P. v. Berry

Filed 7/19/07 P. v. Berry CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

After he pled guilty to three counts in an eight-count information pursuant to a plea agreement, appellant was sentenced to a total of four years and four months in prison. He appeals, claiming that the trial court erred in denying his Penal Code section 1538.5 motion,^[1] a motion based on the contention that, as to one of the two properties of appellant searched by law enforcement, the affidavit pursuant to which a search warrant was issued was based on stale information and was unreasonably relied on by the officers who executed it. We disagree and hence affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

On January 28, 2005, Sergeant James Noe (Noe) of the Mendocino County Sheriffs office executed an affidavit in support of a request for issuance of a search warrant authorizing the search of two properties owned in whole or in part by appellant. The first was a cannabis buyers club owned and operated by appellant on Talmage Road in Ukiah and the second was a property jointly owned with his brother on Masonite Road, also in Ukiah. This affidavit will be described further below. The warrant was duly issued the same day and served on February 1, 2005. That service resulted in the sheriffs office seizing 845 marijuana plants and clones, marijuana cultivation equipment and packaging materials, a scale, marijuana already separated into bags, business records of appellant, and a 12-gauge shotgun. Some of these items were seized at the Talmage property and others at the Masonite property.

On March 15, 2005, the Mendocino County District Attorney filed an eight-count information against appellant. That information charged appellant with two counts of possession of marijuana for sale (Health & Saf. Code,  11359), one count of cultivation of marijuana (Health & Saf. Code,  11358), one count of sale of marijuana (Health & Saf. Code,  11360, subd. (a)), three counts of failure to file state income tax returns (Rev. & Tax Code,  19706), and one count of unlawful acquisition of state supplemental security income (Welf. & Inst. Code,  10980, subd. (c)). Regarding count two, the information also charged that appellant was armed with a firearm.

On August 23, 2005, the trial court denied appellants section 1538.5 motion to quash the search warrant.

On February 3, 2006, appellant pled guilty to one count of possession of marijuana for sale, one count of failure to file state income tax returns, and the sole count of unlawful acquisition of state supplemental security income. In exchange, two of the remaining counts of the information were dismissed with a Harvey waiver (People v.Harvey (1979) 25 Cal.3d 754), and the remainder, including apparently the firearm enhancement, dismissed outright.

On May 19, 2006, appellant was sentenced, as noted, to a maximum term of four years and four months in state prison. He filed a timely notice of appeal.

III. DISCUSSION

The Noe affidavit, upon which the search warrant for the two properties was based, starts out by describing the items for which the requested-search is directed; that portion consumes a little over a page. Next, about the same amount of space is consumed by descriptions of (1) the two properties to be searched and Noes experience in the Mendocino County sheriffs office in general and its Marijuana Eradication Team in particular.

Then, the affidavit reverts to a description of evidence suggesting the growing of marijuana by appellant at both properties, and its sale by him to various and sundry people at the two properties listed and elsewhere. This description starts with a 2005 detention by another officer in the Laytonville area, a detention resulting in the transfer to Noe of information involving the purchase of fifty-cloned marijuana plants at appellants Talmage property.

The affidavit then reverts to more of a chronological order, starting with incidents in 2002 and 2003, all detailing the involvement of appellant in the sale of substantial amounts of both marijuana, cloned marijuana plants and marijuana buds, and the presence of a van on the Masonite property that, according to appellants daughter-in-law, contained over seventy pounds of marijuana.

The affidavit then shifts to 2004, and a statement in that year by appellants brother to another deputy sheriff that appellant had marijuana growing at Masonite Road but after the injunction [apparently obtained by his brother] he moved the marijuana to another location, where marijuana was also seen.

The affidavit then moves forward to early 2005 and recites that Noe and another deputy walked through property behind the Talmage property and both smelled marijuana and heard a generator apparently running to provide power to a building on that property. Noe then opines that he believed appellant was operating his marijuana club (located on the Talmage property) as a way to avoid the laws pertaining to the sales of marijuana and continues by stating: Information was provided to me that there was marijuana growing at the Masonite Road address and the Talmage road address during this period, and then notes that the former property was half-owned by appellant according to the county assessors records.

The affidavit then concludes with several separate and distinct conclusions of Noe, the first being: It is based on the totality of the circumstances from this investigation that [I believe appellant] is cultivating and selling marijuana for profit from both 1291 Talmage Road and 5021 Masonite Road. I believe based on my experience and training those records of cash transactions along with records of the sales of marijuana will be found at both locations. I believe that the records will consist of both computer of [sic: or] electronic storage devices and written records I also believe that both processed and growing marijuana will be found at both locations.

The two and a half page search warrant that was issued on January 28, 2005, and served three days later first lists the items and material to be sought by the officers and then, in one paragraph, cites the two properties to be searched; the penultimate paragraph of the warrant then details that the search of those properties shall also include all rooms, including basements, attics, storage spaces, file cabinets, trash containers, safes, appurtenant buildings, the surrounding grounds and all containers therein and thereon which could contain any of the items sought that are located on or connected to said location or associated with said location by number, letter or other means.

Significantly, both in the court below and here, appellant attacks the sufficiency of the Noe affidavit only as regards his Masonite Road property. In other words, appellant specifically does not contest that probable cause existed for the sheriffs office to search his Talmage Road marijuana club premises. More specifically, appellant contends that that information in the Noe affidavit regarding the Masonite property was at least five months old by the time the search warrant was obtained and executed. This argument is premised on the (apparent) fact that, at the time the search warrant was executed, appellant no longer resided there because of a dispute with the co-owner, his brother.

At the section 1538.5 hearing, Noe admitted that he knew appellant was not living there during 2000 to 2003, although he didnt know the status of it [the dispute between appellant and his brother] at the time the search warrant was served. However, appellant concedes that, at the time of the service of the warrant, he was still a co-owner of the Masonite property.

Put another way, the Noe declaration does not delineate or separate appellants activities in, around or concerning, the Masonite property and otherwise. Thus, our first problem is with appellants rather puzzling contention that the Noe affidavit was sufficient to permit a search of one of appellants Ukiah properties but not the other. We reject this contention for several reasons.

First of all, and most importantly, the Noe affidavit was distinctly not directed at what items might be at one property versus the other. They set forth all the material and items sought with absolutely no distinction between which might be at one location and which at another. Put another way, the subject of the Noe affidavit was not one or the other specific properties of appellant, but appellant himself and his activities regarding the marijuana business in the Ukiah area. All of that activity involved the alleged illegal sale and/or possession of marijuana, equipment pertinent to its packaging and sale, records relevant to that subject, etc., etc. This, we conclude, clearly justified the search of both properties owned, in whole or in part, by appellant and regarding which Noe and/or his sources had seen or learned of information suggesting either illegal activities or illegal on those properties.

Second, although there was some mention in the Noe affidavit about appellant moving out of the Masonite property and (at least during 2000-2003) residing elsewhere, and also a concession to that effect by Noe at the section 1538.5 hearing, no affirmative evidence was introduced by appellant at that hearing or otherwise that, at the time of the service of the search warrant, appellant was not residing there.

Third, appellant concedes that, at the time of the service of the warrant, he in fact owned a one-half interest in the Masonite property.

Fourth and finally, we reject appellants argument because of the very discretionary standard of review applicable to a case such as this. As our Supreme Court has held: Reviewing courts normally give great deference to a warrant. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. [Citations.] (People v. Weiss (1999) 20 Cal.4th 1073, 1082-1083.) As several appellate courts have written: On appeal we accord the magistrates determination great deference, inquiring only whether there was a substantial basis to conclude that the warrant would uncover evidence of crime. (People v. Deutsch (1996) 44 Cal.App.4th 1224, 1232; see also, to the same effect, People v. Garcia (2003) 111 Cal.App.4th 715, People v. Stanley (1999) 72 Cal.App.4th 1547, 1554-1555; 720-721; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.)

IV. DISPOSITION

The judgment of conviction is affirmed.

_________________________

Haerle, J.

We concur:

_________________________

Kline, P.J.

_________________________

Lambden, J.

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^[1] All subsequent statutory references are to the Penal Code, unless otherwise noted.