People v. Badry CA3

Filed 10/1/20 P. v. Badry CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C090714
Plaintiff and Respondent, (Super. Ct. No. 16F013497)
v.
ABDEL ALIEM EL BADRY,
Defendant and Appellant.
Defendant Abdel Aliem El Badry lured a woman to his house under the false
pretense of offering her a job cleaning his house and sexually assaulted her. A jury found
defendant guilty of penetration with a foreign object and false imprisonment.
On appeal, defendant contends the trial court (1) abused its discretion by admitting
evidence of two prior acts of sexual misconduct, and (2) erred by denying his motion to
suppress evidence collected pursuant to a search warrant he claims was not supported by
probable cause. Finding no error, we affirm.
1
FACTS AND PROCEEDINGS
Doe Incident
On or about May 23, 2014, Maria Doe was working picking up trash and selling
tamales out of her car. Defendant approached her and offered her a job cleaning his
house. Doe followed defendant to his house in her own car to give him an estimate for
the work.
Doe and defendant entered the property through a gate and the house through the
front door, both of which defendant locked behind him. Defendant showed Doe the
kitchen, a bedroom, and the back yard. They went into another bedroom, and defendant
pushed Doe onto the bed. He put his hands and a leg on her. She could not push him off.
Defendant opened a box next to the bed and took out two dildos, one of which was
“pinkish,” “almost white” in color, and the other darker. Doe saw another sex toy in the
box, which looked “like a butterfly, different colors.”
Defendant pulled off Doe’s pants and underwear, and penetrated her vaginal area
with the pinkish dildo. Doe testified defendant also put his penis in her mouth.
Doe’s phone rang, and defendant complied when she asked him to let her up. She
said she had to deliver some tamales and that she would come back later. She got dressed
and left the house.
Doe told her boyfriend and her daughter about the incident, but she did not call the
police. On June 26, 2015, Doe told a woman working as a security guard about the
incident, and the security guard called the police. Doe subsequently told police officers
what had happened, described defendant, and took them to defendant’s house, where they
saw the same truck defendant drove on the date of the incident.
Police obtained a search warrant and conducted a search of defendant’s home.
Pursuant to the search, officers found a black bag in defendant’s bedroom containing 12
sex toys and other objects. Doe identified two of the sex toys as used on her.
2
Prior Sexual Misconduct Related to K.H.
The trial court admitted evidence of two instances of defendant’s prior sexual
misconduct.1
In February 2003 defendant approached K.H. and her husband at a homeless
shelter, where they were waiting to get food. Defendant offered them work at his
residence, and he drove the couple to his home. Defendant instructed K.H. to wait inside
and watch his son while he instructed her husband on needed yardwork.
Defendant then came back inside, started to massage K.H.’s back or shoulders and
touched her buttocks, and did not stop when she asked him to. K.H. picked up
defendant’s son, hoping that would cause him to leave her alone.
Defendant went back outside, and K.H. attempted to follow him. He pushed her
and told her neither she nor his son were allowed outside. K.H. went to the front door,
but it was locked. Defendant grabbed K.H.’s arm, pushed her into the laundry room, and
grinded his groin against her from behind. He appeared to be aroused. He pushed her
shoulders down and said he “needed to feel the bone on [her] butt or [her] back.” He told
her to take her pants off. K.H. was trying to leave, but defendant would not let her.
Defendant’s son walked into the laundry room, and defendant stopped. K.H.
grabbed her belongings and went outside. She told her husband defendant had tried to
rape her. K.H. and her husband ran to a nearby store and called the police.
As a result of that incident, defendant pled guilty to felony false imprisonment.
Prior Sexual Misconduct Related to A.A.
In November 2013 A.A. and her boyfriend were homeless and walking towards a
motel to rent a room. Defendant drove up to the couple and offered them paid work on
1 Defendant contests the trial court’s ruling admitting the other acts evidence, which we
will discuss post.
3
his house. He offered to show them what needed to be done and then drop them off at the
motel.
A.A. and her boyfriend agreed, and they got in defendant’s truck. They all sat in
the front bench seat, with A.A. in the middle. On the ride, defendant began rubbing
A.A.’s leg. A.A. was uncomfortable, but she did not say anything because she and her
boyfriend needed the work.
At defendant’s house, defendant repeatedly stood “right behind” A.A. so she
would bump into him whenever she moved or turned. She felt uncomfortable, so she told
defendant they would consider the work but needed to check into their motel. Defendant
drove the couple back to the motel, and he continued rubbing A.A.’s leg and arm on the
drive. She did not say anything because he did not want defendant to throw them out of
the car on the side of the freeway.
When they arrived at the motel, A.A.’s boyfriend went inside to check in.
Defendant told A.A. to write down her phone number if they were interested in the work.
As she wrote down her phone number, defendant reached his hand up her sleeve and tried
to grope her breasts. A.A. pulled away quickly, grabbed her belongings, and ran around
the side of the motel.
When A.A. and her boyfriend got into their room, defendant attempted to call
A.A. Defendant walked around the motel for five to 10 minutes looking for them before
giving up and leaving. A.A. called the police when defendant left. A.A. did not want to
press charges; she told police she just wanted “it to be noted . . . that he had tried
something . . . in case it ever happened again.”
Procedural History
The jury found defendant guilty of penetration by a foreign object (Pen. Code,
§ 289, subd. (a)(1); count one) and false imprisonment (Pen. Code, § 236; count two).
The trial court found defendant ineligible for probation and sentenced him to the upper
4
term of eight years in prison on the penetration count and stayed imposition of the
sentence on the false imprisonment count pursuant to Penal Code section 654.
Defendant timely filed a notice of appeal. Additional facts will be set out in the
Discussion as necessary.
DISCUSSION
I
Evidence Of Uncharged Offenses
Defendant contends the trial court abused its discretion by permitting the
prosecution to introduce evidence of the incidents involving K.H. and A.A. under
Evidence Code sections 1108 and 1101, subdivision (b).2 He argues: (1) the evidence
was inadmissible under section 1101, subdivision (b) because the uncharged acts were
insufficiently similar to the charged offense; (2) evidence of the incident involving K.H.
was inadmissible under section 1108 because defendant was not convicted “of any sex
offense” regarding that incident; and (3) even if evidence of the incidents involving K.H.
and A.A. were admissible under section 1101, subdivision (b) and section 1108, the
evidence should have been excluded due to “the exceedingly prejudicial nature of the
evidence.”3 We disagree.
A. Legal Background
Section 1101, subdivision (a) establishes a general rule that character evidence is
not admissible to prove a defendant’s conduct on a specific occasion. That general rule is
2 Further undesignated statutory references are to the Evidence Code.
3 Defendant also argues that section 1108 unconstitutionally deprives him of his right to
due process under the Federal Constitution. However, defendant acknowledges that our
Supreme Court has held section 1108 does not violate a defendant’s right to due process.
(People v. Falsetta (1999) 21 Cal.4th 903, 917.) We are bound to follow Falsetta. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, we reject
defendant’s claim.
5
subject to two significant limitations. First, under section 1101, subdivision (b), evidence
that defendant committed a “crime, civil wrong, or other act” may be admissible to prove
“some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, or whether a defendant in a prosecution for an unlawful
sexual act or attempted unlawful sexual act did not reasonably and in good faith believe
that the victim consented) other than his or her disposition to commit such an act.”
Second, the general rule stated by section 1101, subdivision (a) is limited by
section 1108, which provides in relevant part: “(a) In a criminal action in which the
defendant is accused of a sexual offense, evidence of the defendant’s commission of
another sexual offense or offenses is not made inadmissible by Section 1101, if the
evidence is not inadmissible pursuant to Section 352.” Therefore, where evidence is
admissible under section 1108, the limitations of section 1101 are inapplicable. (People
v. Britt (2002) 104 Cal.App.4th 500, 505-506 (Britt).) As stated by our Supreme Court,
section 1108 “ ‘ “permits courts to admit such evidence on a common sense basis--
without a precondition of finding a ‘non-character’ purpose for which it is relevant--and
permits rational assessment by juries of evidence so admitted. This includes
consideration of the other sexual offenses as evidence of the defendant’s disposition to
commit such crimes, and for its bearing on the probability or improbability that the
defendant has been falsely or mistakenly accused of such an offense.” ’ [Citation.]”
(People v. Falsetta, supra, 21 Cal.4th at p. 912.) “Nearly every published opinion
interpreting section 1108 (including some from [our Supreme Court]) has recognized that
this provision allows, when proper, evidence of prior uncharged sexual offenses to prove
propensity. [Citations.]” (People v. Villatoro (2012) 54 Cal.4th 1152, 1160.) Section
1108 applies to both charged and uncharged prior sexual misconduct. (Villatoro, at p.
1164.)
Where, as here, the trial court admitted testimony under both sections 1101 and
1108, we will find error in its admission only if the testimony were inadmissible under
6
both sections. (People v. Branch (2001) 91 Cal.App.4th 274, 280-281 (Branch).) In
other words, if the other acts evidence is admissible under section 1108, we do not need
to consider whether the evidence is also admissible under section 1101. (See People v.
Erskine (2019) 7 Cal.5th 279, 295-296 (Erskine) [where evidence is admissible under
section 1108, it is not necessary to assess whether the evidence is also admissible under
section 1101]; Britt, supra, 104 Cal.App.4th at p. 506 [the trial court correctly admitted
testimony of uncharged acts under section 1108; therefore, the court did not address
admissibility under section 1101].)
B. Analysis
In order to address defendant’s arguments regarding the admissibility of the
evidence of his prior sexual misconduct, we must first determine whether the evidence of
the incidents involving K.H. and A.A. was admissible under section 1108.
Section 1108, subdivision (a) provides that only evidence of a qualifying “sexual
offense” may be admitted under that section. Section 1108, subdivision (d) defines
“sexual offense” in part as any “sexual battery” or attempted sexual battery as defined by
Penal Code section 243.4. Penal Code section 243.4, subdivision (e)(1) provides that a
person commits “sexual battery” in if the person “touches an intimate part of another
person, if the touching is against the will of the person touched, and is for the specific
purpose of sexual arousal, sexual gratification, or sexual abuse.” “Touches” is defined as
“physical contact with another person, whether accomplished directly, through the
clothing of the person committing the offense, or through the clothing of the victim.”
(Id., subd (e)(2).) “Intimate part” is defined as “the sexual organ, anus, groin, or buttocks
of any person, and the breast of a female.” (Id., subd. (g)(1).)
The incidents involving K.H. and A.A. both satisfy the definition of “sexual
offense” in section 1108, subdivision (d). K.H. alleged that defendant pressed his groin
up against her buttocks while appearing aroused. This satisfies the requirements of a
sexual battery for purposes of Penal Code section 243.4, subdivision (e)(1). Similarly,
7
A.A. testified defendant reached his hand up her sleeve and attempted to touch her breast,
only failing to do so because she pulled away from him. This constitutes an attempted
sexual battery under Penal Code section 243.4, subdivision (e).
Because defendant’s prior acts of sexual misconduct are admissible under section
1108--subject to the court’s determination regarding section 352, which we discuss post--
we do not need to consider whether the evidence is admissible under section 1101.
(Erskine, supra, 7 Cal.5th at pp. 295-296; Britt, supra, 104 Cal.App.4th at p. 506.) We
also reject defendant’s argument that the incident involving K.H. is inadmissible because
it did not result in a sexual offense conviction. To be admissible as a prior sexual offense
under section 1108, there is no requirement that the offense be charged or result in a
sexual offense conviction. (See People v. Villatoro, supra, 54 Cal.4th at p. 1164 [section
1108 applies to both charged and uncharged prior sexual misconduct].)
Defendant asserts that even if the evidence is otherwise admissible under section
1108, the trial court abused its discretion by not excluding the evidence under section
352. Section 352 provides: “The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” “We will reverse only if
the court’s ruling was ‘arbitrary, whimsical, or capricious as a matter of law.
[Citations.]’ ” (Branch, supra, 91 Cal.App.4th at p. 282.)
“ ‘[S]ection 1108 affects the practical operation of . . . section 352 balancing
“ ‘because admission and consideration of evidence of other sexual offenses to show
character or disposition would be no longer treated as intrinsically prejudicial or
impermissible. Hence, evidence offered under [section] 1108 could not be excluded on
the basis of [section] 352 unless “the probability that its admission will . . . create
substantial danger of undue prejudice” . . . substantially outweighed its probative value
concerning the defendant’s disposition to commit the sexual offense or offenses with
8
which he is charged and other matters relevant to the determination of the charge. As
with other forms of relevant evidence that are not subject to any exclusionary principle,
the presumption will be in favor of admission.’ ” ’ ” (People v. Loy (2011) 52 Cal.4th 46,
62.)
“Undue prejudice” in the context of section 352 “ ‘is not so sweeping as to include
any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is
used in a section 352 context, merely because it undermines the opponent’s position or
shores up that of the proponent. The ability to do so is what makes evidence relevant.
The code speaks in terms of undue prejudice . . . . “ ‘The “prejudice” referred to in
Evidence Code section 352 applies to evidence which uniquely tends to evoke an
emotional bias against the defendant as an individual and which has very little effect on
the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” ’
[Citation.]” [Citation.]
‘The prejudice that section 352 “ ‘is designed to avoid is not the prejudice or
damage to a defense that naturally flows from relevant, highly probative evidence.’
[Citations]. ‘Rather, the statute uses the word in its etymological sense of “prejudging” a
person or cause on the basis of extraneous factors. [Citation.]’ [Citation.]” . . . In other
words, evidence should be excluded as unduly prejudicial when it is of such nature as to
inflame the emotions of the jury, motivating them to use the information, not to logically
evaluate the point upon which it is relevant, but to reward or punish one side because of
the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial
because of the substantial likelihood the jury will use it for an illegitimate purpose.’
[Citation.]” (Branch, supra, 91 Cal.App.4th at p. 286.)
“As to admissibility under section 352, evidence of past sexual offenses proffered
under section 1108 requires the court to ‘undertake[ ] a careful and specialized inquiry to
determine whether the danger of undue prejudice from the propensity evidence
substantially outweighs its probative value.’ [Citation.] Among the factors to consider
9
are the ‘ “nature, relevance, and possible remoteness [of the evidence], the degree of
certainty of its commission and the likelihood of confusing, misleading, or distracting the
jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial
impact on the jurors, the burden on the defendant in defending against the uncharged
offense, and the availability of less prejudicial alternatives to its outright admission, such
as admitting some but not all of the defendant’s other sex offenses.” ’ [Citations.]”
(Erskine, supra, 7 Cal.5th at p. 296.)
The evidence of defendant’s prior sexual misconduct is highly relevant to show his
propensity for committing sex crimes. “[A] ‘prior sexual offense is indisputably relevant
in a prosecution for another sexual offense.’ ” (Branch, supra, 91 Cal.App.4th at pp.
282-283.) “Indeed, the reason for excluding evidence of prior sexual offenses in such
cases is not because the evidence lacks probative value; rather, it is because ‘ “it has too
much.” [Citation.]’ ” (Id. at p. 283.)
With respect to the remoteness of the prior offenses, no bright line rule exists.
(People v. Ewoldt (1994) 7 Cal.4th 380, 405 [12-year gap not too great]; Branch, supra,
91 Cal.App.4th at p. 284 [30-year gap between offenses is “substantial,” but similarity
between offenses can balance out remoteness]; People v. Harris (1998) 60 Cal.App.4th
727, 739 [finding a 23-year gap between sexual offenses with no intervening criminal
conduct militates against admission].) The incident involving K.H. occurred in 2003, the
incident involving A.A. occurred in 2013, and the charged offense occurred in 2014. The
11-year gap between the K.H. incident and the charged offense is less than the 12-year
gap in Ewoldt, which our Supreme Court observed was not too great. Additionally, the
incident involving A.A. occurred between the K.H. incident and the charged offense,
which narrows the gap between defendant’s incidents of sexual misconduct.
Moreover, the evidence regarding defendant’s previous misconduct is quite similar
to the charged offense, which balances out any remoteness. (See Branch, supra, 91
Cal.App.4th at p. 284.) In each instance, defendant lured a vulnerable woman to his
10
home under the guise of a job opportunity. Defendant went through the motions of
discussing the work before making unwanted sexual advances. Defendant points to the
differences between the incidents: both of the prior incidents involved both a man and a
woman, both couples rode in defendant’s car rather than their own car, both K.H. and
A.A. remained clothed, and neither prior incident involved sex toys. But while we agree
there are slight differences in the details of each incident, we conclude the similarities of
defendant’s preferred method of luring financially vulnerable women to his home with
the promise of a paying job but actually for purposes of making sexual advancements
toward them far outweigh the differences present in each incident. The remoteness of the
incident involving K.H. does not militate against admitting the evidence.
Next, we consider whether the admission of the prior instances of defendant’s
sexual misconduct was likely to confuse the issues before the jury. As we have noted,
one of the two prior incidents was never prosecuted and the other resulted in a conviction
for felony false imprisonment. Our Supreme Court has recognized that a prior offense
not resulting in a conviction could increase the likelihood that the jury (1) will attempt to
punish defendant for the uncharged offenses and (2) confuse the issues because the jury
has to determine whether the uncharged conduct actually occurred. (People v. Ewoldt,
supra, 7 Cal.4th at p. 405.) Here, nothing in the record suggests that either woman
involved in defendant’s prior instances of sexual misconduct was not telling the truth, and
nothing in the record suggests the jury was confused or attempted to punish defendant for
his previous misconduct. Evidence of each prior incident included the testimony of a
single witness, which reduces the risk of confusing the jury by conducting a trial within a
trial. Because only one witness testified in a straightforward narrative as to each incident
and was subject to cross-examination, the burden on defendant to defend against the
evidence was not excessively onerous. Similarly, we conclude there was no possibility of
admitting less prejudicial evidence supporting each incident; offering a single witness to
11
testify about each prior incident and subjecting that witness to cross-examination is
nearly the bare minimum that the prosecution could have done to admit the evidence.
Additionally, the charged offense includes defendant forcibly removing Doe’s
pants and using a sex toy to penetrate her vagina. That conduct is more inflammatory
than either of the previous incidents. We see nothing in the record to suggest that
evidence of the prior incidents would have inflamed the jury to convict defendant based
on the other incidents and not based on the charged conduct.
Finally, defendant argues the trial court twice repeated that defendant had in fact
committed the prior offenses. But defendant only points to the following sentence by the
court: “You may also hear evidence of the defendant’s prior acts of other behavior of
sexual misconduct, which would be offered, in part, to show that the defendant had a
common plan, a motive, or an intent to commit sexual misconduct.” We disagree the
court’s statement amounts to the court asserting that defendant had committed the
previous offenses. The court’s statement simply informed the jury that it may hear
evidence of defendant’s prior acts, not that defendant had indeed committed those acts.
Moreover, before trial defense counsel expressly agreed to the court’s phrasing.
We conclude the trial court did not abuse its discretion by admitting the evidence
under section 1108 or by not excluding the evidence under section 352.
II
Motion To Suppress Evidence
Defendant contends the trial court erred by denying his motion to suppress
evidence obtained pursuant to a search warrant. He argues the warrant should not have
been issued because the information used to obtain the warrant was too stale to provide
probable cause that the sought-after evidence would still be in defendant’s residence so
long after the offense occurred. Specifically, he claims the warrant “failed to provide any
evidence that sex toys would be in the residence almost two years” after the crime.
12
Because we conclude there was probable cause to issue the warrant, we reject defendant’s
contention.
A. Factual and Procedural Background
The incident giving rise to the charges occurred on or about May 23, 2014. Doe
informed the police of the incident on June 26, 2015. Pursuant to Doe’s report and
following additional investigation, in April 2016 a detective applied for a warrant to
search defendant’s home for, among other things, the sex toys Doe observed in the house.
The warrant application’s statement of probable cause included a summary of
Doe’s interactions with police. Doe described the incident and described the truck
defendant drove. She stated defendant grabbed a pink-colored sex toy and a multi-
colored “butterfly” sex toy and used one of them to penetrate her vagina. In a follow-up
interview, Doe stated defendant grabbed two dildos--one pink and one white--and that
she saw the butterfly-shaped sex toy. She said all three toys were in a black box located
on a table next to the bed. Doe brought officers to defendant’s house, where she
identified defendant’s truck. Doe was unable to identify defendant in a photo lineup.
The statement of probable cause stated defendant’s address as the house Doe
identified for officers, listed several vehicles as registered to defendant--including the
truck Doe identified at defendant’s house--and described multiple police reports of other
instances of sexual assault involving defendant.
The affiant stated: “[M]y training and experience has taught me that it is common
for sexual assault suspects to keep mementos, trophies, diaries, journals, records and
other writings, in order to memorialize their sexual experiences, encounters and fantasies.
These mementos may include photographs, CD’s, DVD, videos, and/or computer images.
These mementos will be maintained within their computers, homes, vehicles, storage
facilities, etc.” He also asserted that sexual offenders collect and use “sexually explicit
materials” and “rarely, if ever, dispose of their sexually explicit materials, especially
when it is used during the commission of their crimes, and those materials are treated as
13
prized possessions.” Further, the affiant stated: “These people go to great lengths to
conceal and protect from discovery, theft, and damage, their collections of illicit
materials,” and “often keep mementoes or ‘trophies’ of their encounters with specific
victims as a means of remembrance.”
The affidavit was signed on April 6, 2016, and executed on April 7. Police
officers seized various sex toys later introduced as evidence against defendant at trial,
including the two Doe subsequently identified.
Before trial, defendant moved to suppress evidence of the sex toys under Penal
Code section 1538.5; he argued the information supporting the warrant application was
stale and could not supply probable cause for the search. The trial court denied the
motion. The court noted the affiant’s assertion that people who commit sex crimes
“frequently, and I would say overwhelmingly, retain evidence of those crimes.” The
court stated its view there “was sufficient probable cause to believe that the Defendant
still possessed that evidence . . . .”
B. Legal Background
“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.’ [Citation.] ‘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 [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 [(1983)] 462 U.S. [213,] 238.) The magistrate’s determination of probable cause is
entitled to deferential review. [Citation.]” (People v. Carrington (2009) 47 Cal.4th 145,
161 (Carrington).)
If the particular case is on the margins as to the question of probable cause, we
generally uphold the warrant. (See People v. French (2011) 201 Cal.App.4th 1307, 1315
14
[“because ‘[r]easonable minds frequently may differ on the question whether a particular
affidavit establishes probable cause,’ . . . ‘ “doubtful or marginal” ’ cases are to be
resolved with a preference for upholding a search under a warrant”].)
The showing of probable cause “must appear in the affidavit offered in support of
the warrant.” (Carrington, supra, 47 Cal.4th at p. 161.) If the affidavit does not provide
probable cause to believe material to be seized is still on the premises to be searched
when the warrant is sought, the affidavit does not demonstrate probable cause for the
search. (People v. Cleland (1990) 225 Cal.App.3d 388, 393.)
“[L]aw enforcement officers may draw upon their expertise to interpret the facts in
a search warrant application, and such expertise may be considered by the magistrate as a
factor supporting probable cause.” (People v. Nicholls (2008) 159 Cal.App.4th 703,
711.) The magistrate is equally entitled to rely on “the conclusions of experienced law
enforcement officers in weighing the evidence supporting a request for a search warrant
as to where evidence of crime is likely to be found. [Citation.] It is not essential that
there be direct evidence that such evidence will be at a particular location. Rather, the
magistrate ‘ “is entitled to draw reasonable inferences about where evidence is likely to
be kept, based on the nature of the evidence and the type of offense.” ’ [Citation.]”
(People v. Sandlin (1991) 230 Cal.App.3d 1310, 1315.)
Probable cause to support a search cannot properly be based on old, stale
information. “[I]nformation is stale, and hence unworthy of weight in the magistrate’s
consideration of an affidavit, unless the information consists of ‘facts so closely related to
the time of the issue of the warrant as to justify a finding of probable case at that
time.’ [Citations.]” (Alexander v. Superior Court (1973) 9 Cal.3d 387, 393; see People
v. Hirata (2009) 175 Cal.App.4th 1499, 1504 [“Stale information in a search warrant
affidavit does not establish present probable cause for a search”].) No bright-line rule
exists in determining at which point information is considered stale for purposes of
demonstrating probable cause for a search warrant. (Carrington, supra, 47 Cal.4th at p.
15
163.) “Rather, ‘the question of staleness depends on the facts of each case.’ [Citation.]”
(Id. at pp. 163-164.) “Courts have upheld warrants despite delays between evidence of
criminal activity and the issuance of a warrant, when there is reason to believe that
criminal activity is ongoing or that evidence of criminality remains on the premises.
[Citations.]” (Id. at p. 164; see also People v. Stipo (2011) 195 Cal.App.4th 664, 672
[“Substantial delays do not render warrants stale where the defendant is not likely to
dispose of the items police seek to seize”].)
D. Analysis
Defendant contends the information supporting the search warrant application did
not provide probable cause to search. He argues: (1) the facts stated in the affidavit were
not made close in time to the commission of the crime, so it was unlikely the items
sought would still be in the house at the time of the search; (2) there is no evidence
defendant used sex toys in other instances, so there is no evidence of a continuing course
of criminal conduct; (3) the “mementos” referred to by the affiant did not include “sex
toys”; and (4) the affidavit provided no current information that sex toys were still
located in defendant’s house.
Defendant argues that delays of longer than four weeks are generally considered
insufficient to demonstrate present probable cause unless (1) there is evidence of ongoing
criminal activity or (2) the nature of the activity is such as to justify the inference that it
will continue until the time of the search. (See People v. Hulland (2003) 110
Cal.App.4th 1646, 1652.) But Hulland concerned probable cause for a warrant to search
for controlled substances. (Id. at pp. 1649, 1652.) Limiting information to that less than
four weeks old makes sense in the context of determining probable cause to search a
premises suspected of containing evidence of a controlled substances operation, a highly
transitory activity. (See, e.g., People v. Brown (1985) 166 Cal.App.3d 1166, 1169 [sale
of cocaine or heroin highly transitory].) There is no such presumption of staleness here.
Instead, as we have noted, appellate review of a claim of staleness is both fact-specific
16
and deferential. Depending on the nature of the crimes and the specific facts of the case,
evidence set forth in the affidavit may be sufficiently fresh to provide probable cause
even though the information is much older than the two years at issue in this case. (See,
inter alia, People v. Lazarus (2015) 238 Cal.App.4th 734, 764-765 [in a 20-year-old
murder investigation where the motive was “romantic obsession,” it was probable that
defendant would have “continued to retain items evidencing her relationship” with the
victim and her husband].)
Here, the affiant provided information that people who commit sex offenses often
retain trophies or mementos as a way to remember their crimes. The affiant asserted that
the memento or trophy from a sex crime often becomes a prized possession of the person
who committed the crime, unlikely to ever be discarded. This information constitutes
evidence that items related to sex crimes are likely to be retained. Defendant does not
claim that this statement is false or otherwise suspect; instead, he argues that the affidavit
did not specifically discuss retaining sex toys. While it is true that this specific claim was
not made by the affiant, the affidavit did generally discuss retention of evidence of sex
crimes--trophies and mementos--that surely could be construed to include apparent
instrumentalities, such as the dildos sought here.
Finally, we disagree that there is no probable cause because Doe did not provide
current information that sex toys were still located in defendant’s house. Doe provided
information that defendant used a sex toy kept in his house to commit a sex offense
against her. Combined with the affiant’s assertion that people who commit sex offenses
are likely to retain mementos of their crimes, there was a fair probability that defendant
continued to keep the sex toys at his house. Defendant does not challenge the truth of
this information, or the expert’s qualifications, and, as we have described, the information
he argues is absent from the affidavit is actually encompassed by the general assertions
contained therein.
17
The information supporting the affidavit was not so stale as to invalidate its
evidentiary value, and the magistrate had a substantial basis for concluding a fair
probability existed that a search would uncover the sex toys used in the assault against
Doe. Therefore, we reject defendant’s claim of error.
DISPOSITION
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Renner, J.
18