P. v. Pulliam CA2/5 ( 2013 )

Filed 6/24/13 P. v. Pulliam CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B244795
Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. KA097244)
v.
DOUGLAS WADE PULLIAM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, George
Genesta, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Supervising
Deputy Attorney General, and Idan Ivri, Deputy Attorney General, for Plaintiff and
Respondent.
_________________________________
Defendant and appellant Douglas Wade Pulliam was charged in counts 1 and 2
with possession of an assault weapon. (Pen. Code, § 12280, subd. (b).)1 Defendant‟s
motion to traverse the search warrant that led to the discovery of the weapons was
denied.2 Defendant pled no contest to count 1, count 2 was dismissed, and defendant was
placed on formal probation for a period of three years. We affirm.
FACTS3
On November 3, 2011, Pomona Police Department Officer Karen Callaghan
interviewed Misty Pulliam4 concerning a threatening phone call received that day. Misty
provided Officer Callaghan with a recording of the call, in which a male caller said,
“Soon soon soon you‟re dead. Soon you‟re dead.” The caller did not identify himself.
Misty identified the caller to Officer Callaghan as defendant, who was her estranged
husband. Officer Callaghan did not independently verify Misty‟s claim. Misty stated
that she saw the caller‟s phone number on her caller ID. She told Officer Callaghan the
call was made from a phone with a 760 area code, and that defendant‟s son possessed a
phone with the same area code. Officer Callaghan did not request the full phone number
of the threatening caller or defendant‟s son‟s phone number.
Misty explained that she and defendant were involved in a contentious divorce and
custody dispute, and that defendant had recently been informed he would be dropped
from her insurance coverage. Approximately one year before the call, when Misty was
1 Unless otherwise indicated, all statutory references are to the Penal Code.
2 Defendant also moved to quash the warrant but does not challenge the denial of
that motion on appeal.
3 All facts are taken from the preliminary hearing, which also functioned as an
evidentiary hearing for the motion to traverse the search warrant.
4 Because defendant and Misty share the same last name, we refer to her as Misty
throughout this opinion.
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still living with defendant, she had discovered photographs on the family computer of
firearms arrayed in the kitchen of their home. Misty gave Officer Callaghan 14 pages of
photographs of guns printed from the computer. She stated that defendant had gone
hunting with his brother in Arizona but did not say that defendant was transporting guns
across state lines or that she knew him to be an arms trafficker. Misty recounted that
when she lived with defendant, she personally saw guns in the bedroom on one occasion.
She did not say how many guns she saw or identify the guns as those depicted in the
photographs. Officer Callaghan confirmed that defendant lived at the address in question
and determined that there were prior domestic violence calls to police originating from
defendant‟s home.
Later that day, Officer Callaghan spoke to Pomona Police Department Corporal
James Suess regarding the threat against Misty so that he could prepare a search warrant
affidavit. Officer Callaghan repeated the information Misty had provided as detailed
above. Corporal Suess‟s memory of the details varied from Officer Callaghan‟s account
in that he recalled Officer Callaghan stating that defendant, rather than defendant‟s son,
had a phone number with the 760 area code. Additionally, when Officer Callaghan
showed Corporal Suess the gun photographs provided by Misty and told him that
defendant had taken the guns to Arizona to go hunting, Corporal Suess characterized this
activity in the affidavit as weapons “trafficking,” although Misty had not made that
characterization. Officer Callaghan stated that defendant had between 17 and 22 guns in
his home based on the information Misty gave her, although Misty had not been present
in the house since December of 2010, approximately 11 months before the affidavit was
prepared.
Corporal Suess conferred with Sergeants Lena Becker and Mike Niederbaumer
about the case. Sergeant Niederbaumer confirmed that there were no firearms legally
registered to defendant. Corporal Suess prepared a search warrant for defendant‟s home,
which was signed by Judge Lopez-Giss on November 3, 2011.
That same day, Corporal Suess executed the search warrant at defendant‟s home,
where he discovered assault weapons inside the house and garage, including a TEC-9 and
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an Uzi. Defendant was present for the search. The guns were transported to the Pomona
Police Department, where they were identified as assault weapons within the meaning of
section 12280, subdivision (b).
DISCUSSION
Defendant contends the affidavit in support of the search warrant contained factual
misrepresentations that vitiated probable cause, and that the search therefore violated his
Fourth Amendment right against unreasonable search and seizure. Because no exception
to the warrant requirement applies, defendant argues that evidence of the guns should
have therefore been suppressed.
The Fourth Amendment protects the right of persons to be free from unreasonable
searches and seizures. (People v. Allen (2000) 78 Cal.App.4th 445, 448-449.) With
some exceptions, “[t]his right is preserved by a requirement that searches be conducted
pursuant to a warrant.” (Id. at p. 449.) A search warrant must be based on probable
cause and “supported by affidavit, naming or describing the person to be searched or
searched for, and particularly describing the property, thing, or things and the place to be
searched.” (§ 1525.)
A motion to traverse a search warrant attacks the truth of the factual allegations
contained in the supporting affidavit. (People v. Hobbs (1994) 7 Cal.4th 948, 957.) To
prevail on a motion to traverse, the defendant must first make a substantial showing that
“„(1) the affidavit contains statements that are deliberately false or were made in reckless
disregard of the truth and (2) the affidavit‟s remaining contents, after the false statements
are excised, are insufficient to justify a finding of probable cause . . . .‟ [Citations.]”
(People v. Thuss (2003) 107 Cal.App.4th 221, 230 (Thuss).) If the defendant makes a
successful preliminary showing, the trial court must conduct an evidentiary hearing
pursuant to Franks v. Delaware (1978) 438 U.S. 154, in which the defendant is required
to prove the same two elements by a preponderance of the evidence. (Thuss, supra, at
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p. 230.) If the defendant meets the preponderance of the evidence standard, the warrant
must be voided and any evidence seized pursuant to it must be suppressed. (Ibid.)
“„The question facing a reviewing court asked to determine whether probable
cause supported the issuance of the warrant is whether the magistrate had a substantial
basis for concluding a fair probability existed that a search would uncover wrongdoing.
[Citations.] “The task of the issuing magistrate is simply to make a practical,
commonsense decision whether, given all the circumstances set forth in the affidavit
before him, 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.” [Citation.]‟ [Citations.] „[T]he warrant can be upset only
if the affidavit fails as a matter of law [under the applicable standard announced in
Illinois v. Gates [(1983)] 462 U.S. [213,] 238] to set forth sufficient competent evidence
supportive of the magistrate‟s finding of probable cause, since it is the function of the
trier of fact, not the reviewing court, to appraise and weigh evidence when presented by
affidavit as well as when presented by oral testimony. [Citations.]‟ [Citation.] This
standard of review is deferential to the magistrate‟s determination. [Citation.]” (Thuss,
supra, at p. 235.) The same standard of review applies when reviewing the trial court‟s
ruling on the motion to suppress on appeal. (People v. Campa (1984) 36 Cal.3d 870,
879, overruled on another point by Illinois v. Gates, supra, 462 U.S. at p. 238.)
Defendant specifically objects to the gun trafficking characterization, the
statement that Misty saw the guns pictured in the photographs, and the statement that
defendant had a phone with a 760 area code. Defendant concedes the trial court properly
followed the procedure for the hearing set forth in Franks v. Delaware, supra, 438 U.S.
154 but argues that it should have found the supporting affidavit insufficient after the
misstatements were removed. We hold that, even excising these misstatements from the
supporting affidavit, the remaining statements establish probable cause and the motion to
traverse was properly denied.
Corporal Suess‟s characterization of defendant‟s activity as weapons trafficking,
while not supported by Misty‟s statements, does not negate the existence of guns in
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defendant‟s home. Misty personally observed guns in defendant‟s home and provided
numerous printouts of photographs of guns from the family computer, which she
identified as having been taken in defendant‟s kitchen.
Whether or not Misty actually saw the specific guns depicted in the photos, she
was able to verify the approximate date the photos were taken and to place them within
defendant‟s home. Defendant‟s argument that the information was stale and unworthy of
weight in the trial court‟s consideration fails, because the staleness of the information was
rejected as a basis for suppressing evidence in the motion to quash, which defendant does
not challenge here. Moreover, although in some circumstances information that is remote
in time may not be sufficient to establish probable cause, “if there are special
circumstances that would justify a person of ordinary prudence to conclude that the
alleged illegal activity had persisted from the time of the stale information to the present,
then the passage of time has not deprived the old information of all value.” (People v.
Mikesell (1996) 46 Cal.App.4th 1711, 1718.) As the Attorney General points out,
defendant‟s collection of numerous illegal assault weapons is activity that is likely to be
ongoing, and even if defendant determined to rid himself of the weapons, doing so would
be difficult and time-consuming. In such a case, information that is only approximately a
year old is worthy of consideration.
Finally, excising the misstatement that defendant had a phone with a 760 area
code, there was still sufficient evidence that defendant made the telephone call, because
Misty identified the caller‟s voice as defendant‟s. As defendant‟s estranged wife, Misty
had the level of personal knowledge to correctly identify defendant‟s voice in a phone
call. The combination of evidence that defendant placed a call to Misty threatening to
kill her and evidence that he had numerous weapons in his house approximately one year
before the threatening call was made provide a “„substantial basis for concluding a fair
probability existed that a search would uncover wrongdoing . . .‟” sufficient to support
issuance of the warrant. (Thuss, supra, 107 Cal.App.4th at p. 235.)
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DISPOSITION
The judgment is affirmed.
KRIEGLER, J.
We concur:
MOSK, Acting P. J.
O‟NEILL, J.*
* Judge of the Ventura County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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