PEOPLE v. BURSON

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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. Rex Emil BURSON, Jr., Defendant and Respondent.

Cr. 43946.

Decided: June 15, 1983

Robert H. Philibosian, Dist. Atty. of Los Angeles County, Harry B. Sondheim, Head, Appellate Div., and Maurice H. Oppenheim, Deputy Dist. Attys., for plaintiff and appellant. Eugene E. Siegel, Los Angeles, under appointment by the Court of Appeal, for defendant and respondent.

The People appeal an order setting aside an information alleging conspiracy to receive stolen property, two counts of receiving stolen property and one count of cultivation of marijuana.  (Pen.Code, §§ 182, 496, 995;  Health & Saf.Code, § 11358.) 1  It is contended:  “The magistrate properly found that the failure to sign one of three identical affidavits was inadvertent and did not destroy the validity of the search warrant.”

On June 7, 1982, Los Angeles Sheriff's Deputy K.R. Thomasson sought three search warrants, numbered consecutively 98, 99 and 100, to search three separate locations.   The affidavit in support of each warrant, 19 pages in length, was identical in every respect, as the warrants were sought as part of an ongoing investigation.   Each of the three affidavits represented a true copy of a single, original affidavit.   The three documents were submitted simultaneously to the magistrate who reviewed each document, signing each of the warrants and affidavits.   Deputy Thomasson had affixed his signature to the affidavit in numbers 98 and 100, but neglected to do so with number 99.2

In rejecting respondent's challenge to search warrant number 99 based upon the missing signature, the magistrate observed:  “[A]s far as the lack of signature on the affidavit, the Court notes that the affidavit was the same affidavit for four search warrants, and I believe some of those search warrants were issued on the same date and very close in point of time where those affidavits have been signed.   The Court has independent recollection of the procedure used when the affiant comes to the Court for issuance of search warrants, and in the case of multiple search warrants, which we're talking about here, we're talking about a mechanical process of signing.   And as the Court reviews the affidavits for the search warrant, the Court signs them after swearing the affiant and then proceeds with the mechanical aspect of signing the search warrants.   And the Court would rule as far as the lack of signature on the A–2 in Search Warrant 99 that in the Court's mind does not in any way detract from the legal sufficiency based on the statements made by the Court.”

When again requested to address Deputy Thomasson's oversight, the magistrate clarified its ruling as follows:  “The Court's ruling will remain the same.   Again the Court makes reference to the facts that there were three warrants presented with the same affidavit.   The Court reviews those three warrants and sees that it was on the same date, the same time, that the three warrants and affidavits bear the Judge's signature, and two of those bear the affiant's signature.   And the Court feels it to be a situation where it was an act not being done by the affiant, the Court relying on the fact that all three of those warrants were presented simultaneously to the Magistrate for consideration, the affidavit being the same as to those warrants, the 19-page affidavit that we have under consideration;  that mechanical fixing of the signature of the affiant to one of those three similar affidavits in this Court's mind is not defective because the Court feels that all three warrants being presented at the same time with the same affidavit as to all three warrants, two of those being signed by Deputy Thomasson.   And the Court's independent recollection of the swearing procedure and the signing procedure is just an inadvertence on the part of the affiant that he didn't fix his signatures to that one warrant.   So your position is noted for the record.” 3

The superior court set aside the information solely because the signature of the affiant was missing from one of the three copies of a single affidavit, after the parties stipulated that all relevant evidence concerning respondent had been obtained pursuant to execution of the warrant.

Appellant's contention is well taken.   The inadvertent failure to affix the affiant's signature to one of three identical affidavits submitted simultaneously to the same magistrate when the declarant was present and orally attested to their veracity under oath does not invalidate an otherwise adequate search warrant.  (Cf. Nunes v. Superior Court (1980) 100 Cal.App.3d 915, 921–926, 161 Cal.Rptr. 351;  Sternberg v. Superior Court (1974) 41 Cal.App.3d 281, 291–292, 115 Cal.Rptr. 893.)   The record herein under review is no different than had the deputy executed a single signed affidavit and submitted a true copy of that document with each of the three search warrants.   It cannot be seriously asserted that any of such search warrants, orally authenticated under oath as here, would be insufficient.  (Cf. People v. Sanchez (1982) 131 Cal.App.3d 323, 330–331, 182 Cal.Rptr. 430.)   Simply stated, an omission to sign one of such three identical affidavits when the named affiant was orally sworn by the magistrate as to the truth of each before the issuance of any search warrants affords no basis upon which to invalidate the search warrant issued upon the unsigned affidavit.

The order setting aside the information is reversed.

FOOTNOTES

1.   Five additional defendants were also charged but are not parties to the instant appeal.

2.   The magistrate found that, at the time the written affidavits were submitted, Deputy Thomasson was placed under oath and verified the truth of each of the affidavits, including number 99.Each of these warrants, as well as the affidavits in support thereof, has been made a part of the record on appeal and has been reviewed by this court.

3.   Having so ruled, the magistrate declined the offered testimony of Deputy Thomasson to explain his clerical oversight, or to correct the oversight by affixing his signature thereto.   It is unnecessary to address the propriety of these rulings.

ROTH, Presiding Justice.

BEACH and GATES, JJ., concur.