weaver, a friend of Weaver, and Weaver's father testified that Weaver lived in the lower portion of the house, and the address 1931 1/2 was on a placard outside the door on the night before his arrest.

            The People presented evidence that Weaver gave 1931 Burton as his address on a pawn receipt and gave 1931 Burton as his address on his driver's license.  Detective Hammond testified she has never received information that the address of the basement was 1931 1/2 Burton Street.

            After hearing the evidence, the trial court found the address of the basement was not relevant.  The search warrant authorized officers to search the entire residence at 1931 Burton Street top and bottom.  The court noted Weaver's driver's license and a pawn slip identified his residence as 1931 Burton.  It concluded " that the entire residence that is identified with the numbers of 1931 on the front of it, which did include the basement area, was authorized by the search."

DISCUSSION

            " The standard of appellate review of a trial court's ruling on a motion to suppress is well established.  We defer to the trial court's factual findings, express or implied, where supported by substantial evidence.  In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.  [Citations.]"   (People v. Glaser (1995) 11 Cal.4th 354, 362.)  We affirm a judgment supported by substantial evidence.  (People v. Johnson (1980) 26 Cal.3d 557, 576.)  Substantial evidence is evidence of legal significance, reasonable in nature, credible and of solid value.  (People v. Samuel (1981) 29 Cal.3d 489, 505.)  We must review the entire record most favorably to the judgment below and presume in support of the judgment the existence of every fact the fact finder could reasonably deduce from the evidence.  If the evidence permits a reasonable trier of fact to conclude as did the trial court, the opinion of a reviewing court that the circumstances may also be reconciled with a contrary finding does not warrant reversal.  (See Jackson v. Virginia (1979) 443 U.S. 307.)

            To guard against general searches, a search warrant must particularly describe the place to be searched.  (Maryland v. Garrison (1987) 480 U.S. 79, 84.)  A search warrant has sufficient particularity " if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended."   (People v. Amador (2000) 24 Cal.4th 387, 392.)  A warrant search has been upheld although the warrant stated the wrong street number and incorrectly described the house as having two stories when it only had one (id. at p. 396), where the warrant had the wrong lot number and wrong roof color (People v. Superior Court (Fish) (1980) 101 Cal.App.3d 218, 225), and where the warrant stated the wrong street address (United States v. Turner (9th Cir. 1985) 770 F.2d 1508, 1511.)  The key is that the warrant adequately identified the place to be searched.  (People v. Amador, supra, at pp. 392-393.)  Here, the place to be searched identified in the warrant was 1931 Burton Street.  Weaver presented witnesses who testified that the basement had the address of 1931 1/2 Burton Street.  He argued that the premises searched were not the premises identified in the search warrant.  However, to the contrary was evidence that 1931 Burton Street was the only address for the residence containing an upstairs and a basement that is visible from the street, 1931 Burton is the address Weaver gave to the Department of Motor Vehicles for his driver's license and the address he gave to pawn property.  Additionally, there was no evidence the basement portion of the house in which Weaver lived was posted with any address other than 1931 Burton Street when the search warrant was executed, and when the officers entered the basement, they introduced themselves to Weaver and read the search warrant that identified the premises to be searched as 1931 Burton Street.  Weaver did not indicate that the premise in the basement was 1931 1/2 and not 1931 Burton Street.  The record contains substantial evidence that the premises recited on the search warrant included the entire house at 1931 Burton Street, including the basement Weaver now attempts to call 1931 1/2 Burton Street.

DISPOSITION

            The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

                                   McINTYRE, J.

                                   O'ROURKE, J.

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^[1]           All statutory references are to the Penal Code unless otherwise specified.