Filed 10/20/17 P. v. Ramirez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey and John S. Somers, Judges.[1]

Richard Leslie Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant George Ramirez contends the trial court erred when it denied his motion to quash and traverse a search warrant without first conducting an evidentiary hearing pursuant to Franks v. Delaware (1978) 438 U.S. 154 (Franks). He contends the case must be remanded for the trial court to conduct a Franks hearing. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Around 9:00 a.m. on October 8, 2014, Deputy Sheriff Darren Wonderly executed a search warrant at 550 Acacia Avenue in Shafter. Ramirez and Cindy Olivo were in the residence in the southwest bedroom. Wonderly searched the bedroom, finding paperwork addressed to Ramirez. In a zippered shaving kit, Wonderly found two plastic baggies with a total of over 100 grams of methamphetamine, a digital scale, marijuana, plastic packaging material, and six live .38 caliber bullets.

Another deputy, Gabriel Romo, found pay-and-owe sheets inside a black bag near the paperwork bearing Ramirez’s name. Inside a safe in the bedroom were three glass smoking pipes and a Ruger Mark II semiautomatic .22 pistol with 11 live rounds.

While the search was being conducted, a cell phone in the bedroom rang. Romo answered the cell phone and the caller, who identified himself as Joseph, asked for “George.” Romo told Joseph that Ramirez was in the restroom; Joseph asked if he could come over and purchase a “dime.” Romo understood this to mean Joseph was asking to purchase “$10 worth of narcotics.” Romo told Joseph he could come over to the location.

When Joseph arrived at the location, he whistled and Romo stepped out the front door and met Joseph. Joseph produced the cash for the purchase, after which Joseph was detained by deputies. Joseph admitted to the deputies that he was there to purchase narcotics from Ramirez and that he had done so in the past at that location.

The Kern County District Attorney charged Ramirez with possession of a controlled substance while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a); count 1); possession of a controlled substance for sale while personally armed with a loaded firearm (Health & Saf. Code, § 11378, Pen. Code,[2] § 12022, subd. (c); count 2); maintaining a place for the sale of controlled substances while armed with a firearm (Health & Saf. Code, § 11366; § 12022, subd. (a)(1); count 3); felon in possession of a firearm (§ 29800, subd. (a)(1); count 4); felon in possession of ammunition (§ 30305, subd. (a); count 5); and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364; count 6).[3]

Ramirez entered a plea of not guilty. Thereafter, on March 17, 2016, Ramirez filed a motion to quash and traverse the warrant pursuant to section 1538.5 and suppress the items seized during the execution of the search warrant. The People filed written opposition to the motion. A hearing on the motion to quash and traverse the search warrant eventually was held on August 25, 2016, at which time the trial court denied the motion.

On September 2, 2016, Ramirez pled no contest to counts 2 and 4 in exchange for an agreed upon concurrent two year sentence and dismissal of all other counts and enhancements. At the November 1, 2016 sentencing, the trial court imposed sentence in accordance with the plea agreement. The midterm of two years was imposed for the count 2 offense and a concurrent two-year term was imposed for the count 4 offense.

On November 2, 2016, Ramirez filed a timely notice of appeal, challenging the denial of his suppression motion.

DISCUSSION

Ramirez contends the trial court erred when it denied his motion to quash and traverse the search warrant without first conducting an evidentiary hearing in accordance with Franks. We disagree.

Standard of Review

Under Franks, a defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause in support of a search warrant. A trial court must conduct a hearing only if a defendant makes a substantial showing that (1) the affidavit contains statements that are deliberately false or made in reckless disregard for the truth, and (2) the affidavit’s remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause. (People v. Scott (2011) 52 Cal.4th 452, 484 (Scott).) This court reviews the denial of a Franks hearing de novo. (People v. Sandoval (2015) 62 Cal.4th 394, 410 (Sandoval).)

In reviewing a ruling on a motion to suppress, we defer to the trial court’s factual findings, express or implied, when supported by substantial evidence. (People v. Ayala (2000) 24 Cal.4th 243, 279.) We exercise independent judgment as to whether, on the facts so found, there was a valid search and seizure. (People v. Tully (2012) 54 Cal.4th 952, 979 (Tully).) We may affirm on any basis, regardless of the grounds relied upon by the trial court. (People v. Brooks (2017) 3 Cal.5th 1, 39.)

Factual Summary

The motion to traverse and quash the warrant asserted that in his affidavit, Peace Officer Martin Cervantes intentionally omitted the outdated address on Ramirez’s driver’s license, and deliberately lied when he asserted the address to be searched was obtained from a recent booking photo. The motion argued that after deleting the false information, there was insufficient probable cause to support the issuance of the search warrant.

The moving papers included the affidavit in support of the warrant. The affidavit stated that a confidential informant (CI) had reported that Ramirez was selling methamphetamine. Cervantes stated that he searched the “Shafter computer system” and located “a prior booking picture” of “Ramirez with the listed address of 550 Acacia Avenue.” Cervantes stated information about Ramirez’s driver’s license, but omitted the address.

The affidavit went on to state that the CI was provided with money and asked to make contact with Ramirez to purchase methamphetamine from him. Cervantes and other officers staked out the 550 Acacia residence and watched as Ramirez came out of that house, made contact with the CI, and after about two minutes, return to the house at 550 Acacia. Cervantes contacted and debriefed the CI, who provided Cervantes with the methamphetamine purchased from Ramirez during the exchange.

Also included with the motion was email communication between the prosecutor and defense counsel confirming the address of 550 Acacia was not attached to any booking photo, but obtained from the Criminal Justice Information System (CJIS).

The trial court denied the motion, finding that Cervantes’ personal observation of the 550 Acacia Avenue address, where he observed a CI make contact with Ramirez and purchase methamphetamine from Ramirez, provided independent knowledge that Ramirez was selling drugs from that location sufficient to support issuance of the warrant. The trial court held that after omitting the incorrect information in the affidavit that the source of the 550 Acacia address was a booking photo, there still was sufficient probable cause to support the issuance of the search warrant.

Analysis

Here, the affidavit incorrectly stated the 550 Acacia address was obtained from a booking photo, when it was not. Assuming Ramirez has satisfied the first prong of the Franks test by showing the affidavit contained deliberately false statements or statements made in reckless disregard for the truth, he has failed to meet the second prong. After excising the false statements, the affidavit contains sufficient evidence to support a finding of probable cause.

Probable cause is defined as the state of facts that would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion the defendant was guilty of a criminal act. (People v. San Nicolas (2004) 34 Cal.4th 614, 654.) Probable cause may exist even if the facts leave some room for doubt. (People v. Mower (2002) 28 Cal.4th 457, 473.) A reviewing court may not substitute its judgment as to the weight of the evidence for that of the trial court, and every legitimate inference that may be drawn from the evidence must be drawn. (People v. Williams (1988) 44 Cal.3d 883, 924-925.)

The affidavit contained independent evidence that Ramirez was selling methamphetamine from the 550 Acacia Avenue address. Cervantes personally observed Ramirez come from the 550 Acacia address, make contact with the CI, and go back to 550 Acacia; Cervantes personally verified that the CI purchased methamphetamine from Ramirez during the transaction. This transaction and Cervantes’ observations took place within ten days of the signing of the affidavit. Observations made within 30 days of preparation of the affidavit and warrant support a probable cause finding that criminal activity is taking place at the location. (People v. Hulland (2003) 110 Cal.App.4th 1646, 1655.) Personal observations of a peace officer can supply the probable cause for issuance of a warrant. (See People v. Gomez (2004) 117 Cal.App.4th 531, 540-541; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1719-1720.)

As for Ramirez’s claim that the omission of the address on his driver’s license triggered the necessity for a Franks hearing, we fail to see how this affects the probable cause determination, which is based upon and supported by Cervantes’ personal observations. It appears the driver’s license information was used by Cervantes to identify Ramirez’s date of birth, and possibly the photo from the license was the one shown to the CI, who identified Ramirez from a photo prior to engaging in the controlled buy of methamphetamine. We do not see how omission of an incorrect address from the driver’s license could be material information; the affiant need only disclose material facts. (Sandoval, supra, 62 Cal.4th at p. 410.)

Furthermore, we do not see how omission of an outdated address on a driver’s license constitutes a “deliberately false” statement in the affidavit, which is a prerequisite for triggering a Franks hearing. (Scott, supra, 52 Cal.4th at p. 484.) Not all omissions make an affidavit inaccurate. (Sandoval, supra, 62 Cal.4th at p. 410.) Omission of outdated information generally is not relevant to a probable cause determination. (People v. Lee (2015) 242 Cal.App.4th 161, 172-173.)

Conclusion

We conclude from our de novo review that Ramirez was not entitled to an evidentiary Franks hearing because even if false statements were contained in the affidavit, the affidavit contained sufficient probable cause after these statements were excised. (Sandoval, supra, 62 Cal.4th 394.)

Because the affidavit supporting the issuance of the search warrant contained sufficient probable cause after excising any false statements, the trial court correctly denied Ramirez’s motion to quash and traverse the warrant. (Tully, supra, 54 Cal.4th at p. 979.)

DISPOSITION

The judgment is affirmed.