P. v. Bruggeman

Filed 10/11/06 P. v. Bruggeman CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Martin Herscovitz, Judge. Modified and affirmed.

Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Thomas Bruggeman, who accepted a plea agreement for his role in a marijuana growth and sales operation, appeals the trial court’s denial of his motion to suppress evidence obtained under a search warrant. He further contends that the court erred in imposing a parole revocation fine because imposition of his sentence was suspended. We conclude that the warrant was supported by probable cause, but that the fine was not authorized. We therefore modify the judgment by striking the fine and affirm.

A portion of the record in this matter was filed under seal based on good cause shown. For this reason, we file this opinion with certain parts redacted.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged in a four-count information with possession of marijuana for sale (Health & Saf. Code, § 11359) (count one); cultivating marijuana (id., § 11358) (count two); maintaining a place for selling or using a controlled substance (id., § 11366) (count three); and grand theft (Pen. Code § 487, subd. (a)) (count four).^[1]

Appellant’s arrest and conviction came about as the result of the search of three houses conducted under a warrant issued August 21, 2002. The searched properties were located on Dumont Street, Mulholland Drive, and Bothwell Road, all in Los Angeles.^[2] Appellant owned the Dumont Street house, co-leased the house on Mulholland Drive, and was in the process of purchasing the house on Bothwell Road. The search uncovered a substantial quantity of living marijuana plants at different stages of growth at all three locations, as well as marijuana plants set out to dry, finished product, fertilizer, grow lights, watering systems, scales, cash, and pay-owe sheets. It was stipulated for purposes of the preliminary hearing, that the total quantity of marijuana found and seized at the three locations weighed over 100 pounds.

There was also evidence of tampering with electric meters and theft of electricity at all three locations. At the preliminary hearing, Los Angeles Department of Water and Power (DWP) personnel estimated the amount lost to be well in excess of $50,000, the bulk of it based on estimated usage at the Mulholland Drive house.

Pretrial Motions

A portion of the search warrant had been sealed to protect the identity of two confidential informants, referred to hereafter as the “NY informant” and the “LA informant.” Appellant moved to discover the identity of the confidential informants and to unseal the confidential portion of the warrant. The court agreed to review the sealed information in camera. Appellant’s counsel provided areas of inquiry for the court to consider in reviewing the information. The court questioned Los Angeles Police Department Detective George Selleh, whose affidavit supported the warrant, reviewed the supporting documents, including the sealed portion of the warrant, in camera, and denied the motions.

The warrant was based in part on information obtained by John Foegel, an investigator for DWP, who had entered the Mulholland Drive property after receiving information from Detective Selleh that there had been electrical meter tampering at that location. Appellant moved to quash and traverse the warrant on the ground that it was the fruit of an illegal search and to suppress the evidence obtained. The court denied the motions.

Plea and Sentence

After his pretrial motions were denied, appellant pled guilty to all four counts. Imposition of sentence was suspended. He was placed on five years probation, on condition he serve 270 days in jail, less credit for time served and good-time/work-time. He was further ordered to pay a $500 restitution fine pursuant to section 1202.4, subdivision (b), a $200 probation revocation fine, suspended unless probation was revoked, pursuant to section 1202.44, and a $500 parole revocation fine, suspended pending successful completion of parole, pursuant to section 1202.45.

DISCUSSION

I

Search Warrant

A. Detective Selleh’s Affidavit

The unsealed portion of the warrant contained the affidavit of Detective Selleh. Detective Selleh stated that he heard from LAPD personnel that the NY informant, who reported to a deputy in the sheriff’s department in Dutchess County, New York, had “[w]ithin the last two months” reported that appellant and Robert Dumas were involved in the cultivation, transportation, and sale of marijuana in the Los Angeles area. On August 13, 2002, Detective Selleh spoke with the New York deputy who confirmed receipt of the information from the “confidential reliable informant“ and informed Detective Selleh that this “CRI” had “provided information in the past, which was proven to be credible and true.”

Detective Selleh had also received information “[w]ithin the last six weeks” from the LA informant that appellant was involved in the cultivation and sale of marijuana. The LA informant was described as “a citizen, known to [Detective Selleh], but who wished to remain anonymous.” After receipt of these tips, Detective Selleh investigated further and learned that appellant and Dumas had both lived in Pawling, New York, at one time and had lived for a time at the same address in Lawndale. Appellant’s current address for purposes of his driver’s license was the Mulholland Drive house. Two vehicles owned or operated by appellant were registered at the Dumont Street address.

Detective Selleh conducted surveillances of the three properties over several days and observed vehicles registered to appellant, Dumas, and Elizabeth Ferron parked at the Bothwell Road house, and a vehicle registered to Ferron parked at the Dumont Street house. A pickup truck seen parked at the Dumont Street house on one occasion was observed being driven by an unknown person from the Mulholland Drive house to the Dumont Street house on another occasion. Detective Selleh learned that the utilities on Dumont Street were in appellant’s name; the utilities on Mulholland Drive were in Dumas’s name; and the utilities on Bothwell Road were in Ferron’s name.

The affidavit stated that Foegel, an investigator for DWP, inspected the electric meter on the Mulholland Drive property “[a]t [Detective Selleh’s] request” and “noted that the meter had been falsified” based on a crack in the meter housing, “which indicated to [Foegel] that the housing had been removed and broken.” Foegel also visually inspected the Bothwell Road property with the aid of binoculars and “advised that the underground pull section was possibly falsified,[^[3]] and the door appeared to have possibly been pried open.” Because of remodeling in progress, Foegel had been unable to visually inspect the Dumont Street meter.

Detective Selleh expressed the opinion that “narcotic traffickers will use multiple locations to grow marijuana [and to] store their narcotics [and] additional paraphernalia associated to trafficking, to include pay-owes, money, and documentation involving narcotics and trafficking. . . . [B]ased on the information contained within this affidavit, and [Detective Selleh’s] observations of activity connecting the three locations, it [was his] opinion that all three [were] involved in the cultivation, transportation and sales of marijuana.”

(Redacted)

(Redacted)

B. Hearing on Motions to Unseal/Discover Identity of Confidential Informants

(Redacted)

(Redacted)

C. Hearing on Motions to Suppress/Traverse

At the pre-trial hearing on appellant’s motion to traverse/quash the warrant, the following evidence was elicited. Appellant testified that he was the co-lessee of the Mulholland Drive house, kept personal possessions there, and slept there on occasion. There was a fence and two locked gates protecting the area around the electric meter. Generally, DWP sent a three-day notice prior to coming onto the property to read the meter, and the gates were unlocked by either appellant or Dumas.^[4] The court ruled that based on appellant’s testimony, he had established an expectation of privacy in the Mulholland Drive property, and that the burden was transferred to the prosecution to demonstrate the legality of the search.

Foegel was called by the prosecution. He testified that Detective Selleh had informed him that an anonymous source had reported possible electrical tampering at the Mulholland address. Foegel attempted to gain entry to the property, but found the meter protected by the fence and locked gates. A few days later, Foegel went to inspect the equipment on a regular meter-reading day, accompanied by the meter reader. The meter reader led Foegel to appellant’s meter through a hole in the fence separating the neighbor’s property from the Mulholland property. This appeared to be the meter reader’s routine method of access. Foegel noticed that there was a crack in the panel on which the meter was mounted and that the panel was not sealed. Both indicated the possibility of tampering.

On cross-examination, Foegel conceded that the crack could have been accidental. He did not remember what he told Detective Selleh about the meaning of the presence of the crack. He did not know whether the occupants of the property had requested a three-day notice prior to DWP reading the meter. However, he saw nothing in the DWP file for the residence to indicate that such notice was regularly requested. The meter-read notice code entered on a page in the file was “0” rather than “02.” The latter would have “indicate[d] they’re getting sent a notice to leave the gate unlocked.”

Detective Selleh testified that he did not recall Foegel saying that the crack in the Mulholland Drive meter panel could have been accidental. He stated that he wrote the information in the warrant affidavit in conformity with what Foegel had told him at the time.

(Redacted)

(Redacted)

D. Trial Court’s Ruling

Relying on People v. Stanley (1999) 72 Cal.App.4th 1547, the trial court ruled appellant had no reasonable expectation of privacy in a DWP electric meter mounted on the outside of his home. The court observed that “[e]very homeowner knows [DWP] employees once a month or once every other month are going to be marching back there to look at the meter.” The court concluded that the evidence was conflicting whether there was an ongoing request for a three-day notice prior to DWP personnel coming onto the property to read the meter, but that even assuming such an arrangement, “[it] does not impact the Fourth Amendment.” In the alternative, the court ruled that even if Foegel’s observations were improper and were disregarded, “there still would remain probable cause for the issuance of the warrant.” Finally, the court found that any discrepancies between Detective Selleh’s affidavit and Foegel’s testimony were not indicative of a “material false statement” in the affidavit.

E. Legality of Foegel’s Inspection

The primary issue raised on appeal is whether the evidence obtained as the result of the search warrant should have been suppressed as the fruit of an illegal search by Foegel. The trial court ruled that the warrant was supported by probable cause, with or without the inclusion of the information obtained by Foegel.

“‘An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] “The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.” [Citations.] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review.’ [Citation.]” (People v. Alvarez (1996) 14 Cal.4th 155, 182, quoting People v. Williams (1988) 45 Cal.3d 1268, 1301; accord, People v. Ayala (2000) 23 Cal.4th 225, 255.)

Addressing first whether Foegel’s visual inspection of the meter at the Mulholland Drive property was in violation of appellant’s Fourth Amendment rights, the trial court concluded it was not. The court found People v. Stanley, supra, 72 Cal.App.4th 1547, controlling. The Stanley court found the defendant had no expectation of privacy in equipment used by the electric company to monitor electricity usage in his house or in the quantity of electricity delivered by the utility to the house.

We agree with the trial court that Stanley is directly on point. There, information from a confidential informant led sheriff’s deputies to suspect marijuana was being grown inside a house owned by defendant Stanley. At the deputies’ request, electric company employees installed a surveillance meter on a pole located on Stanley’s property. The surveillance meter revealed that electricity was being stolen and diverted into Stanley’s house. This information was included in an affidavit in support of a search warrant. Execution of the warrant revealed a marijuana-growing operation. The trial court denied Stanley’s motion to suppress. The court of appeal affirmed, finding Stanley and his co-defendant “ha[d] not established an actual, subjective, and reasonable expectation of privacy in the poles, wires, transformer, and meters within the curtilage of Stanley’s house. Neither did they have a reasonable expectation of privacy in the quantity of electricity delivered by the utility to the house.” (Stanley, supra, 72 Cal.App.4th at p.1554.) Here, as in Stanley, appellant lacked a reasonable expectation of privacy in the readings of his electrical meter or the quantity of electricity being delivered to his house.^[5]

Appellant suggests that Stanley is distinguishable from the instant case because here, the “uncontroverted evidence established that appellant had an arrangement with the DWP under which the DWP would mail him a three-day notice prior to each meter reading.” We disagree. First, the evidence itself was conflicting. While appellant testified that DWP customarily sent a notice three days in advance of the meter reading so the gates could be unlocked, evidence presented by the prosecution indicated this procedure was not being followed. Indeed, on the date in question, the meter reader gave no indication to investigator Foegel that he was not accessing the meter in the usual way. More important, as the trial court recognized, appellant had no unfettered right to refuse access to DWP employees, “especially when we’re dealing with a situation here where the investigator from the Department of Water and Power went out on a regular meter reading day.” The fact that DWP may, on occasion, have notified appellant in advance of its inspection did not make its right to read its meter conditional upon appellant’s consent. In short, the nature of appellant’s alleged arrangement with DWP did not create an expectation of privacy in the readings on the electric meter.

F. Probable Cause

The trial court, after questioning Detective Selleh and the LA informant in closed session, found in the alternative that there was probable cause to issue the warrant without regard to the information supplied by Foegel. In People v. Weiss (1999) 20 Cal.4th 1073, 1081, the court held that the trial court must uphold a warrant if, after excising all “tainted information,” the remaining information establishes probable cause. “Probable cause exists when the information on which the warrant is based is such that a reasonable person would believe that what is being sought will be found in the location to be searched.” (People v. Stanley, supra, 72 Cal.App.4th at p. 1554.) “Probable cause must attach to each place to be searched. [Citations.] . . . [A]n affidavit for a search warrant must contain facts demonstrating a substantial probability that evidence of a crime will be located in a particular place.” (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278.) The affidavit in support of the warrant must do more than state that the affiant “‘”has cause to suspect and does believe”’ that the evidence is located at the targeted premises.” (Id. at p. 1279, quoting Illinois v. Gates (1983) 462 U.S. 213, 239.)

In the present case, if the information from Foegel is disregarded, probable cause rested primarily on the information provided by the two informants. “[P]olice officers may rely on hearsay (an informant’s statements) in obtaining a warrant to search for incriminating evidence.” (Humphrey v. Appellate Division (2002) 29 Cal.4th 569, 573.) It is generally agreed, however, that “unverified information from an untested or unreliable informant is ordinarily unreliable [and] does not establish probable cause unless it is ‘corroborated in essential respects by other facts, sources or circumstances.’” (People v. Johnson (1990) 220 Cal.App.3d 742, 749, disapproved in part on another ground in People v. Camarella (1991) 54 Cal.3d 592, quoting People v. Fein (1971) 4 Cal.3d 747, 752; accord People v. Gotfried (2003) 107 Cal.App.4th 254, 263-264.) But distinctions must be drawn between citizen informants and criminal informants.^[6] The credibility of a citizen informant is “presumptively established if the affidavit alleges sufficient information to show that the informant is what he appears to be, namely, an ordinary citizen. [Citation.]” (People v. Schmidt, supra, 102 Cal.App.3d at p. 178; accord, People v. Galosco (1978) 85 Cal.App.3d 456, 460-461.) “It is reasonable for police officers to act upon the reports of [a citizen] observer of criminal activity.” (People v. Smith, supra, 17 Cal.3d at p. 850.)

The credibility of an informant involved in criminal activity, on the other hand, “is suspect.” (People v. Schmidt, supra at p. 178, italics omitted.) “To establish the credibility of a criminal informant, either he must be shown to have given reliable information in the past with regard to criminal activity, or the information he is presently giving is corroborated.” (Ibid.) In addition, for an affidavit based on an informant’s statements to support the issuance of a search warrant, two additional requirements must be met: “‘(1) the affidavit must allege the informant’s statement in language that is factual rather than conclusionary and must establish that the informant spoke with personal knowledge of the matters contained in such statement; and (2) the affidavit must contain some underlying factual information from which the magistrate issuing the warrant can reasonably conclude that the informant was credible or his information reliable.’” (People v. Smith, supra, 17 Cal.3d at p. 850, quoting People v. Hamilton (1969) 71 Cal.2d 176, 179-180.) In other words, “hearsay information of criminal activity will support a search warrant only if affidavits establish that the informant spoke with personal knowledge and that his information was reliable.” (People v. Kershaw (1983) 147 Cal.App.3d 750, 754.)

Here, the record, including the sealed portions of the affidavit which we have examined at the request of both parties, establishes that the reports of the two informants supported the issuance of the warrant. The NY informant had been tested and found reliable by New York authorities. Although he apparently lacked personal knowledge of the activities he reported, his information was corroborated by the LA informant who was a citizen informant and who possessed personal knowledge of the information related to Detective Selleh. (See People v. Fein, supra, 4 Cal.3d at p. 752 [information from one informant may be corroborated by “other . . . sources”]; People v. Terrones (1989) 212 Cal.App.3d 139, 147 [“The fact that two apparently unassociated persons make the same assertion increases the probability that it is true; the mutually-supporting nature of two tips is an important ingredient in the ‘probable-cause mix’”].) The sealed portion of the affidavit related in detail the information obtained by Detective Selleh from this informant. The information was sufficient to establish the likelihood of a significant marijuana growth and sales operation. Since substantially similar information of criminal activity came from two unrelated sources, one of whom was a citizen informant, the trial court properly found that the information was reliable.

The final issue to be addressed with respect to probable cause is whether the information provided justified the search of all three locations. It is “‘commonly held’” that a warrant for the search of a suspected [narcotics] dealer’s home may be based on “‘the affiant-officer’s experience that drug dealers ordinarily keep their supply, records and monetary profits at home.’” (People v. Pressey (2002) 102 Cal.App.4th 1178, 1183, quoting 2 LaFave, Search and Seizure (3d ed. 1996) § 3.7(d), pp. 378-379, fns. omitted.) In determining whether probable cause exists to search a suspected drug dealer’s residence, “[numerous courts] have observed that the magistrate may ‘”legitimately consider”’ the opinions of experienced narcotics officers in deciding whether there is probable cause to search a suspect’s home for illegal drugs.” (People v. Pressey, supra, at p. 1183.)^[7] Put simply, “‘”[i]n the case of drug dealers, evidence is likely to be found where the dealers live.”’” (U.S. v. Pitts (9th Cir. 1993) 6 F.3d 1366, 1369; see U.S. v. Whitner (3d Cir. 2000) 219 F.3d 289, 297-298 [listing First, Second, Fourth, Sixth, Seventh, Eighth, Ninth, and D.C. Circuit cases for the proposition that “evidence of involvement in the drug trade is likely to be found where the dealers reside”].)

In the present case, information provided by two different and unrelated sources indicated that appellant was growing and selling marijuana. The NY informant was unaware of the specific location of this activity; the LA informant directed suspicion toward one particular location. After investigating further, Detective Selleh sought and obtained a warrant covering three different properties.

Precedent supports the propriety of obtaining permission to search multiple locations if there is evidence of drug dealing and information tying the suspect to multiple residences and potential areas of operation. In People v. Johnson (1971) 21 Cal.App.3d 235, police entered an apartment rented by the defendant pursuant to a search warrant and seized pills, LSD tablets, powdered methamphetamine and paraphernalia for the packing, sale and use of drugs. After learning the defendant had a separate residence, another warrant was obtained, which was challenged in court. The court of appeal concluded that because the items seized at the first location supported that the defendant “was a large scale trafficker in illicit drugs,” the belief that additional drugs would be found at the second location “was reasonable.” (Id. at pp. 242-243.)

In People v. Tuadles (1992) 7 Cal.App.4th 1777, a table delivered by mistake to the wrong address was found to contain several pounds of marijuana. The shipping instructions showed the intended recipient to be “Fred Tuadles” at an address in Long Beach and contained a telephone number that was traced to an address in Cerritos. Police confirmed that Tuadles lived at the Long Beach address and had just rented a vacant apartment downstairs. A warrant was obtained for both Long Beach addresses and the Cerritos address. The Court of Appeal concluded there was a “‘substantial basis’ for the magistrate’s finding of probable cause to issue the instant search warrant” for all three addresses, because “use of [the] telephone number as a ‘call back’ indicates that location was Tuadle’s ‘second home’ or a trusted confederate lived there”; “large scale traffickers commonly use two, three or more residences for their activities”; and “it was the opinion of an experienced, well-trained narcotics officer-expert that narcotics, money, records, and paraphernalia were present in [the Cerritos] residence.” (Id. at p. 1785, fn. omitted.)

Here, the information available to Detective Selleh similarly showed that appellant was using three different residences. His driver’s license listed his address as the Mulholland Drive property. His vehicles were registered at Dumont Street, where he was the title owner and the utilities were under his name. He appeared to be spending significant time at Bothwell Road. Detective Selleh, an experienced narcotics officer, provided his opinion that “narcotic traffickers will use multiple locations to grow marijuana [and to] store their narcotics [and] additional paraphernalia associated to trafficking” and that “all three [locations] are involved in the cultivation, transportation and sales of marijuana.” This, together with the information obtained from the two informants, was sufficient to justify a search of the three locations.

II

Parole Revocation Fine

The remaining issue on appeal is whether the trial court erred in imposing a fine pursuant to section 1202.45, which provides in relevant part: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person’s parole is revoked.” Appellant contends that assessment of the fine was error because imposition of his sentence was suspended, and therefore it did not include a period of parole within the meaning of section 1202.45. We agree.

Several recent cases have held assessment of a section 1202.45 fine is improper where the defendant’s sentence “does not presently allow for parole and there is no evidence it ever will.” (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185; accord, People v. Andrade (2002) 100 Cal.App.4th 351, 356; People v. Tye (2000) 83 Cal.App.4th 1398, 1401; see People v. Hannah (1999) 73 Cal.App.4th 270, 274).

In Oganesyan, the defendant received a sentence of life in prison without the possibility of parole for one count and other, lesser terms for other counts. The trial court had assessed a restitution fine only, and on appeal, the respondent contended that the court had a jurisdictional duty to also assess a parole revocation fine pursuant to section 1202.45. The appellate court disagreed, finding the provisions of 1202.45 did not apply to a convicted felon who received a sentence of life without the possibility of parole: “When there is no parole eligibility, the fine is clearly not applicable.” (70 Cal.App.4th at p. 1183.) The court could foresee an unlikely set of circumstances in which the parole revocation fine might become necessary, such as if the governor granted clemency for the violation that led to the ultimate term. But even then, the fine would not be due unless the defendant were actually released and violated a parole condition. The court applied a “commonsense interpretation” to section 1202.45, and concluded that “because the sentence does not presently allow for parole and there is no evidence it ever will, no additional restitution fine must be imposed.” (Id. at p. 1185.)

The holding in Oganesyan was expanded to suspended sentences in Hannah, supra, 73 Cal.App.4th 270, in which the defendant was sentenced to a period of five years in custody, but execution of the sentence was suspended and he was placed on probation. The court reasoned that due to suspension of execution of the sentence, the defendant was “presently not subject to a parole period” and “will not be absent a revocation of her probation and commitment to prison.” (73 Cal.App.4th at p. 274.) Therefore, “it would be inappropriate to impose a section 1202.45 fine.” (Ibid.)

In People v. Tye, supra, 83 Cal.App.4th 1398, the same court that had decided Oganesyan held that Hannah had gone too far and “was incorrectly decided” because in Hannah, the court had imposed sentence and only the execution had been suspended. (Id. at p. 1401.) The court explained that its decision in Oganesyan applied where imposition of the sentence is suspended. Because defendant Tye’s sentence, like defendant Hannah’s, had been imposed, and only execution had been suspended, their sentences “[did] hold the possibility of a period of parole . . . if probation is revoked and the defendant is committed to prison.” (Ibid.) “The fact that execution of sentence was suspended does not negate the fact that defendant’s sentence . . . includes a period of parole.” (Ibid.) Therefore, when “a prison sentence, including a period of parole, has been imposed and only the execution has been suspended, . . . section 1202.45 applies and the [parole revocation] restitution fine may properly be imposed.” (Ibid.) Although the court in Tye refused to follow Hannah, it agreed that “[t]he conclusion reached by the Hannah court makes sense when probation is granted upon suspension of imposition of sentence, for in that situation the defendant has not been sentenced to a prison term.” (83 Cal.App.4th at p. 1401.)

In People v. Andrade, supra, 100 Cal.App.4th 351, the court reaffirmed its conclusions concerning the distinction between the trial court’s suspending imposition of a sentence and suspending execution of a sentence. There, imposition of the defendant’s sentence was suspended, and the court did not assess the parole revocation fine until it revoked his probation and sentenced him to state prison, four years after the original sentencing. Defendant argued that this violated section 1202.45 because the statute requires the parole revocation fine to be assessed “at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4.” The appellate court disagreed, based on the analysis in Tye: “Had the trial court in the instant case imposed sentence and then suspended execution of sentence, the facts here would be the same as those we considered in Tye. Because in this case imposition of sentence was suspended, we are now called upon to decide whether section 1202.45 applies where the defendant is placed on probation, and a restitution fine under section 1202.4 is imposed at one hearing and a parole revocation fine is imposed at a later time.” (100 Cal.App.4th at p. 356.) The court upheld the trial court, finding that “the parole revocation fine is triggered not when the defendant is convicted but rather when the defendant is sentenced to a prison term.” (Id. at p. 356.)

Here, as in Andrade, the trial court suspended imposition of sentence. Therefore, under the above authorities, the parole revocation fine should not have been assessed. Respondent contends, however, that appellant waived his right to challenge the fine on appeal because he raised no objection at the time of sentencing, his appeal was taken pursuant to section 1538.5, subdivision (m), and he did not seek or obtain a certificate of probable cause pursuant to section 1237.5. Section 1538.5, subdivision (m) permits a defendant to “seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty.” Section 1237.5 provides in part that “[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty” unless “[t]he defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.” (Id. at subd. (a).)

Two exceptions to the certificate requirement are recognized: “[A]n appeal without a probable cause certificate [is permitted] if the appeal ‘is based solely upon grounds (1) occurring after entry of the plea which do not challenge its validity or (2) involving a search or seizure, the validity of which was contested pursuant to section 1538.5 of the Penal Code.’” (People v. Cole (2001) 88 Cal.App.4th 850, 860, quoting Rules of Court, former rule 31(d) (now rule 30(b) (4).) “[T]he critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5.” (People v. Buttram (2003) 30 Cal.4th 773, 782.)

Respondent contends that appellant’s appeal of the fine represents a challenge to the validity of the plea because the trial court informed appellant that the disputed fine, as well as the section 1202.4 restitution fine, were mandatory, and appellant agreed as part of the plea bargain to subject himself to payment of such fines. Appellant counters that sentences imposed in excess of jurisdiction are generally reviewable, regardless of whether an objection or argument was raised in the trial court. (See People v. Smith (2001) 24 Cal.4th 849, 852.)

We do not believe that the present appeal undermines the plea agreement. Respondent does not contend that appellant agreed to pay the $500 parole revocation fine as an integral part of the parties’ plea negotiations. Thus, this is not a situation in which a defendant challenges a portion of his sentence to which he expressly agreed in exchange for a discernible benefit.^[8] Rather, the court’s advisement of the allegedly mandatory fines came only after the parties had reached accord on the essential elements of the agreement. By pointing out that the parole revocation fine was not appropriate where the punishment imposed pursuant to the plea agreement did not include a period of parole, appellant has not attacked the validity of the plea agreement.

DISPOSITION

The judgment is modified by striking the parole revocation fine. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P.J.

SUZUKAWA, J.

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^[1] Statutory references herein are to the Penal Code unless otherwise specified.

^[2] The warrant also permitted search of appellant, co-defendants Robert Dumas and Elizabeth Ferron, and various vehicles. Dumas was appellant’s cousin. Ferron was appellant’s girlfriend.

^[3] Foegel explained that with respect to the Bothwell Road property, “‘falsification’” meant that the security control wire, “utilized by the DWP to deter tampering of the meter head,” had been cut or compromised.

^[4] The court struck the portion of the testimony in which appellant stated that Dumas had contacted DWP to set up the three-day notice arrangement.

^[5] In Stanley, the electric company employees accessed the utility pole on the defendant’s property by leaning a ladder against it from a neighbor’s yard. Appellant suggests that this mode of access distinguishes Stanley from the instant case, where DWP investigator Foegel accessed appellant’s meter by entering his property through a hole in the neighbor’s fence. We see no distinction. In both cases the equipment was located on the defendant’s property. In both cases access was gained through a neighbor’s property. In both cases electric company employees accessed company equipment at the request of law enforcement officers and procured information relevant to usage. It matters not whether they ascended a ladder or walked through a hole in a fence to read the meter.

^[6] As explained in People v. Schmidt (1980) 102 Cal.App.3d 172, 178, “The typical citizen informant is one who has no connection with the criminal element in our society and has himself been the victim of a criminal act or has observed the commission of some act which appears to be criminal. He reports this event to the police. . . . Unlike the citizen informant motivated by virtue who openly gives information to the police, the criminal informant, as the courts generally understand it, is ‘”generally motivated by something other than good citizenship.”’ [Citation.] “ (102 Cal.App.3d at p. 178, quoting People v. Smith (1976) 17 Cal.3d 845, 850-851.)

^[7] See, e.g., People v. Cleland (1990) 225 Cal.App.3d 388, 393 [where defendant was arrested and found to possess a significant quantity of marijuana packed in small bags, the officer’s opinion that people who sell marijuana are unlikely to carry their entire inventory on their person and often keep additional amounts at home justified the issuance of a warrant for the search of the defendant’s residence]; People v. Koch (1989) 209 Cal.App.3d 770, 778-779, disapproved in part in People v. Weiss (1991) 20 Cal.4th 1073, [where the defendant and his companion were arrested in possession of five bindles of heroin, a spoon, two hypodermic syringes, a loaded handgun, a calculator, $3,605 in cash, and a notebook “with notations commonly associated with drug transactions,” it did not require a “‘quantum leap’” to conclude “that additional evidence would then be found in his home”]; People v. Aho (1985) 166 Cal.App.3d 984, 989-992 [where an undercover deputy heard from one source that “Uncle Ray” was “‘the big connection,’” an informant told another deputy that “Uncle Ray Aho” was trading stolen property for drugs, defendant Aho had prior arrests and convictions for possession of drugs, and the deputy expressed the opinion that “persons dealing in controlled substances and stolen property will frequently secrete contraband in closed or locked . . . hiding places within their residence and motor vehicles,” issuance of a warrant was supported by probable cause.

^[8] See People v. Couch (1996) 48 Cal.App.4th 1053, 1057: “When a defendant maintains that the trial court’s sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.”