PEOPLE v. CORONA (1980)

After the trial court denied and granted in part defendant Corona's motion to suppress certain evidence, both defendant and the People, claiming error, petitioned for relief through mandamus. We denied Corona's petition, but proceeded to hear the People's petition pursuant to directive from the Supreme Court. We initially decided that the People's petition should likewise be denied, but granted the People's petition for rehearing and, after additional briefing and oral argument focusing upon specific areas of our concern, have concluded that the People's petition for mandamus should be granted in part, for the reasons which follow.

Procedural Background. On January 18, 1973, defendant was found guilty and convicted of 25 counts of first degree murder. On May 8, 1978, Division Two of this court set the conviction aside because of inadequate legal representation and conflict of interest on the part of defendant's original trial counsel. (People v. Corona (1978) 80 Cal.App.3d 684, 145 Cal.Rptr. 894.) The factual background of the case is fully set forth in that opinion (id., at pp. 693-701, 145 Cal.Rptr. 894), and need not be repeated here. The court, in a unanimous opinion authored by Justice Kane, found that “trial counsel in gross neglect of his basic duty, failed to conduct the requisite factual and legal investigation in an effort to develop fundamental defenses available for his client and as a result of his neglect, crucial defenses were withdrawn from the case” (id., at p. 706, 145 Cal.Rptr. 894), thus warranting reversal on the basis of the then-prevailing standard of incompetency (People v. Ibarra (1963) 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487). In addition, and as independent grounds for reversal, the court determined that Corona's trial counsel, by obtaining and exploiting literary and dramatic rights to Corona's life story “created a situation which prevented him from devoting the requisite undivided loyalty and service to his client. From that moment on, trial counsel was devoted to two masters with conflicting interests-he was forced to choose between his own pocketbook and the best interests of his client, the accused.” (80 Cal.App.3d at p. 720, 145 Cal.Rptr. 894.) Without deciding whether such a conflict of interest was sufficient in itself to demonstrate denial of the right to effective representation as a matter of law, or whether a showing of actual prejudice was required, the court held that the case met both criteria, and that trial counsel's conduct “constituted not only an outrageous abrogation of the standards which the legal profession has set for itself and upon which clients have a right to rely, but also rendered the trial a farce and mockery calling for reversal of the conviction and requiring a new trial.” (Id., at p. 727, 145 Cal.Rptr. 894.)

The court concluded its opinion by considering several issues relating to the new trial which was to take place. Of these, only one is relevant here. In a proceeding under Penal Code section 1538.5 to suppress certain evidence, the trial court had refused to permit defendant's counsel to call witnesses for the purpose of challenging the accuracy of information contained in affidavits supporting various search warrants. Justice Kane's opinion found this to be error under Theodor v. Superior Court (1972) 8 Cal.3d 77, 100-101, 104 Cal.Rptr. 226, 501 P.2d 234, but due to the unavailability of a transcript of the suppression hearing it could not be determined whether the error was prejudicial. The opinion states: “If, on retrial, appellant offers evidence to challenge the factual allegations of the affidavits supporting the search warrants, the court should proceed in accordance with the precepts enunciated in Theodor and as expressed herein.” (80 Cal.App.3d at p. 729, 145 Cal.Rptr. 894.)

On March 28, 1979, Corona's present attorneys noticed a motion to suppress all evidence seized under six search warrants. Petitioner opposed the motion on the ground that the court had no jurisdiction to entertain a second Penal Code section 1538.5 motion, but only to hear a Theodor motion as mandated by Justice Kane's opinion. Corona's attorneys countered that certain significant arguments had not been made at the original 1538.5 motion, and that prior counsel's incompetency and conflict of interest had prevented full determination at that time.

Judge Patton, a distinguished and experienced jurist who tried the original case, presided at the new hearings which began April 25, 1979. At first, he expressed doubt about the propriety of hearing the issues sought to be presented by Corona's attorneys, but reserved judgment on that question and insisted on hearing the mandated Theodor aspects first. After doing so, however, he decided that the hearing would encompass all issues raised.

Almost 9 court days were required to hear the matter, in the course of which 25 witnesses were sworn and testified. At the conclusion of the hearing the court issued a 44-page written opinion suppressing part of the evidence seized under the first warrant on the ground that the affidavit did not establish probable cause to search a specific building, and all of the evidence seized under the second warrant on the ground that the warrant was overly broad. The People stipulated that no evidence seized under the third through sixth warrants would be used. Consequently the validity of those warrants was not considered, and is not an issue here.

1. The trial court had jurisdiction to hear Corona's 1538.5 motion on the validity of the search warrants.

Petitioner contends that in view of the earlier (1972) proceedings the trial court lacked jurisdiction to hear a full-blown 1538.5 motion on the validity of the warrants. Petitioner relies on People v. Brooks (1980) 26 Cal.3d 471, 162 Cal.Rptr. 177, 605 P.2d 1306, Madril v. Superior Court (1975) 15 Cal.3d 73, 123 Cal.Rptr. 465, 539 P.2d 33; People v. Williams (1979) 93 Cal.App.3d 40, 155 Cal.Rptr. 414; and People v. Superior Court (Green) (1970) 10 Cal.App.3d 477, 89 Cal.Rptr. 223.

In Brooks, the court held that a trial court has jurisdiction to hear a second 1538.5 motion on the grounds presented in the first motion but not reached by the trial court when it granted the motion on other grounds. (26 Cal.3d at p. 474, 162 Cal.Rptr. 177, 605 P.2d 1306.) It based its decision on defendant's lack of opportunity for a “full determination” of the merits of his motion as originally made and noticed. In Madril, the court held that section 1538.5 does not confer jurisdiction upon a trial court, having once granted a defendant's suppression motion, to reconsider it prior to trial. (15 Cal.3d at p. 75, 123 Cal.Rptr. 465, 539 P.2d 33.) Green was to the same effect, and its reasoning was approved in Madril. (Id., at p. 77, 123 Cal.Rptr. 465, 539 P.2d 33.) Brooks distinguished both Madril and Green as presenting situations “in which a party ... sought review or reconsideration of an adverse ruling rendered after a complete hearing on the search and seizure issues.” (26 Cal.3d at p. 478, 162 Cal.Rptr. 177, 605 P.2d 1306.) In both cases, the court noted, “the second hearings were properly characterized as relitigation of matters that the parties had opportunity to fully air in the first hearings.” (Ibid.)

None of the cases cited by either party involved a trial court's jurisdiction to entertain a second suppression hearing after a conviction is reversed on grounds of constitutional denial of effective counsel. (Cf. People v. Dorsey (1973) 34 Cal.App.3d 70, 73, 109 Cal.Rptr. 712 (overruled on other grounds, Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602, 119 Cal.Rptr. 302, 531 P.2d 1086).) It seems obvious, however, that if the ineffectiveness of counsel infected the first suppression hearing, the defendant cannot be said to have had opportunity for “full determination” within the meaning of Brooks.

As Justice Kane's opinion noted (People v. Corona, supra, 80 Cal.App.3d at p. 720, 145 Cal.Rptr. 894), the constitutional right to effective counsel “includes the requirement that the services of the attorney be devoted solely to the interest of his client undiminished by conflicting considerations. (Citations.)” And, as that opinion observed, “some cases take the view that a conflict of interest is so inherently conducive to divided loyalties as to amount to a denial of the right to effective representation as a matter of law.” (Ibid.) By that view the conflict of interest found to exist on the part of Corona's original counsel necessarily involved denial of the right to effective representation in all of the original proceedings, not just the trial itself, and by itself would warrant the determination that Corona should be entitled to assert anew his constitutional rights under section 1538.5.

Justice Kane's opinion also noted an alternative view, that the defendant “must affirmatively establish that he has suffered some actual prejudice” resulting from the conflict (ibid.), but refrained from deciding which view was correct. Rather, the opinion stated that the case met both criteria (ibid.), and went on to discuss specific examples of prejudice as demonstrated by the record. While trial counsel's performance at the suppression hearing was not among the examples given, that omission is perhaps explainable by the fact (as the court noted) that no transcript of the suppression hearing was available.

If there is a general requirement that prejudice be shown from conflict in interest, perhaps that requirement ought not to apply in a situation such as this where the defendant is hampered in presenting evidence as to what occurred in the original proceeding by the absence of any transcript thereof. Justice Kane in his opinion makes reference to unsuccessful efforts by the court to acquire “this important transcript,” and to the consequent impossibility of determining whether denial of a hearing on defendant's Theodor motion constituted prejudicial error. (People v. Corona, supra, 80 Cal.App.3d at pp. 728-729, 145 Cal.Rptr. 894.) We can only speculate as to the reasons for the absence of such a transcript,¹ but whatever the reason the result is defendant is deprived of the best evidence as to what actually occurred.

But assuming that a finding of prejudice is necessary, it was in fact made. Judge Patton expressly determined in the proceedings after remand that Corona's trial counsel “had not fully and adequately represented (Corona) in reference to the search warrants and that the entire matter should be reviewed.” Moreover, the finding was amply supported under all the circumstances. The nature of trial counsel's conflict of interest was such that his economic interests were likely to be served by proceeding to trial with all the lurid evidence that the prosecutor could produce, rather than attempt to exclude legally inadmissible evidence on the basis of “technical” assertions of constitutional right.² The hearing on the original suppression motion together with hearing on various discovery motions lasted only a total of 4 hours and 35 minutes, and the points and authorities filed by original counsel for Corona did not address themselves to the particular issues which were advanced at the second hearing and which formed the basis for the rulings complained of.³ Judge Patton, of course, was in a position to know what occurred at the first hearing, since he conducted it; and while it would have been preferable from the standpoint of appellate review for the record to reflect more precisely the basis for his determination that Corona's interests were not then fully and adequately represented, the constitutional rights at stake require that we give considerable weight to his view of the matter. We conclude that the trial court had jurisdiction to hear Corona's 1538.5 motion on the validity of the search warrants due to the effective denial of any meaningful opportunity for a full determination of the merits. We conclude also that Judge Patton did not abuse his discretion in deciding to hear the matter fully, a decision grounded-in part-upon considerations of fundamental fairness with which we agree.⁴

2. The first warrant.

On May 20, 1971, the body of Kenneth Whitacre was discovered buried on the Kagehiro Ranch, a ranch neighboring the J. L. Sullivan Ranch. The victim had been stabbed in the chest and had a severe hacking wound in the back of his head. Evidence suggested he had been killed recently and buried on May 19, 1971, some time between 10 a. m. and about 6 p. m.

On the morning of May 25, 1971, a body was found buried on the Sullivan Ranch, apparently the victim of similar violence. Between 4:30 p. m. and 10:45 p. m. on May 25, 1971, seven additional victims were unearthed from graves on the Sullivan Ranch. All the victims had similar stabbing and hacking wounds.

At 2:38 a. m. on May 26, 1971, a warrant issued authorizing the search of various buildings and vehicles for “Knives, axes, machetes, shovels or any other cutting or stabbing instruments or weapons”; bloodstained clothes, vehicles, or weapons of any sort; the personal effects of any of the victims; and “any other evidence including but not limited to payroll and employment records associating Juan V. Corona, or any other person” with the death of the victims.

Among the places authorized to be searched was a building described in the warrant, and in the affidavit for the warrant, as a “single family residence dwelling located fartherest (sic) to the north in the complex of buildings known as the J. L. Sullivan Ranch, loading station and labor camp otherwise known as 4817 Live Oak Highway, Sutter County, California together with the premises surrounding said residence and any and all out buildings and appurtenances thereof.” Although not so described in the affidavit or the warrant, the “single family residence dwelling” was in fact a mess hall for farm workers, and was also used by Corona as an office for occasional sleeping purposes. Search of that building yielded an awl or ice pick, a double-bladed axe, two hunting knives, a 9 mm. automatic pistol and ammunition, a pair of tin snips, business receipts, Sullivan Ranch payroll check stubs, and credit cards in Corona's name.

The trial court ordered this evidence suppressed on the ground that the affidavit for the warrant did not establish probable cause for the search of the mess hall.⁵ On review, we bring to bear the same standard which governed the trial court: the magistrate's order issuing the warrant may be set aside only if the affidavit, as a matter of law, does not establish probable cause. (People v. Superior Court (Bingham) (1979) 91 Cal.App.3d 463, 470, 154 Cal.Rptr. 157; Skelton v. Superior Court (1969) 1 Cal.3d 144, 150, 81 Cal.Rptr. 613, 460 P.2d 485.) In making that determination all of the facts and circumstances of the case must be considered. (People v. Superior Court (Keifer) (1970) 3 Cal.3d 807, 827, 91 Cal.Rptr. 729, 478 P.2d 449; People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 711, 100 Cal.Rptr. 319, 493 P.2d 1183.) “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.” (United States v. Ventresca (1965) 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684.)

The affidavit contained allegations of certain circumstantial evidence linking Corona to the crimes. Corona was a farm labor contractor, and contracted farm labor for both the Kagehiro and Sullivan ranches; he thus had access to the locations where the nine bodies were discovered; from the manner in which each of the victims had been killed and buried, it appeared they were probably killed by the same person; two receipts issued in Corona's name by a local company were found in the grave of one of the victims; and one of the victims was last seen alive entering a vehicle owned by Corona.⁶

The applicable constitutional test is “whether the affidavit states facts that make it 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. Cook (1978) 22 Cal.3d 67, 84, fn. 6, 148 Cal.Rptr. 605, 583 P.2d 130.) Thus, the issue is whether the affidavit, in addition to linking Corona to the crimes, contained sufficient facts linking Corona to the building to be searched, so as to make it probable that he had stored or secreted items named in the search warrant there. (See People v. Superior Court (Brown) (1975) 49 Cal.App.3d 160, 167, 122 Cal.Rptr. 459; Frazzini v. Superior Court (1970) 7 Cal.App.3d 1005, 1014, 87 Cal.Rptr. 32; see also LaFave, Search and Seizure (1978) s 3.2, pp. 486-490.) An otherwise insufficient affidavit cannot be rehabilitated by evidence concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate. (Whiteley v. Warden (1971) 401 U.S. 560, 565, fn. 8, 91 S.Ct. 1031, 1035, fn. 8, 28 L.Ed.2d 306.)

The affidavit recites that at approximately 9 p. m. on May 25, 1971 (the night the affidavit was prepared and the warrant issued) officers began surveillance of Corona's van. The van was observed to go into Marysville with two occupants, a Mexican male and a female. Then, after about 45 minutes, the vehicle with its two occupants travelled to the Sullivan Ranch and parked “near the house in the northeast portion of the camp” for approximately 15 minutes. Thereafter, the vehicle travelled to a residence at 768 Richland Road, the address of Corona's residence. At this point, according to the affidavit, a female was seen to leave the vehicle and enter the residence.⁷

The trial court reasoned that so far as appeared from the affidavits Corona's connection to the mess hall building consisted (1) of his status as a labor contractor at Sullivan Ranch, and (2) of the fact that his vehicle was seen parked near the building for 15 minutes on the night of the day that 8 bodies were discovered buried on the ranch property. Petitioner contends that the affidavit yields additional inferences which support the magistrate's finding of probable cause.

First, petitioner contends that it is a reasonable inference from the affidavit, not only that Corona is a labor contractor at the Sullivan Ranch, but that he operated a labor camp there, in the complex of buildings of which the mess hall was a part. The affidavit referred to the “complex of buildings known as the J. L. Sullivan Ranch, loading station and labor camp.” It also referred to “a bus apparently converted from a school bus currently parked on the above-described Sullivan property and bearing the painted name on its side of Juan Corona and designating him as a labor contractor.”⁸

The trial court, in evaluating the particularity of the first warrant's description of items to be seized, expressed the view that Corona was a labor contractor “whose business it was to provide other men to work for farmers, including transportation to and from the farm site,” and that Corona was the type of labor contractor who “feeds and houses the laborers (at a labor camp).”

In addition, petitioner contends that it is a fair inference that a labor contractor who operates a labor camp has access to the buildings in the labor camp complex, at least for the purpose of caring for the farm workers; and that he is likely to use buildings within the labor camp as a place to maintain records incident to his business.

Finally, petitioner contends that it is reasonable to infer from the facts regarding the surveillance of Corona's van on the night of May 25, 1971, and its presence outside the mess hall building for approximately 15 minutes at 10 p. m., that Corona in fact entered the mess hall that night, and that he did so either in furtherance of his business relationship as the farm labor contractor or to transfer, conceal, or dispose of criminal evidence in the van or at the crime scene. On either premise, petitioner contends, it was reasonable for the magistrate to conclude that there was a substantial probability that property described in the affidavit would be found there.

Petitioner calls our attention also to the extreme urgency of the situation: the affidavit was prepared, and the warrant was issued, during the course of an ongoing investigation into what appeared, at least, to be the work of a homicidal maniac on the loose; there was thus a heightened risk, petitioner contends, of loss of evidence or further homicide which demanded immediate action. (Cf. People v. Sirhan (1972) 7 Cal.3d 710, 739, 102 Cal.Rptr. 385, 497 P.2d 1121 (overruled in part, on other grounds, Hawkins v. Superior Court (1978) 22 Cal.3d 584, 593, fn. 7, 150 Cal.Rptr. 435, 586 P.2d 916.)⁹

In our view the case is marginal. The affidavit, hastily prepared, leaves more to inference than was desirable, or even necessary. We cannot say, however, that the inferences suggested by petitioner are so attenuated that they could not reasonably have been accepted by the issuing magistrate. The magistrate could have reasoned that Corona was in his car on the night of May 25, 1971; that he went to the Sullivan Ranch that night for some reason; and that the reason related to the ongoing discovery of victims on the Sullivan Ranch and the probable existence of incriminating evidence in the mess hall building. In deference to the principle that doubtful or marginal cases should be largely determined by the preference to be accorded warrants, we conclude that the affidavit for the first warrant supplied probable cause to search the mess hall, and that the trial court therefore erred in suppressing evidence from that building.

3. The second warrant.

The trial court found the second search warrant void, on its face, for overbreadth. The second search warrant authorized the seizure of the following property:

a. An adding machine, check stubs, payroll records, adding machine tapes, cancelled checks, bank statements, bank records;

b. Documents bearing the names of Paul Allen (and 33 additionally named persons);

c. Documents showing that Juan Corona hired or had personal or financial dealings with any of the named persons;

d. The body or bodies of any deceased human being or beings;

e. The personal effects of any of the aforementioned persons;

f. Bloodstained clothing, evidence of human blood, or body fragments, bone fragments and hair;

g. Any evidence of the violent death of a human being by cutting, hacking or stabbing.

The return to the second warrant lists the following items:

1. A four-drawer filing cabinet (from the Richland Road address);

2. An adding machine (from the Sullivan Ranch camp dining room (mess hall) office);

3. A receipt holder (from mess hall);

4. An ink pen with six different colored ink fillers (from mess hall);

5. A checkbook binder (from mess hall);

6. A paymaster check protector (from mess hall);

7. A well-worn whetstone (from mess hall);

8. A rent receipt (from P Street address).

The trial court found the warrant overbroad because “a consideration of the totality of the authorization under this warrant readily convinces the court that it is overbroad; it contains no limitation or description of the articles to be seized and is therefore unreasonable under the warrant clause of the United States and California Constitutions. Note, particularly the first category; it permits the seizure of voluminous financial records without regard to the person with whom the transactions had occurred or the date or dates of the transaction. There is no meaningful description or limitation.”¹⁰

Petitioner contends that the warrant was not overbroad, that the requirement of particularity should be relaxed when exigent circumstances are present, and that any invalid portions of the warrant should be excised so as to preserve the permissible seizures.

Both the Fourth Amendment of the United States Constitution and article I, section 13 of our state Constitution require that a warrant must particularly describe the place to be searched and the things to be seized. (Burrows v. Superior Court (1974) 13 Cal.3d 238, 249, 118 Cal.Rptr. 166, 529 P.2d 590.) The requirement of particularity is designed to prevent general exploratory searches which unreasonably interfere with a person's right to privacy. (Marron v. United States (1927) 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231.) The Penal Code demands reasonable particularity (Pen.Code, s 1529), and this requirement is held to be satisfied if the warrant imposes a meaningful restriction upon the objects to be seized. (People v. Tenney (1972) 25 Cal.App.3d 16, 22, 101 Cal.Rptr. 419 (overruled on other grounds, People v. Leib (1976) 16 Cal.3d 869, 875, 129 Cal.Rptr. 433, 548 P.2d 1105); People v. Alvarado (1967) 255 Cal.App.2d 285, 291, 62 Cal.Rptr. 891; People v. Barthel (1965) 231 Cal.App.2d 827, 832, 42 Cal.Rptr. 290.)

Whether the description in the warrant is sufficiently definite is a question of law on which the appellate court makes an independent judgment. (People v. Murray (1978) 77 Cal.App.3d 305, 308, 143 Cal.Rptr. 502; Thompson v. Superior Court (1977) 70 Cal.App.3d 101, 108, 138 Cal.Rptr. 603.) A ruling on the warrant's sufficiency must be limited to the four corners of the warrant. (People v. Superior Court (Williams) (1978) 77 Cal.App.3d 69, 75, 143 Cal.Rptr. 382 (overruled on other grounds, People v. Superior Court (Meyers) (1979) 25 Cal.3d 67, 76-77, fn. 9, 157 Cal.Rptr. 716, 598 P.2d 877); Thompson v. Superior Court, supra, 70 Cal.App.3d at p. 112, 138 Cal.Rptr. 603.)

As commentators have recognized, warrants which authorize seizure of instrumentalities and evidence of a crime present the most difficult problems concerning precision in the descriptions. (See LaFave, Search and Seizure, supra, s 4.6(d), pp. 104-109.) To some extent, the nature and complexity of the crime can be considered in deciding whether the warrant was sufficiently precise in its identification of the items to be seized. (Andresen v. Maryland (1976) 427 U.S. 463, 480, fn. 10, 96 S.Ct. 2737, 2748, fn. 10, 49 L.Ed.2d 627; People v. Barthel, supra, 231 Cal.App.2d at p. 832, 42 Cal.Rptr. 290; People v. Remiro (1979) 89 Cal.App.3d 809, 831-832, 153 Cal.Rptr. 89.)¹¹

Under any standard, it is clear that the first category of items listed above was grossly overbroad, and placed no limitation whatsoever on the seizure in terms of relationship to the crimes. Petitioner argues that the remaining categories are sufficiently specific, and that the doctrine of severance (Aday v. Superior Court, supra, 55 Cal.2d 789, 797, 13 Cal.Rptr. 415, 362 P.2d 47; People v. Howard, supra, 55 Cal.App.3d 373, 379, 127 Cal.Rptr. 557) should apply. Assuming petitioner's premise arguendo, however, it does not appear that any of the items seized fall within any of the remaining categories.¹²

Petitioner contends that two of the items seized, the rent receipt and the six-color pen, were properly seized independently of the warrant. As to the rent receipt, petitioner argues that it was seized pursuant to consent. The trial court found otherwise, however, and its finding is amply supported by the evidence. (People v. James (1977) 19 Cal.3d 99, 107, 137 Cal.Rptr. 447, 561 P.2d 1135.) The seizing officer testified, and the return to the warrant showed, that it was seized pursuant to the warrant, and the warrant provides no basis for that seizure.

The six-color pen was seized by an officer from the middle drawer of a desk in the mess hall. The affidavit for the second warrant incorporated by reference the affidavit for the first warrant which, we have concluded, established probable cause to search that location. The officer testified that he had seized a ledger two days earlier, pursuant to the first warrant; that the ledger contained lists of names, including those of some of the identified victims; and that those names had been written in four or five colors of ink. Petitioner contends, and we agree, that the seizure of the pen, though not identified in the warrant, was justified as a “plain view” seizure: the officer was in a place where he had a right to be, and the officer was aware of specific and articulable facts providing a nexus between the article to be seized and criminal behavior. (People v. Hill (1974) 12 Cal.3d 731, 762, 117 Cal.Rptr. 393, 528 P.2d 1 (overruled on other grounds, People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786, 558 P.2d 872 fn. 5); People v. Superior Court (Meyers) (1979) 25 Cal.3d 67, 73-75, 157 Cal.Rptr. 716, 598 P.2d 877.) Thus, we conclude that the trial court erred in suppressing the six-color pen.

A peremptory writ of mandate will issue directing the respondent court to vacate its order of May 30, 1979, insofar as it suppresses evidence obtained from the mess hall pursuant to the first warrant and the six-color pen.

FOOTNOTES

1.  Defendant suggests trial counsel may have sought to conceal his lack of diligence in the matter.

2.  Corona's new counsel made an offer of proof that prior counsel's investigator would testify that prior counsel noted the alleged deficiencies in the warrants but said he would eschew challenging them to avoid the appearance of trying to win on a technicality. Evidence to that effect however, was not actually introduced. Judge Patton remarked at the time that such evidence would “weigh heavily” when he decided how to proceed, and the People urge us to conclude that he relied improperly upon evidence that was not made a part of the record, but we are not prepared to indulge in that presumption.

3.  Nearly a year after this petition was filed, petitioner requested that we take judicial notice of certain records in Corona's prior appeal and habeas corpus proceeding. (See Evid.Code, ss 452, 459; People v. Preslie (1977) 70 Cal.App.3d 486, 493, 138 Cal.Rptr. 828.) We have reviewed those records and find them immaterial to the issues before us.

4.  An alternative basis for jurisdiction, not argued by the parties, is the explicit remand by Division Two of this court for hearing and determination of the Theodor issues. Theodor calls for excision from a warrant affidavit of demonstrably false statements which the affiant had no reasonable basis for believing to be true, and a determination of probable cause based on the remaining, truthful portion. (Theodor v. Superior Court, supra, 8 Cal.3d at pp. 100-101, 104 Cal.Rptr. 226, 501 P.2d 234.) Thus, the trial court necessarily had jurisdiction to redetermine probable cause.

5.  The trial court denied Corona's suppression motion relating to items seized pursuant to the first warrant from locations other than the mess hall, with one exception. It ordered suppression of a number of rounds of 9 mm. ammunition found in a zippered bag underneath the floor mat in Corona's van, as having no “nexus” with the criminal activity described in the affidavits. Petitioner's memorandum in support of its petition for writ of mandate makes no reference to this item focusing exclusively upon the items seized from the mess hall pursuant to the first warrant and the items seized pursuant to the second warrant. In its reply to the real party's answer to the petition, petitioner argues for the first time in this court, without record citation, that “The bullets were possibly related to defendant's criminal behavior because it was known that the killer's modus operandi required use of a number of different weapons,” and that the victims' state of decomposition and the inability to perform gross autopsy of each victim due to their numbers prior to execution of the warrant permitted the inference that the bullets were related to “ ‘possible criminal behavior.’ ” We see no reason to disturb the trial court's finding on this item.

6.  Petitioner claims that the affidavit establishes certain additional facts linking Corona to the crimes, for example: that tire marks found near one of the gravesites matched the tires on Corona's van; that Corona was observed driving the van when one of the victims was last seen in it; and that an employee of the local company personally gave the receipts to Corona. The trial court, finding the affidavit insufficient to establish these propositions, nevertheless found sufficient basis in the affidavit for believing Corona to be the culprit. We agree with these determinations.

7.  This information was related by the affiant second-hand. The surveilling officer testified at the suppression hearing that he actually saw both occupants of the van exit and go into the Richland Road residence. Petitioner contends that notwithstanding this factual discrepancy the magistrate was entitled to rely upon an inference from the face of the affidavit that the man in the car (assertedly Corona) left it at the Sullivan Ranch. (People v. Schmidt (1978) 83 Cal.App.3d 968, 975, 148 Cal.Rptr. 426.) In the context in which the issue is presented, we agree.

8.  The trial court determined it could not consider this description in evaluating the affidavit because it appeared only in the recital of reasons for the request for the warrant and was not supported by independent factual averments. Petitioner contends this was error, and relies upon People v. Superior Court (Brown), supra, 49 Cal.App.3d 160, 166, 122 Cal.Rptr. 459. In Brown the affidavit recited that a particular house was occupied by the defendant, but contained no factual allegations in support of that recitation. The trial court in Brown characterized the statement as “ ‘a recital of a reason for the application’ ” and not “ ‘a statement under oath as to the fact ... that defendant ... in some manner occupied or had control over the subject premises or placed the items therein.’ ” (Ibid.) The appellate court disagreed, saying, “Viewed in a common sense rather than a hypertechnical way, the allegation of residence is a direct averment under oath of the fact asserted and therefore was properly considered by the magistrate.” (Id., at pp. 166-167, 122 Cal.Rptr. 459.)

9.  Petitioner in its brief states: “given the exigency of the police officers on the night of May 25, 1971, an argument could be made that even a warrantless search of the Sullivan Ranch property would have been justified.” The argument was not made in the trial court, however, and for that reason we do not consider it.

10.  The court also based its suppression of items seized pursuant to the second warrant on a lack of probable cause to search a residence owned by defendant and occupied by his brother-in-law and wife, and a lack of probable cause to search Sullivan Ranch buildings, a finding that the Sullivan Ranch search was a fruit of the impermissible search pursuant to the first warrant, and overbreadth.

11.  The appellate courts of this state have found the following descriptions of property to be constitutionally defective: “ ‘all books, records, accounts and bank statements and cancelled checks of the receipt and disbursement of money’ ” without regard to the participants in or dates of the transactions (Burrows v. Superior Court, supra, 13 Cal.3d at pp. 241, 249-250, 118 Cal.Rptr. 166, 529 P.2d 590); a listing of numerous documents by general categories, such as “ ‘(c)hecks, check stubs ... and bank statements' ” followed by “ ‘any and all other records and paraphernalia’ ” connected with the suspect's business (Aday v. Superior Court (1961) 55 Cal.2d 789, 793, 795-796, 13 Cal.Rptr. 415, 362 P.2d 47); “ ‘certain personal property used as a means of committing a public offense, to-wit, attempted grand larceny’ ” (People v. Mayen (1922) 188 Cal. 237, 242, 205 P. 435 (overruled on other grounds, People v. Cahan (1955) 44 Cal.2d 434, 445, 282 P.2d 905)); “ ‘television sets, power tools, appliances, hand tools, home furniture, clothing, power drill press' ” (People v. Murray, supra, 77 Cal.App.3d at pp. 308-309, 143 Cal.Rptr. 502); “ ‘bills and receipts' ” and other named items (People v. Superior Court (Williams), supra, 77 Cal.App.3d at pp. 78-79, 143 Cal.Rptr. 382); “ ‘stolen property’ ” (Thompson v. Superior Court, supra, 70 Cal.App.3d at p. 108, 138 Cal.Rptr. 603 (also holding that affidavit may not be used to make warrant's description more certain)); “ ‘Evidences of indebtedness' ” of the suspect, his telephone bills, and “ ‘any papers showing names and addresses' ” of his associates (Griffin v. Superior Court (1972) 26 Cal.App.3d 672, 692-693, 103 Cal.Rptr. 379); stolen merchandise (Lockridge v. Superior Court (1969) 275 Cal.App.2d 612, 625, 80 Cal.Rptr. 223); and “ ‘other evidence’ ” (Stern v. Superior Court (1946) 76 Cal.App.2d 772, 784, 174 P.2d 34).On the other hand: “ ‘together with other fruits, instrumentalities and evidence of crime at this (time) unknown,’ ” when construed as applicable only to one crime (Andresen v. Maryland, supra, 427 U.S. at p. 481, fn. 10, 96 S.Ct. at p. 2749, fn. 10); “ ‘revolutionary material’ ” (People v. Remiro, supra, 89 Cal.App.3d at p. 831, 153 Cal.Rptr. 89 (where exigency present and alternate bases for seizure also held valid)); personal property “ ‘tending to establish the identification of person or persons having dominion or control’ ” (People v. Howard (1976) 55 Cal.App.3d 373, 376, 127 Cal.Rptr. 557); “ ‘bookmaking ... paraphernalia’ ” (People v. Barthel, supra, 231 Cal.App.2d at p. 832, 42 Cal.Rptr. 290); and “ ‘illegal deer meat and/or elk meat’ ” (Dunn v. Municipal Court (1963) 220 Cal.App.2d 858, 868, 34 Cal.Rptr. 251), have all been held to be sufficient.

12.  In its petition for rehearing, petitioner contends that the four-drawer filing cabinet and its contents were properly seized within those categories of “documents” limited in the warrant by reference to name or association with Corona. This contention was not asserted previously in this proceeding, and is therefore not appropriate for consideration here, particularly since it is not accompanied by any supportive citation to the record.

GRODIN, Associate Justice.

RACANELLI, P. J., and NEWSOM, J., concur.