THE PEOPLE v. OSCAR AGUILERA

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. OSCAR AGUILERA, Defendant and Appellant.

B220825

Decided: January 26, 2011

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Shira B. Seigle, Deputy Attorney General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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Defendant Oscar Aguilera appeals his conviction of one count of possession of a controlled substance while armed with a firearm (Health & Saf.Code, § 11378) and one count of battery on a police officer resulting in injury (Pen.Code, § 243, subd. (c)(2)).   He contends the search warrant on his home was not supported by probable cause.   We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On September 6, 2007, at approximately 5:20 a.m., at defendant's residence at 8051 Agnes Avenue in North Hollywood, Burbank Police officers executed a search warrant.   After entering the residence, officers encountered a closed and locked bedroom door with a “peephole.”   Officers kicked the door in, entered the room, and found defendant in a very combative state.   Defendant threw a knife at one of the officers, who pointed his weapon at defendant.   Defendant rolled onto the floor next to the bed and reached for a sawed-off shotgun near the head of the bed.

The police officers tried to pin defendant down by grabbing his arms and legs, but defendant struggled with them, hitting and kicking.   Officers ordered defendant to stop fighting and put his hands in a position to be handcuffed.   Defendant reached for a wrench.   The officers were able to handcuff defendant, but not before defendant hit one of the officers in the face and bit him on the forearm, and bit one of the other officers in the thumb.

Police recovered from defendant's bedroom several items that had gang paraphernalia on them, such as writings or taggings.   Police found a sweatshirt emblazoned, “ ‘Vineland,’ ” 1 a loaded sawed-off shotgun, an amount of methamphetamine (.66 gram) inside a cassette recorder on the stereo, a scale, and three California identification cards.   Police also found a paper with handwritten notes, numbers, and names consistent with “pays and owes” for the sale and trafficking of narcotics.   Police believed defendant possessed the narcotics for sale based on the peephole in the bedroom door, the presence of the narcotics, the scale, and the pays-and-owes information.   Further, police believed defendant possessed these items to benefit or promote the Vineland Boys street gang.

Defendant was charged in a five-count information with (1) possession of a controlled substance with a firearm (Health & Saf.Code, § 11370.1, subd. (a));  (2) possession for sale of a controlled substance (Health & Saf.Code, § 11378);  (3) assault upon a police officer (Pen.Code, § 245, subd. (c));  and (4) two counts of battery with injury upon a police officer (Pen.Code, § 243, subd. (c)(2)).   The information further alleged as to all counts that they were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members.

Defendant entered a plea of not guilty and denied the special allegations.

After defendant's motion to quash search warrant and suppress evidence pursuant to Penal Code section 1538.5 was denied, defendant withdrew his not guilty plea and pled guilty to count 1 (possession of a controlled substance) and count 4 (battery with injury on a police officer) in exchange for a maximum term of seven years and a dismissal of counts 2, 3, and 5 and the special allegations.   Defendant was sentenced to an aggregate term of four years, consisting of the upper term of three years on count 4 and a consecutive term of one third of the middle term, or one year, on count 1.

DISCUSSION

Defendant contends that the statement of probable cause in support of the search warrant executed on his home violated his federal and state constitutional rights to be free of unreasonable searches and seizures.   He contends the officer's statement of probable cause mentions him only in passing;  the statements relating to him are largely hearsay;  the statement of probable cause fails to document specific acts or incidents involving him, instead naming other gang members;  and it contains only one statement relating to defendant's purported criminal activities.   Instead, he contends most of the facts alleged in the warrant pertain to other gang members and the affidavit offers a baseless opinion that defendant was part of the Vineland Boys drug organization.   The telephone conversations in which he was mentioned and the letter attached to the warrant did not implicate him in any criminal activity, further, nothing in the probable cause statement contains any facts or information that he did anything unlawful at the Agnes Avenue residence or linked the residence to any criminal activity.   In sum, the affidavit provided nothing more than guilt by association.

A. Factual Background.

1. The Search Warrant.

The search warrant 2 for defendant's residence sought, among other things, evidence of street gang membership;  paraphernalia relating to the Vineland Boys gang (documents and other materials in electronic or written form, videotapes, audiotapes, photographs, drawings, or objects depicting gang membership and gang graffiti on the walls or furniture within the residence);  list of persons who are or may be determined to belong to any criminal street gang;  firearms and firearm accessories;  and amphetamine and methamphetamine and paraphernalia commonly associated with its sale and packaging (sales, packaging materials, glass vials, plastic baggies, foil, sifters, screens, recordation of sales in books, ledgers, pay-and-owe sheets, and large sums of cash).

Officer Steve Karagiosian, a Burbank police officer who had been involved in numerous drug and gang-related investigations and who had qualified as a narcotics expert, prepared the certificate of probable cause attached to the search warrant.   The warrant requested a search of the residence, persons and vehicles of defendant and Javier Torres, Jr. (known as “Klay”).

Officer Karagiosian's affidavit stated that on September 1, 2007, Officers Nichols and Baumgarten of the Burbank Police Department contacted and spoke to Saul Valdez (Polarbear) and Ivan Flores (Dice), both documented members of the Vineland Boys gang, during a traffic stop in Burbank.   The officers learned that Valdez had an outstanding warrant for possession of a dangerous drug, and obtained consent to search the vehicle from Flores.   Officers found a glass smoking pipe, which they recognized as used in smoking methamphetamine, in the rear of the truck.   The officers also found suspected methamphetamine baggies, two handguns, and several handgun magazines in a cup holder in the center console of the vehicle.   Both handguns were loaded.   Neither gun was registered to Valdez or Flores, and a records check determined they had been stolen.

Flores had in possession a letter written by him to Gabriel Garcia (Goofy), a Vineland Boys gang member who was incarcerated at Delano State Prison, in which Flores stated that he was back in the San Fernando Valley area and staying with Phaze (defendant's moniker) and Klay. In the letter, Officer Karagiosian understood that Flores confirmed with Garcia that Flores would retaliate against Spanks (Marco Garcia) for disrespecting the Vineland Boys gang.3

At the traffic stop, the officers placed Flores and Valdez under arrest for violations of Health & Safety Code section 11370.1 (possession of controlled substances while armed with a firearm).   As a follow up to the arrest, Detective Stohl obtained a search warrant for Valdez's residence on Gager Street in Los Angeles.   During the search, officers found two boxes of ammunition under Valdez's bed, and a “ ‘pay-and-owes' ” list for firearms that contained a description of the two weapons found in the Flores's car at the September 1, 2007 traffic stop.4

Office Karagiosian's affidavit stated that the Vineland Boys were known for their multi-state drug trafficking ring and had a reputation for violence.   Members of the gang had been convicted for interstate transportation of illegal narcotics, and arrested for weapons sales and possession.   A recent federal task force had seized numerous firearms, including automatic weapons, from members of the gang.   The gang was known for shootings and homicides, including two killings of police officers.   Its members were responsible for vandalism, grand theft auto, carjacking, narcotic sales, witness intimidation, and murder.

On September 2, 2007, Officer Karagiosian interviewed Flores.   Flores admitted to being a member of the Vineland Boys gang, and admitting writing the letter to Goofy because the gang believed Spanks gave information to the police leading to the arrest of Goofy.   The gang wanted to retaliate against Spanks.   Flores indicated he would “ ‘take care’ ” of Spanks when he found him, but did not admit he was going to kill Spanks.   Officer Karagiosian confirmed that Marco Garcia provided information leading to the arrest of Goofy.

While in jail, Flores and Valdez made numerous phone calls to Phaze and Klay, who were checking the Sheriff's Department website to determine the status of the Vineland Boys members who were in custody.

In Officer Karagiosian's opinion, Flores, Valdez, Gabriel Garcia, defendant, and Torres were part of the Vineland Boys multi-level interstate narcotic organization, and were working to retaliate against Marco Garcia.   Officer Karagiosian had ascertained defendant's residence from Department of Motor Vehicle records and a utility company check.   Further, in Officer Karagiosian's opinion, gang members were known to conceal weapons and ammunition in their residences for future use, and gang members who trafficked in narcotics kept narcotics at their residences.   Additional items related to drug trafficking, such as “pay-and-owe” ledgers and money were also kept at gang members' residences.

2. Defendant's Motion to Quash.

Defendant moved to quash the search warrant executed on his residence and to suppress evidence pursuant to Penal Code section 1538.5.   Defendant contended the attesting officer relied on hearsay statements relating to two other gang members (Saul Valdez and Ivan Flores) and a letter in their possession referring to Phaze, which is defendant's gang moniker.   Further, the officer did nothing more than list activities by the Vineland Boys, defendant's gang, without any source for these assertions.   Further, the only facts of which the officer had personal knowledge-phone calls Flores and Valdez made while in jail-only referred to defendant's lawful conduct in searching the sheriff's website.   Defendant contended the officer provided no facts that he was a member of a gang or engaged in gang activity or that he participated in the gang's interstate narcotics operations.   Defendant relied on testimony from the preliminary hearing where another gang member had told police that defendant was not yet a member of the gang.   The gang was not trying to recruit him, but defendant wanted to get into the gang.

The court found probable cause for issuance of the warrant, and denied the motion to suppress.   The court relied on the traffic stop of Flores and Valdez, which yielded drugs and weapons;  defendant's involvement with Flores and Valdez relating to the Spanks matter as evidenced by the phone calls made from jail to defendant;  and defendant's monitoring of Valdez and Flores's custody.   The court found the affidavit consisted of Officer Karagiosian's observations, the letter from Flores to Goofy, Flores's admissions of gang membership, and Flores's conversations with defendant.  “What we have here [are] circumstances that an experienced-I underscore the word experienced-police officer who is [an] expert in both gang and narcotics investigations [provided to] the magistrate.”

B. Discussion.

Evidence obtained in violation of the Fourth Amendment is subject to the judicially developed exclusionary rule precluding its use in a criminal proceeding against the victim of the illegal search and seizure.   The primary purpose of the exclusionary rule is to deter future unlawful police conduct and effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.  (People v. Hull (1995) 34 Cal.App.4th 1448, 1453-1454.)

Probable cause sufficient for issuance of a warrant requires a showing that it is substantially probable that there is specific property lawfully subject to seizure presently located in the particular place for which the warrant is sought.  (People v. Frank (1985) 38 Cal.3d 711, 744.)   Probable cause means less than evidence which would justify condemnation;  instead, it describes circumstances which warrant suspicion.  (Illinois v. Gates (1983) 462 U.S. 213, 235 [103 S.Ct. 2317, 76 L.Ed.2d 527] (Gates ).)   As Gates observed, “probable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules.”  (Id. at p. 232.)   In that regard, probable cause, unlike a fact, may be shown by evidence that would not be competent at trial.   (United States v. Ventresca (1965) 380 U.S. 102 [85 S.Ct. 741, 13 L.Ed.2d 684].)   Accordingly, information and belief alone may support the issuance of search warrants.  (Gates, at pp.   233-234, 241-242;  People v. Carmarella (1991) 54 Cal.3d 592, 601.)   Further, police officers may rely on hearsay in obtaining a warrant to search for incriminating evidence.   (Humphrey v. Appellate Division (2002) 29 Cal.4th 569, 573.)

The magistrate's determination of probable cause is entitled to deferential review.  (People v. Carrington (2009) 47 Cal.4th 145, 161.)   Under this standard, we do not conduct a de novo review of the evidence but determine only whether “the affidavit fails as a matter of law to set forth sufficient competent evidence to support the magistrate's finding of probable cause.”   (People v. McDaniels (1994) 21 Cal.App.4th 1560, 1564.)   When reviewing the grant or denial of a motion to suppress, we uphold the trial court's express and implied findings of fact if supported by substantial evidence.  (People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1197-1198.)

In assessing whether a warrant establishes probable cause, we consider “whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.”  (People v. Kraft (2000) 23 Cal.4th 978, 1040.)  “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 [or her], including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”  (Gates, supra, 462 U.S. at p. 238.)   Further, although facts within the affidavit may be consistent with lawful activities, it is the totality of the circumstances that must be considered.  (People v. Stanley (1999) 72 Cal.App.4th 1547, 1555.)   The nature of the crimes alleged and the items sought can provide a basis for the magistrate to reasonably conclude that a suspect's residence is a logical place to look for specific incriminating items.  (People v. Gonzalez (1990) 51 Cal.3d 1179, 1206, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.)

Where narcotics sales are at issue but there is no direct evidence of illegal activity conducted in a residence, a logical inference or

Thus, in People v. Cleland, supra, 225 Cal.App.3d at pp.   392-393, the seizure of baggies of marijuana apparently packaged for sale from defendant's person, plus officer's opinion that additional contraband would likely be found at defendant's residence justified warrant for search of residence, and in People v. Aho (1985) 166 Cal.App.3d 984, 991-993, evidence that defendant was selling drugs, his prior drug arrests and convictions, and officer's opinion that “persons dealing in controlled substances and stolen property will frequently secrete contraband in closed or locked containers and other closed or locked hiding places within their residence” created probable cause for search of residence.

Here, Officer Karagiosian's experience and training in gang and narcotics trading provided the backdrop against which to assess his affidavit.   He knew that the Vineland Boys, of which defendant was a member, operated a multi-state drug trafficking operation.   Defendant's close association with Flores and Valdez and his communication with them concerning the proposed retaliation against Marco Garcia and his monitoring of the sheriff's website concerning their custody status supplied the link necessary for Officer Karagiosian to form the opinion that defendant was involved in their drug operation, and that evidence of trafficking in methamphetamine would be found at his house.   Further bolstering a probable cause finding is that Flores and Valdez were found with weapons, methamphetamine, and methamphetamine paraphernalia in the their car at the time they were stopped by Officers Nichols and Baumgarten;  this information, coupled with the letter from Flores to Goofy in which Flores told Goofy that he was “chillen” with defendant and Torres provided evidence that defendant was spending considerable time with known narcotics dealers and thus it was probable defendant would also have weapons, drug paraphernalia, and drugs in his residence.   Finally, the Vineland Boys gang had a history of violence, having killed two police officers;  the discussion of retaliation against Marco Garcia, and the unregistered weapons found in the vehicle with Flores and Valdez, defendant's associates, provided a basis for Officer Karagiosian to conclude that defendant possessed at his residence weapons to be used in any proposed retaliation.

Finally, evidence seized pursuant to a warrant unsupported by probable cause need not necessary be excluded if the officers obtained the evidence in reasonable reliance on a search warrant issued by a neutral and detached magistrate.  (United States v. Leon (1984) 468 U.S. 897, 922 [104 S.Ct. 3405, 82 L.Ed.2d 677].)   In considering that question, we apply the objective test of “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.”  (Id. at p. 922, fn. 23.)   Moreover, “the objective reasonableness of an officer's decision to apply for a warrant must be judged based on the affidavit and the evidence of probable cause contained therein and known to the officer, ‘and without consideration of the fact that the magistrate accepted the affidavit.’   [Citation.]”  (People v. Camarella, supra, 54 Cal.3d at p. 605.)

Here, there was nothing in the affidavit suggesting that there was false information or that the issuing magistrate was anything but detached and neutral.   On the other hand, the affidavit provided specific facts linking defendant to the Vineland Boys gang, its drug operation, drugs and drug paraphernalia, and the plan to retaliate against Marco Garcia.   Thus, even if the warrant was issued with insufficient probable cause, the officers' reliance on the magistrate's determination of probable cause was objectively reasonable.

DISPOSITION

The judgment of the superior court is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Defendant belonged to a clique of the Vineland Boys gang..  FN1. Defendant belonged to a clique of the Vineland Boys gang.

FN2. We granted defendant's request to augment the record to include the search warrant..  FN2. We granted defendant's request to augment the record to include the search warrant.

FN3. The letter stated, “How you been?   As for me just here chillen with Phaze & Klay․  [L]et me know what you need done out here was it Spanks?”.  FN3. The letter stated, “How you been?   As for me just here chillen with Phaze & Klay․  [L]et me know what you need done out here was it Spanks?”

FN4. The search warrant for Valdez's residence was attached to the search warrant for defendant's residence as an exhibit..  FN4. The search warrant for Valdez's residence was attached to the search warrant for defendant's residence as an exhibit.

ROTHSCHILD, Acting P. J. CHANEY, J.