P. v. Pickens CA6

Filed 5/28/13 P. v. Pickens CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039063
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. F21149)
v.
DAVE ALLEN PICKENS,
Defendant and Appellant.
I. INTRODUCTION
On March 23, 2011, the Santa Cruz County Sheriff’s Narcotic Enforcement Team
executed a search warrant for defendant Dave Allen Pickens, his residence, and his
vehicle. The search yielded a cell phone in defendant’s pants pocket, three half-height
sandwich bags in his shirt pocket, a functioning digital scale in a shed, 0.6 grams of
methamphetamine and a methamphetamine pipe in a case in the headboard of a bed, and
29.2 grams of methamphetamine concealed in another half-height sandwich bag in
defendant’s underwear. Defendant exhibited symptoms of methamphetamine use.
During the course of the search, defendant waived his rights and, as more evidence was
discovered, eventually admitted that he had returned to selling and using
methamphetamine because so many people were asking him for it.
An information filed on August 31, 2011, charged defendant with the felonies of
transporting (count 1; Health & Saf. Code, § 11379, subd. (a)) and possessing
methamphetamine for sale (count 2; id. § 11378) and the misdemeanor of being under its
influence (count 3; id. § 11550, subd. (a)) after having served two prison terms for felony
convictions in 1998 (Veh. Code, § 23152, subd. (b)) and 2005 (Pen. Code, § 273.5). (Id.
§ 667.5, subd. (b).) On September 11, 2012, pursuant to the trial court’s indication of
granting probation, after waiving his trial rights defendant was convicted by no contest
pleas and admissions of all charges contained in the information. The court granted the
prosecutor’s motion to dismiss a misdemeanor charge in a separate proceeding.
On October 23, 2012, the trial court followed the recommendation in the probation
report by suspending imposition of sentence for three years and placing defendant on
formal probation under 17 conditions, including serving 365 days in county jail and being
subject to testing, seizure, and search for intoxicants and evidence of drug use and sales
at any time. The court encouraged the Sheriff’s Department to allow defendant to
participate in “whatever alternatives to incarceration program they have based on [his]
health situation.”
On defendant’s behalf, trial counsel filed a timely notice of appeal without
obtaining a certificate of probable cause for an appeal. (Pen. Code, § 1237.5.) The
notice indicated that the appeal would be based on the trial court’s denial of a suppression
motion. (Id. § 1538.5, subd. (m); Cal Rules of Court, rule 304(b)(4)(A).)
On March 5, 2013, this court advised defendant by letter that appointed counsel
has filed a brief that raised no specific issue, requiring this court to examine the entire
record to determine whether there is an arguable issue. In response to this court’s
invitation, defendant has timely filed a two-page handwritten supplemental brief.
II. STANDARD OF REVIEW
This kind of appeal obliges us to “review the entire record” to determine whether
appointed counsel has correctly determined that there are no arguable issues. (People v.
Wende (1979) 25 Cal.3d 436, 441.) In performing our review, we are required to
“provide a brief description of the underlying facts, the procedural history, the crimes of
which the defendant was convicted, and the punishment imposed” (People v. Kelly
(2006) 40 Cal.4th 106, 124) as we have done above, and further, to describe any
“contentions personally raised by the defendant and the reasons those contentions fail.”
(Ibid.) After conducting this review, we will affirm the judgment for the reasons stated
below.
III. REVIEW OF RECORD AND DEFENDANT’S CLAIMS
A. LIMITATIONS ON REVIEW AFTER NO CONTEST PLEA
Defendant’s letter lists what he calls seven “issues.” One is simply
“Transportation of Methamphetamine Charge.” We do not understand what legal issue
he intends. As this court explained in People v. Voit (2011) 200 Cal.App.4th 1353, pleas
of guilty and no contest limit what issues may be raised on appeal. The plea waives any
claims of innocence and lack of evidence to convict. (Id. at p. 1364.) “ ‘Issues
cognizable on an appeal following a guilty plea are limited to issues based on “reasonable
constitutional, jurisdictional, or other grounds going to the legality of the proceedings”
resulting in the plea. ([Pen. Code,] § 1237.5; [citation].)’ ” (Ibid., quoting People v.
DeVaughn (1977) 18 Cal.3d 889, 895.)
The failure to obtain a certificate of probable cause from the trial court further
limits the issues available on appeal. California Rules of Court, rule 8.304(b)(4) has
codified precedent authorizing appeals after pleas of guilty and no contest without a
certificate in only two situations: when the appeal is based on either “(A) The denial of a
motion to suppress evidence under Penal Code section 1538.5; or [¶] (B) Grounds that
arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court,
rule 8.304(b)(4); People v. Lloyd (1998) 17 Cal.4th 658, 663-664.)
B. DENIAL OF DEFENDANT’S SUPPRESSION MOTION
Four of the issues identified by defendant pertain to his motion to suppress
evidence, which was filed on December 7, 2011, and denied after a hearing on December
21, 2011.
1. THE ACCURACY OF THE ADDRESS IN THE SEARCH WARRANT
Defendant’s person and premises were searched pursuant to a warrant which
authorized the search, among other things, of “THE PERSON known as DAVID
PICKENS,” with a description of him, and “THE PREMISES at 102 Lake Avenue, Santa
Cruz, County of Santa Cruz, California, which is further described as a white single story
residential structure. The black number ‘102’ is located on the front right side of the
residence, facing Lake Avenue. A small brown wooden fence borders Lake Avenue.”
Defendant asserts that “[t]he issuing warrent [sic] had the wrong address,” as the
house searched was “102 5th Ave.” The suppression motion did not make this claim.
Kenneth Besk, a Santa Cruz County deputy sheriff, described his role in executing
the search warrant at the preliminary hearing and at the hearing on the suppression
motion. Besk assisted in the search of 102 Lake Avenue on March 23, 2011, at about
7:00 p.m. No evidence was presented that the residence searched was actually located at
102 Fifth Avenue. At the suppression motion, defendant testified that he was present
during the search “at or near” his residence at “502 Fifth Avenue.” (Our emphasis.)
In People v. Amador (2000) 24 Cal.4th 387, the California Supreme Court
determined that suppression was not required because a search warrant gave the wrong
street number for a residence and the wrong number of stories in the residence.
“Complete precision in describing the place to be searched is not required. . . . When the
warrant contains an inaccurate description, ‘[t]he test for determining the sufficiency of
the description of the place to be searched is whether the place to be searched is described
with sufficient particularity as to enable the executing officer to locate and identify the
premises with reasonable effort, and whether there is any reasonable probability that
another premise[s] might be mistakenly searched.’ ” (Id. at pp. 392-393.) There has been
no claim that it was not defendant’s residence that was searched.
2. THE SEARCH OF A DETACHED SHED
Defendant points out that the warrant did not specifically authorize searching a
“locked detached shed” at the top of the driveway. The suppression motion asserted that
“the shed was outside the scope of the search warrant.” (Capitalization omitted.)
At the suppression hearing, Officer Beck testified that a detached shed was about
four feet away from the main residence. A photograph showed the proximity of the
structures. Beck opened the padlock on the shed with a key from defendant’s keychain.
Beck located a functioning digital scale in a backpack in the shed. At the preliminary
examination, Beck recalled defendant saying the backpack belonged to someone else.
Defendant did not similarly disclaim ownership of the 29.2 grams of methamphetamine
later found concealed in his underwear.
At the suppression hearing, the prosecution argued that “the shed is clearly on the
curtilage of this property.” The trial court concluded, “I don’t believe that this is an out
building that was so far away that it is such that wouldn’t be covered in the search
warrant.”
The trial court’s conclusion is supported by authority. In an opinion relied on by
the prosecution, the Ninth Circuit Court of Appeals explained that “[a] search warrant for
a residence may include all other buildings and other objects within the curtilage of that
residence, even if not specifically referenced in the search warrant.” (U.S. v. Cannon (9th
Cir. 2001) 264 F.3d 875, 881.) A warrant authorizing the search of “the premises” is
reasonably understood to include “ ‘the land and the buildings thereof,’ ” including a tool
shed. (U.S. v. Griffin (7th Cir. 1987) 827 F.2d 1108, 1115.) This court has also
recognized this principle. (People v. Minder (1996) 46 Cal.App.4th 1784, 1788-1789.)
3. THE EXISTENCE OF PROBABLE CAUSE
The main point of the written suppression motion and defendant’s letter is that the
search warrant was not supported by probable cause. Santa Cruz County Sheriff’s
Sergeant Steve Carney provided a written statement of probable cause in support of the
search warrant. Carney described having training and over eight years’ experience in
narcotics enforcement. A portion of Carney’s affidavit was sealed to conceal the identity
of a confidential informant.
During the last week of February 2011, an untested confidential informant told
Carney that he had been buying methamphetamine from defendant for over one year,
including more than 10 times in the preceding four months, occasionally at defendant’s
residence. This tip led Carney to conduct surveillance of defendant’s residence on Lake
Avenue.
On two occasions, March 11, 2011, at around 8:15 p.m., and March 17, 2011, at
around 11:42 p.m., Carney observed a woman leaving defendant’s residence. After
leaving, each woman was stopped for a Vehicle Code violation and arrested for being
under the influence of methamphetamine. The first woman left abruptly after observing
Carney drive by in a marked patrol car. On her cell phone was a text message to
defendant dated March 9, 2011, asking to “ ‘meet for forty.’ ” In Carney’s experience, this
was a reference to a methamphetamine purchase. On the cell phone of the second woman
was a call to defendant about 14 minutes before her truck parked at his residence. She
possessed drug paraphernalia and baggies with methamphetamine residue. Also on
March 17, 2011, at about 10:21 p.m., Carney saw the car of a known methamphetamine
user parked in defendant’s driveway. She left the residence at 10:50 p.m. and Carney
observed no grounds to stop her for a Vehicle Code violation. Based on all of this
information, Carney believed that defendant was selling methamphetamine out of his
residence.
People v. Scott (2011) 52 Cal.4th 452, 483 instructs us: “ ‘In reviewing a search
conducted pursuant to a warrant, an appellate court inquires “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, citing Illinois v. Gates
(1983) 462 U.S. 213, 238-239.) “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.” (Illinois v. Gates, supra, 462 U.S. at p. 238.)
The magistrate’s determination of probable cause is entitled to deferential review.
(People v. Kraft, supra, 23 Cal.4th at p. 1041, citing Illinois v. Gates, supra, 462 U.S. at
p. 236.)’ ([People v. ]Carrington [(2009)] 47 Cal.4th [145] at p. 161.) Probable cause
sufficient for issuance of a warrant requires a showing in the supporting affidavit that
makes it substantially probable that there is specific property lawfully subject to seizure
presently located in the particular place for which the warrant is sought. (Id. at p. 161;
People v. Frank (1985) 38 Cal.3d 711, 744.)”
In Illinois v. Gates, the United State Supreme Court noted that “when an informant
is anonymous and untested, ‘[i]t is enough, for purposes of assessing probable cause, that
“[c]orroboration through other sources of information reduce[s] the chances of a reckless
or prevaricating tale,” thus providing a “substantial basis for crediting the hearsay.” ’ (Id.,
at pp. 244-245.)” (People v. Camarella (1991) 54 Cal.3d 592, 601.)
In People v. Gotfried (2003) 107 Cal.App.4th 254, 263-264, this court quoted with
approval the following passage from People v. Johnson (1990) 220 Cal.App.3d 742, 749.
“ ‘Because unverified information from an untested or unreliable informant is ordinarily
unreliable, it does not establish probable cause unless it is “corroborated in essential
respects by other facts, sources or circumstances.” [Citations.] For corroboration to be
adequate, it must pertain to the alleged criminal activity; accuracy of information
regarding the suspect generally is insufficient. [Citation.] Courts take a dim view of the
significance of “pedestrian facts” such as a suspect’s physical description, his residence
and his vehicles. [Citation.] However, the corroboration is sufficient if police
investigation has uncovered probative indications of criminal activity along the lines
suggested by the informant. [Citation.] Even observations of seemingly innocent activity
provide sufficient corroboration if the anonymous tip casts the activity in a suspicious
light. [Citations.]’ ”
Defendant accurately points out that “[n]o one was ever arrested with drugs” while
either at or leaving his house. Nevertheless, surveillance by Sergeant Carney revealed
that, in the space of a week, three individuals paid brief evening visits to defendant’s
residence, two in the late evening. Two of the individuals were determined to be under
the influence of methamphetamine after leaving defendant’s residence. The third, who
was not stopped, was known to Sergeant Carney to be a methamphetamine user. One had
a text message to defendant indicating a desire to purchase methamphetamine.
“Frequent brief visits to a residence by numerous persons is an indication of
narcotic traffic.” (People v. Kershaw (1983) 147 Cal.App.3d 750, 759, and cases there
cited; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1718.) While the visits in this case
were not the most frequent or numerous, it is striking that each of defendant’s evening
visitors was a methamphetamine user. There was no apparent error by the magistrate in
concluding that Carney’s surveillance of defendant had yielded sufficient corroboration
to demonstrate the veracity of the tip that defendant was selling methamphetamine.
C. REMAINING ISSUES
Defendant claims without support in the record that he was convicted of a
dismissed charge of being under the influence of a controlled substance. The record
shows that defendant pleaded no contest to being under the influence as alleged in count
3 in this case, while an unspecified charge in another case was dismissed at his change of
plea hearing.
The last issue defendant identifies is the trial court’s denial of his requests to
replace appointed counsel under People v. Marsden (1970) 2 Cal.3d 118. This occurred
twice after closed hearings on November 22, 2011, and August 16, 2012, and before
defendant changed his plea on September 12, 2012. A plea of guilty or no contest waives
any claim of pre-plea error in denying a defendant’s request to replace appointed counsel.
Such a claim of error is not recognized as affecting the legality of the proceedings.
(People v. Lobaugh (1987) 188 Cal.App.3d 780, 786; People v. Lovings (2004) 118
Cal.App.4th 1305, 1311.)
Our review of the entire record has revealed no arguable issues on appeal.
IV. DISPOSITION
The judgment is affirmed.
____________________________________
Grover, J.
WE CONCUR:
____________________________
Premo, Acting P.J.
____________________________
Mihara, J.